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2017 DIGILAW 876 (ORI)

Lokanath Behera v. SCAW Industries Pvt. Ltd

2017-08-11

D.DASH

body2017
JUDGMENT The unsuccessful plaintiff through his power of attorney who is his son has filed this appeal challenging the judgment and decree passed by the learned Civil Judge (Senior Division) Dhenkanal in Civil Suit No. 258 of 2007 dismissing his suit. The plaintiff through his son holding his power of attorney had filed the suit for declaration of his right, title and interest over the suit land, for confirmation of possession and issuance of permanent injunction with confirmation of his possession over the suit land. The suit has been dismissed by judgment and decree dated 30.04.2011 and 16.05.2011 respectively. It may be stated at the cost of the repeatation here that the son of the plaintiff holding plaintiff’s power of attorney in prosecuting the suit in the trial Court had tendered the evidence on behalf of the plaintiff by examining himself as one of the witness for the plaintiff and he is now also prosecuting this appeal. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. Plaintiff’s case is that he is the owner in physical possession of the land admeasuring Ac. 4.600 decimals correspondent to Hal Plot No. 1588/2901 under Hal Khata No. 249 of mouza Gundichapada in the district of Dhenkanal. It is stated that after due consideration and verification of the right, title, interest and possession of the plaintiff during the current settlement operation, finally the Record of Right has been published in respect of the suit land wherein the name of the plaintiff is reflected as the recorded tenant and the plaintiff has been paying rent. It is stated that the Hal Plot No. 1588/2901 corresponds to the land under Sabik Plot No. 612/1643 under Sabik Khata No. 4 of that village which was the bifurcated plot from the original Sabik Plot No. 612 which had been settled by the erstwhile owner –State in favour of the plaintiff and the title thereto having thus vested with the plaintiff, he stands as its owner. It is his further claim that he has been in physical possession of the said suit land and is in enjoyment of the same all along till date. It is further stated that the Sabik Plot No. 612/1643 measuring Ac. It is his further claim that he has been in physical possession of the said suit land and is in enjoyment of the same all along till date. It is further stated that the Sabik Plot No. 612/1643 measuring Ac. 04.80 decimals of area has been reduced by Ac 0.20 decimals as per the Hal Settlement record which he accepts as it stands. It is the further case of the plaintiff that the defendant no.1 which is a private limited company through its employee defendant no. 2 while establishing a factory on the land adjacent to the suit land had from the beginning an eye over the suit land with an intention to grab it and all of a sudden, on a fine morning, they tried to construct some shed over the suit land. It was somehow stopped by stiff resistance from the plaintiff and when after some time move was again found to be renewed, the plaintiff has been compelled to file the suit. 4. The defendant nos. 1 and 2 in their written statement refuted the correctness of the description of the suit land with the assignment of the plot number. They have denied the plaintiff’s claim of title and physical possession over the suit land. It is further stated that there was no proper verification of records and map during the current settlement operation concerning the suit land. It is their case that the suit land has been acquired by the State with the adjoining land for the public purpose mainly for infrastructure development to be made by the IPICOL and after acquisition, the IDCO which came to be created with certain specific activity to be carried out being bifurcated from those of the IPICOL, was leased out with the said land and the possession of the same was delivered. There was payment of compensation and in so far as the suit land is concerned, the plaintiff has received the compensation of Rs. 27,600/- on 04.06.1981. So it is stated that the plaintiff has no right, title, interest and possession over the suit land and recording of the land is without taking the said acquisition into consideration because of some negligence on the part of the employees of IDCO at the required point of time. 27,600/- on 04.06.1981. So it is stated that the plaintiff has no right, title, interest and possession over the suit land and recording of the land is without taking the said acquisition into consideration because of some negligence on the part of the employees of IDCO at the required point of time. It is further stated that for the same, the Revenue Divisional Commissioner, Sambalpur in exercising the power of the Commissioner Settlement was moved by the IDCO for correction of the said Record of Right and therein the Tahasildar (Sadar), Dhenkanal was directed to verify the records and do the needful. It is stated that finally the Tahasildar in Revenue Misc. Case No.11 of 2007 after making detail enquiry has come to the conclusion that the suit land has been acquired and for that compensation has been paid to the plaintiff. The order of the Tahasildar, according to them, has been passed after due enquiry and collection of the report from proper quarter which depicts the picture very clearly. 