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2017 DIGILAW 570 (ORI)

Kasinath Tung v. Jyoti Manjari Nayak

2017-05-11

A.K.RATH

body2017
JUDGMENT : DR. A.K. RATH, J. 1. Defendant is the appellant against an affirming judgment. 2. Respondent as plaintiff instituted C.S. No. 218 of 2009 in the court of the learned Civil Judge (Senior Division), Angul for recovery of possession and permanent injunction impleading the appellant as defendant. The case of the plaintiff is that she purchased the suit land from one Rabindra Naik by means of a registered sale deed dated 19.11.2007. She is the owner in possession of the suit land. The defendant, who has no manner of title over the same, created disturbance in her possession. 3. Pursuant to issuance of summons, defendant entered appearance and filed a written statement-cum-counter claim denying the assertions made in the plaint. The case of the defendant is that he has purchased the plot no.121/134 appertaining to Khata No. 91 from one Brundabati Naik on 05.07.1995. He is in possession of the said land. The plaintiff is not sure of the suit land. She asserts possession over the suit land and as such the defendant filed counter claim seeking declaration of his right over the suit land. 4. On the inter se pleadings of the parties, the learned trial court struck twelve issues. To substantiate the case, the plaintiff had examined four witnesses including herself and on their behalf fifteen documents had been exhibited. Defendant had examined five witnesses including himself and on their behalf, twelve documents had been exhibited. The suit was decreed. The defendant has filed R.F.A. No. 06 of 2015 in the court of the learned District Judge, Angul, which was eventually dismissed. 5. Mr. Das, learned counsel for the appellant, submits that in absence of any prayer for declaration of right, the simple suit for recovery of possession and permanent injunction is not maintainable. The suit land is not identifiable. Learned appellate court has not dealt with all the issues and as such the judgment is vulnerable. He relies upon the decisions of the apex court in the case of Santosh Hazari vs. Purushottam Tiwari, AIR 2001 SC 965 and this Court in the case of Sudarsan Prusty vs. Rabindranath Prusty and others, 1989 (I) OLR- 379, Braja Kishore Sahu and Others vs. Smt. Sailabala Sahu and Others, 1995 (II) OLR 348. 6. The plaintiff asserts that she is the owner in possession of Plot no. 121/318 appertaining to Khata No.148, area of Ac.0.04 dec. 6. The plaintiff asserts that she is the owner in possession of Plot no. 121/318 appertaining to Khata No.148, area of Ac.0.04 dec. of mouza-Panchamahala in the district of Angul. According to her, defendant has no manner of title over the same. The defendant in the written statement-cum-counter claim pleaded that he has purchased plot no.121/234 appertaining to Khata No. 91 from one Brundabati Naik on 05.07.1995. 7. In the case of Sudarsan Prusty vs. Rabindranath Prusty and others, 1989 (I) OLR-379, this Court held that in case of perpetual injunction, possession of the plaintiff is material to be decided. When the plaintiff is not in possession, a simple suit for injunction would not be maintainable. The same view has been reiterated in the case of Braja Kishore Sahu (supra). 8. Unless the defendant raises a cloud over the plaintiff's title, there is no need to file a suit for declaration of her right over the suit land. In Anathula Sudhakar vs P. Buchi Reddy (Dead) by L.Rs & Others, (2008) 4 SCC 594 , the apex court in Paragraph 14 of the report held thus: “14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.” The same view was reiterated in the case of Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma alias Nacharamma, (2008) 15 SCC 150 . 9. The next question falls for consideration as to whether the learned appellate court had dealt with all issues. 10. In Santosh Hazari (supra), the apex court held thus: “15. xxx xxx xxx. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudnary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage, adopted by the appellate Court for shirking the duty cast on it. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage, adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of the fact (See Madhusudam Das v. Smt. Narayani Bai, AIR 1983 SC 114 ). The rule is-and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the creditability of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to whether the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.” 11. In paragraph-7 of the judgment, the learned appellate court came to hold that the vendors of the appellant and respondent had two distinct lands having plot numbers and khata numbers. There appears to be no dispute with regard to the identity of the land. A land can be identified either by plot number or by boundary. Since the lands of the respondent and appellant respectively are clearly identifiable and distinguishable and since they claim their title and possession over the respective lands having distinct plot numbers and khata numbers, no dispute exists in identity of the suit land. The defendant in his written statement pleaded that he does not have nexus with the suit land. The appellate court in a well discussed judgment delved deep into the matter and dismissed the appeal. 12. In view of the specific case of the defendant that he has no claim over the suit land, both the courts are justified in negativing the claim of the defendant. 13. The matter may be examined from another angle. The counter claim filed by the defendant is thoroughly misconceived. The defendant has filed the counter claim in respect of the property, which is not the subject-matter of the suit. 14. In case of Purna Chandra Biswal vs. Kiran Kumari Brahma (C.M.P. No. 1699 of 2014 disposed of on 17.03.2017), this Court held thus:- “9. The counter claim filed by the defendant is thoroughly misconceived. The defendant has filed the counter claim in respect of the property, which is not the subject-matter of the suit. 14. In case of Purna Chandra Biswal vs. Kiran Kumari Brahma (C.M.P. No. 1699 of 2014 disposed of on 17.03.2017), this Court held thus:- “9. The words “any right” appearing in Rule 6(A) (1) of order 8 CPC mean right over the suit land. The same must be in respect of cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit. Thus the defendant cannot file a counter claim in respect of the property, which is not the subject-matter of suit.” 15. As a sequel to the above discussion, the appeal is dismissed, since the same does not involve any substantial question of law. No costs.