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2017 DIGILAW 726 (ORI)

Dasarathi Panigrahi v. State of Orissa

2017-07-14

A.K.RATH

body2017
JUDGMENT : A.K.Rath, J. This is a plaintiff’s appeal against a reversing judgment in a suit for declaration of right, title and interest over the suit land, declaration of encroachment case as not maintainable and permanent injunction. 2. The case of the plaintiff is that sabik plot no.2578, area Ac.0.09 dec. and sabik plot no.2579, area Ac.0.05 dec. appertaining to sabik holding no.63 of village Chittalpur was recorded in the name of late Nanda Panigrahi, the grandfather of the plaintiff. After death of Nanda, his only son, Jagabandhu inherited the property and was in possession of the same. Sabik plot no.2580 appertaining to sabik holding no.136 was recorded in the name of Lingaraj Panigrahi, one of the agnates of late Nanda. Lingaraj sold the property measuring an area Ac.0.09 dec. to Nanda and delivered possession. After death of Nanda, his son Jagabadhu became the owner of the land. The above three sabik plots had been amalgamated in hal plot no.1897 appertaining to hal holding no.71, but then the area measuring Ac.0.23 dec. had been reduced to Ac.0.19 dec. in the hal settlement. Taking advantage of wrong recording in the hal settlement, the Tahasildar, Hindol, defendant no.2 initiated Encroachment Case No.5/86-87 against the plaintiff alleging encroachment of Ac.0½ appertaining to plot no.1900, holding no.339 of village Chittalpur. Kumud, son of the plaintiff, was a minor. Defendant no.2 took an undertaking from him that the land under encroachment had been vacated. The plaintiff is not bound by the same. The proceeding is bad in law. It is further pleaded that the plaintiff has right, title and interest over half decimal of land. He is in possession of the land peacefully and continuously. With this factual scenario, he instituted T.S.No.3 of 1989 in the court of the learned Additional Munsif, Hindol seeking the relief mentioned supra. 3. The defendants filed a written statement denying the allegations made in the plaint. It is stated that the plaintiff had not acquired any right, title and interest over the suit land. He was a trespasser for which proceeding under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as “O.P.L.E.Act”) was initiated against him. He was duly evicted. Instead of filing the appeal, he instituted the suit. The suit is not maintainable. The defendants had admitted that plot no.1897 under holding no.71 of the hal record of right, measuring an area Ac.0.19 dec. He was duly evicted. Instead of filing the appeal, he instituted the suit. The suit is not maintainable. The defendants had admitted that plot no.1897 under holding no.71 of the hal record of right, measuring an area Ac.0.19 dec. has been recorded in the name of Jagabandhu Panigrahi, the son of Nanda Panigrahi. It was further pleased that in the event the plaintiff was aggrieved by wrong recording, he could have taken steps under the provisions of the Orissa Survey and Settlement Act. The R.I., Rason visited the spot on 5.11.1987 and found that encroachment has been vacated. It was ascertained from the Electoral Roll of village that Kumud Panigrahi son of the plaintiff was aged 24 years, who in absence of his father, reported in writing that the land under encroachment had been vacated. The order of eviction was passed after following the procedure established by law. The plaintiff had not acquired right, title and interest over the suit land by way of adverse possession. 4. Stemming on the pleadings of the parties, the learned trial court has framed as many as eight issues. To substantiate the case, the plaintiff had examined one witness. The defendants had not examined any witness. The plaintiff adduced the evidence, both oral and documentary. No evidence was adduced by the defendants. The learned trial court did not delve into any of the issues. It was decreed the suit. Assailing the judgment and decree of the learned trial court, the defendants filed T.A.No.6 of 1992 before the learned Additional Sub-Judge, Dhenkanal. The learned appellate court relying on the decision of this Court in the case of Narayana Chandra Yotish Vrs. State of Orissa and another, 73 (1992) CLT 860 held that the suit is not maintainable in view of the bar contained in Section 16 of the O.P.L.E. Act. The learned appellate court also did not answer all the issues and dismissed the appeal. 5. The appeal was admitted on the following substantial question of law: “1. Whether the learned appellate court has erred in law in holding that the suit is not maintainable under Section 16 of the Prevention lf Land Encroachment Act ? 2. Whether the judgment of the appellate court is vitiated for not answering all the issues ?” 