5. The defendant no.3 also denied the claim of the plaintiff in respect of the suit land. According to them, the Hal Plot No. 1588/2901 under Hal Khata No. 249 corresponding to Sabik Plot No.1/612/1643 under Sabik Khata No. 4 measuring Ac. 4.80 decimals has been duly acquired by the Government for the public purpose for infrastructure development by the then IPICOL, the predecessor of IDCO in the year 1980 by following the due process of law. Accordingly, an ;agreement between the Collector and the IDCO has been executed and registered on the 5th day of July, 1982 by transferring the ownership of Ac. 41.63 decimals of the acquired land to the IDCO for establishment of industries which very much includes the suit land. It is stated that the plaintiff has received due compensation for the suit land which had been acquired. It is further stated that the Record of Right however for some negligence or other could not be set at right and therefore the recording stood in the name of the plaintiff which cannot be taken to have created title of the suit land in favour of the plaintiff since the property has vested with State after the completion of acquisition on payment of due compensation. Thus according to them, the plaintiff has not got the ownership over the property in view of the acquisition of the suit land following due process of law. This recording of the suit land in the name of the plaintiff cannot create the title in his favour and give rise to any such entitlement thereof. Move being made before the Revenue Divisional Commissioner, for correction of the Record of Right everything has been settled by rectification of the mistake. It has been said that the matter has been properly enquired into and finally the order has been passed by the Tahasildar which has been to the effect that the suit land does no more belong to the plaintiff. They denied the factum of possession of the suit land by the plaintiff and also other averments relating threat to said possession etc. as alleged in the plaint. They claim possession of the suit land unto themselves. It is stated that the Tahasildar’s order at the end is pursuant to the order of the High Court in W.P.(C) No. 5452 of 2006 which had been filed by the plaintiff seeking for a direction to the Tahasildar to take necessary action pursuant to the order of the R.D.C., Sambalpur, then functioning as the Commissioner of Settlement. 6. On the aforesaid pleadings, the following issues have been framed:- (1) Is there any cause of action to file the suit? (2) Whether the suit is maintainable? (3) Whether the suit is barred by limitation? (4) Whether the plaintiff has right, title, interest and possession over the suit schedule land? (5) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? (6) To what other relief, the plaintiff is entitled? Parties have let in evidence both oral and documentary and the trial Court has very rightly gone to take up the issue no.4 for decision at first which concerns with the right, title, interest and possession over the suit land as claimed by the plaintiff and that is the main controversy to be set at rest, as it appears from the rival case. The other issue no.5 would be the recipient of the answer, consequential to the answer to said issue no.4. 7. The trial Court on analysis of evidence both oral and documentary in great detail and after weighment of their evidentiary value has answered issue no. The other issue no.5 would be the recipient of the answer, consequential to the answer to said issue no.4. 7. The trial Court on analysis of evidence both oral and documentary in great detail and after weighment of their evidentiary value has answered issue no. 4 against the plaintiff by holding that the suit land has been acquired by the State by paying compensation to the plaintiff (Lokanath). The answer to the other issue no. 5 has accordingly followed the suit that the plaintiff is not entitled for the reliefs claimed. Under issue no.2 the suit as laid as not maintainable for the reason that IDCO, the defendant no.2 having been so joined as a party to the suit without notice under Section 80 of the Code to the defendant no.3. It is further held that plaintiff has no cause of action. 8. At the outset, it is apposite to state that during pendency of the appeal, the plaintiff- appellant has filed an application under Order 41 Rule 27 of the Code of Civil Procedure for acceptance of additional evidence which has given rise to the registration of Misc. Case No. 83 of 2014. It is stated that during pendency of the suit, the plaintiff was suffering from neurological disorder and therefore these important documents in his custody could not be handed over to his son holding his power of attorney and prosecuting the lis. These documents are the ‘K’ Form issued by the State in favor of the plaintiff, the certified copy of the lease dated 22.06.1978 by which the State has leased out the land in the area to IPICOL, and some medical prescriptions in support of the plaintiff’s ill health condition. The move is seriously objected to by the defendants. It