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2017 DIGILAW 723 (ORI)

Sudam Charan Giri v. Collector, Balasore

2017-07-14

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. Plaintiffs are appellants against a confirming judgment in a suit for correction of major settlement ROR in ‘B’ schedule property and declaration of ‘C’ schedule property as ‘Bari’ instead of ‘Smasan’. 2. The case of the plaintiffs is that ‘A’ schedule property belonged to Madan Mohan Giri, Bholanath Giri and Gopal Chandra Giri, S/o-Late Jati Giri. They were in possession of the land. After death of Madan Giri, Bholanath Giri and Gopal Chandra Giri, their heirs, plaintiffs, inherited the suit property and remain in possession of the same. They used to pay rent and obtained receipts. During the major settlement operation, they applied for correction of the area of the suit land and to record the same in the name of the plaintiffs along with other co-sharers. The Asst. Settlement Officer physically ascertained the factum of possession and assured the plaintiffs that ROR would be prepared in respect of Ac.1.10 dec. of land. But then the final ROR the area has been reduced to Ac.0.87 dec. from Ac.1.10 dec. The reduced area has been amalgamated with ‘C’ schedule land and recorded as ‘Smasan’. Thereafter they sent notice to the defendant for some necessary corrections. On the basis of erroneous entry, the local R.I. threatened the plaintiffs to initiate land encroachment case against them and refused to accept rent. With this factual scenario, they instituted O.S. No.377 of 199-I in the court of the learned Civil Judge (Jr. Divn.), Balasore seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. The specific case of the defendant is that the disputed M.S. Plot Nos.415 and 430 measuring area Ac.0.18 dec. and Ac.0.27 dec. respectively under M.S. Khata No.169 have been recorded as ‘Smasan’ under kissam ‘Sarbasadharana’. The aforementioned plots correspond to CS Plot No.268. The reduced area of the plaintiffs’ land has not been amalgamated with the disputed plots. Further during the settlement operation, the authorities visited the spot and found that the plaintiffs were in possession of only Ac.0.99 dec. and accordingly the said area was recorded in their name under Khata No.144. 4. Stemming on the pleadings of the parties, learned trial court struck three issues. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf seven documents had been exhibited. and accordingly the said area was recorded in their name under Khata No.144. 4. Stemming on the pleadings of the parties, learned trial court struck three issues. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf seven documents had been exhibited. No evidence was adduced by the defendant. The suit was dismissed. Being aggrieved, the plaintiffs filed R.F.A. No.22/73 of 2003/2001 in the court of the learned Additional District Judge, Balasore, which was eventually dismissed. 5. The second appeal was admitted on the following substantial questions of law. “Whether the learned appellate court has erred in law in not appointing a fresh amin commissioner when it rejected a report of the earlier commissioner since the dispute pertains to the amalgamation of land ?” 6. Mr. Mohanty, learned counsel for the appellant submits that the dispute pertains to measurement of land. Learned appellate court appointed a commissioner for measurement of land. Since there was some flaw, the report of the commissioner was rejected. Instead of appointing a fresh commissioner, learned appellate court decided the appeal on merit. 7. Per contra, Mr. Panda, learned Additional Government Advocate for the respondent submits that the suit land has been recorded as ‘Smasan’. There is no perversity or illegality in the finding of the courts below. In view of the same, this Court should not interfere with the second appeal. 8. The case of the plaintiffs is that they are the owners in possession of an area Ac.1.10 dec. of land. But in the hal settlement ROR, area has been reduced to Ac.0.87 dec. Learned appellate court has rightly instituted the commissioner for demarcation of land. Noticing some flaw, learned appellate court rejected the report of the commissioner. In such eventuality, learned appellate court ought to have appointed a fresh commissioner for measurement of the land. 9. In Mahendranath Parida vrs. Purnananda Parida and others, 64(1987) CLT 722, this Court held that when the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. 10. Since the dispute pertains to identification and measurement of land, learned appellate court is not correct in deciding the appeal without appointment of a fresh commissioner. 11. 10. Since the dispute pertains to identification and measurement of land, learned appellate court is not correct in deciding the appeal without appointment of a fresh commissioner. 11. Resultantly, the judgment and decree dated 23.11.2010 and 4.12.2010 respectively passed by the learned Additional District Judge, Balasore in R.F.A. No.22/73 of 2003/2001 is set aside. The matter is remitted back to the learned appellate court with a direction to appoint a fresh commissioner and decide the appeal on merit. Since the appeal is of the year 2001, learned appellate court shall conclude the hearing of the same by end of December, 2017. The appeal is allowed. LCR be sent back to the learned appellate court.