6. Heard Mr.Mohanty, learned Advocate for the appellant and Mr.Panda, learned A.G.A.. 7. Whether the learned appellate court has erred in law in holding that the suit is not maintainable under Section 16 of the Prevention lf Land Encroachment Act ? 2. Whether the judgment of the appellate court is vitiated for not answering all the issues ?” 6. Heard Mr.Mohanty, learned Advocate for the appellant and Mr.Panda, learned A.G.A.. 7. Mr.Mohanty learned Advocate the appellant submits that in spite of bar contained in Section 16 of the O.P.L.E.Act, the Civil Court has jurisdiction to decide the title of the plaintiff. He further contends that as many as eight issues have been framed, but the learned trial court did not bother to answer any of the issues. Though the learned appellate court took note of the same, instead of remitting the matter back, it held that the suit is not maintainable. 8. Per contra, Mr.Panda, learned A.G.A. submits that the learned appellate court decided the appeal relying on the decision of this Court in the case of Narayana Chandra Yotish (supra), which was holding the field. He further contends that the plaintiff was a rank trespasser. Proceeding under the O.P.L.E. Act was initiated against him. Order of eviction was passed. Son of the plaintiff gave in writing that the suit land had been vacated. There is no perversity or illegality in the findings of the learned appellate court. 9. In Abhimanyu Jee Vrs. Dr.Gayaprasad and others, AIR 1982 Ori. 207 , this Court held that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendants operated as res judicate and the finding was not available to be re-adjudicated in the civil court. But then, in the case of Life Insurance Corporation of India Vrs. M/s.India Automobiles and Co. and others, AIR 1991 SC 884 , the apex Court observed that the decision rendered by Court of limited jurisdiction, that is to say, the rent control court will not operate as res judicate in the subsequent suit relating to title notwithstanding the terms of Sec.11 of the C.P.C. including Expl.VIII thereto. Taking a cue from Life Insurance Corporation of India (supra), this Court in the case of State of Orissa Vrs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 Ori. 199 held that the decision in the case of Abhimanyu Jee (supra) must be taken to have impliedly overruled. Taking a cue from Life Insurance Corporation of India (supra), this Court in the case of State of Orissa Vrs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 Ori. 199 held that the decision in the case of Abhimanyu Jee (supra) must be taken to have impliedly overruled. In Bhanu Mali (Dead) Nurpa Bewa (supra), a question arose that whether the decision of the Revenue Officer in the proceeding under the O.P.L.E.Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the O.P.L.E. Act can neither operate as res judicate nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. It was further held that since the learned Single Judge in Narayana Chandra Yotish (supra) did not take note of the earlier two Bench decisions of this Court arising under the O.P.L.E. Act as well as the decisions of the apex Court rendered under an Act containing pari materia provisions, the said decision must be taken to have been wrongly decided. 10. In view of the authoritative pronouncement of the apex Court in the case of Bhanu Mali (Dead) Nrupa Bewa (supra), the irresistible conclusion is that the suit is maintainable. 11. The apex Court in the case of Santosh Hazari Vrs. Purushottam Tiwari (Dead) by Lrs., A.I.R. 2001 SC 965 reminded the duty of the first appellate court while deciding the appeal under Section 109 C.P.C. The apex Court held : “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 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 Vs. Bijendra Narain Choudhary, 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. 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 fact (See Madhusudan Das Vs. Smt. Narayani Bai, AIR 1983 SC 114 ). 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 fact (See Madhusudan Das Vs. 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 credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where 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 Vs. 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. xxx xxx xxx” 12. The learned trial court framed as many as eight issues. Cursorily instead of answering the issues, it proceeded to decide the suit on merit. The approach of the learned trial court is not in consonance with the law. The appellate court having not decided all issues the judgment is vitiated on this score also. 13. In the wake of the aforesaid, the impugned judgments are set aside. The matter is remitted back to the learned trial court for de novo hearing. Since the parties have adduced evidence, the learned trial court shall decide all issues and dispose of the suit by end of December, 2017. Registry is directed to transmit the record to the learned trial court.