is stated that the litigation has not commenced right from the date of institution of the suit but its commencement relates to the interior date when the parties were before the R.D.C., Sambalpur in the settlement proceeding, before this Court in writ application filed by the plaintiff himself and not through the present power of attorney and thereafter before the Tahasildar which all concern with the recording of the suit land. Being dissatisfied with the final order of the Tahasildar which has not gone in favour of the plaintiff, the suit has been filed. Being dissatisfied with the final order of the Tahasildar which has not gone in favour of the plaintiff, the suit has been filed. Though these documents according to the plaintiff were so important, those were not produced and approved earlier and those have seen the light of the day only on in the year 2014 long after institution of appeal on 01.08.2011. Moreover, it is seen that the ‘K’ form contains so many corrections and interpolations raising doubt on the genuineness which at present cannot be ascertained. Therefore, it is extremely hazardous to accept the said ‘K’ form at this state in the evidence after lapse of time. It is also found that the plaintiff from the beginning in the suit has been contesting the matter through his power of attorney yet he himself was pursuing the litigation even by approaching this Court. the issuance of ‘K’ form etc. has not been stated in so many words in the plaint much less to say with necessary details though it has come out in the evidence. The suit has been allowed to be decided without those evidence and after lapse of seven years the move at this state is made for admission for those documents containing interpolations so as to enable the Court to make a comparison of the land settled with plaintiff and those leased out to IPCOL with reference to other records and accordingly to arrive at the finding. 9. Firstly, there lacks due diligence in the matter and the explanation is unsatisfactory secondly there appears grave suspicion over the genuineness and correctness of the entries especially in that ‘K’ form which cannot be taken into consideration as it is, more so when there remains no such explanation whatsoever to that effect. (So, the submission of the learned counsel for the appellants cannot be countenanced). All those documents, especially the ‘K’ Form being the foundation of the claim of the plaintiff has not been produced and proved before the trial Court nor before other authority prior to it and now the document containing good numbers of over writings and interpolations as are visible to the necked eye particularly relating to the lease case number which has been corrected as lease more importantly in respect of plot number, rent fixed and few other descriptions are sought to be introduced in evidence. The power of attorney holder who is an educated person can never be said to be unaware of existence of all these documents especially when he took charge of the said litigation from his father. So, at the highly belated stage, it would also be highly prejudicial to the defendant and there remains all the possibility on their part to be not in a position to properly counter those. The prayer appears to be not backed by bonafides. Furthermore, in view of the evidence on record, these documents with doubtful feature cannot be taken to be so necessary to enable this Court ;to arrive at a just and proper decision. In that view of the matter, I am inclined to reject the prayer of the plaintiff-appellant seeking permission to adduce the additional evidence. The Misc. Case No. 83 of 2014 is accordingly dismissed. 10. Learned counsel for the appellant on merit submits that the suit plot as indicated in the Record of Right, Ext. 1, the number of the plot is 1588/2901 and the plot Index, Ext. 9 shows that it correspondents to sabik plot No. 612/1643 under sabik khata No.4, whereas the notice under Sections 4(1) and 6(1) of the L.A. Act, 1894 which are Exts. 4 and 11; respectively find mention of Plot No. 1/1643 not Plot No. 612/1643 which makes the position clear that the suit land had not been acquired. So the trial Court ought not to have further embarked upon any enquiry in that regard by scrutinizing other evidence. On this basis, according to him the finding on the crucial issue is to be recorded in favour of the plaintiff. Referring to the agreement made between the State and the IDCO, Ext. F, he submits that the leased out land was not under Plot No. 612/1643 and that had not been acquired at all. Therefore, he submits that there was no impediment on the part of the trial Court in view of such evidence on record to decree the suit of the plaintiff and the trial Court was not at all right in again going to consider the plea of the defendants that the Plot No. 1/1643, 1/612/1643, 612/1643 and 1/162 are one and the same plot as has been erroneously reported by the Amin when the matter was pending before the Tahasildar and has been so erroneously found by the Tahasildar. He further submits that the evidence on record clearly go to show that the suit land which belonged to the plaintiff has not been acquired by the State and for that the plaintiff was not paid with the compensation. In so far as the payment of compensation is concerned, he contends that the compensation could not have been paid by cash and even if that is so, then there being no proof of the payment of money to the plaintiff by cheque or draft, as mandated under the Executive Circular, the receipt proved on that score i.e. Ext. D, ought not to have been accepted at all. He also contends that the signature of the plaintiff as is appearing therein is forged. He next contends that the trial Court has unnecessarily drawn adverse inference for non-examination of the plaintiff when in the facts and circumstances of the case and also the rival case of the parties, its of no fatal consequence to the merit of the plaintiff’s case. In this connection, he has relied upon the decision in case of Man Kaur vrs. Hartar Singh; 2010 (10) SCC 512 . 11. Learned counsel for the respondent nos. 1 and 2 submits that the finding of the trial Court on issue nos. 4 and 5 are unassailable and accordingly be visited with due affirmation. According to him, the trial Court has made elaborate discussion of the evidence relating to the identity of the suit land directing the examination as to whether it has been acquired by the State or not and after critical examination of those evidence, viewing other attending circumstances as have emanated from the evidence has given the finding. He further submits that, on over all analysis of evidence on record from every angle there is no escape from the conclusion which has been arrived at by the trial Court i.e. that the suit land had been acquired by the State upon payment of compensation to the plaintiff. He submits that the State has leased out the suit land to IDCO and possession is accordingly with them being so delivered with and now a case has been attempted to be made out again taking advantage of recording in the settlement R.O.R. that the possession of the suit land is with the plaintiff. He submits that the State has leased out the suit land to IDCO and possession is accordingly with them being so delivered with and now a case has been attempted to be made out again taking advantage of recording in the settlement R.O.R. that the possession of the suit land is with the plaintiff. He further submits that the claim of the plaintiff is a creation from nothing by merely taking advantage of the entry in the Record of Right by the Settlement Authorities due to the inaction/negligence on the part of the authority associated with the process of land acquisition and leasing out the same in not getting the acquired land properly recorded soon after the acquisition. He further submits that the trial Court has rightly drawn the adverse inference for non-examination of the plaintiff as he is the best witness to deny with reference to the identity; to deny the receipt of compensation under Ext. D and the signature on Ext. D is not of his own which are very much wanting. He thus contends that when admittedly the property is not the ancestral property but the property received from the State by way of lease and the plaintiff is the best witness to say about the continuance of the possession right from the time of his acquisition, non-taking of the same by the State and consequently non-delivery of IPICOL and the defendant no.1. According to him, the plaintiff himself again after the order of the Tahasildar which has been the result at his instance by an order of the High Court, cannot impeach the same in the suit. In view of all these, he urges for dismissal of the appeal as devoid of merit. 12. Learned counsel for the respondent no.3 and learned counsel for the State while adopting the submission of the learned counsel for the respondent nos. 1 and 2 further contend that the conduct of the plaintiff that he has approached the Court of law with dirty hands is clearly seen from the evidence upon proper appreciation and that is the reason that he has avoided to come to the witness box from being confronted with any such situation of falling into his own laid trap. He also contends that the examination of the son of the plaintiff cannot be taken to stand wholly as the substitute of the plaintiff himself. 13. He also contends that the examination of the son of the plaintiff cannot be taken to stand wholly as the substitute of the plaintiff himself. 13. From the above rival submissions, it appears that the very principal controversy rests as to whether the suit land had been acquired by the State upon payment of compensation, on that account to the plaintiff. 14. Admittedly, quite sizable extent of land was leased out by the State to the plaintiff as an Ex-Service man in Lease Case No. 06 of 1971 proceeded by the order of the settlement dated 31.10.1972 and followed by the issuance of the record of right. The ‘K’ form said to have been issued has not been proved in the case and the move to adduce the same as additional evidence in the appeal at such highly belated stage having good number of corrections and interpolations touching material aspects has already been rejected. The State Government has gone to acquire Ac. 41.63 decimals of land comprising of 27 plots by issuance of notification under Section 4 (1) of the L.A. Act on 19.01.1980 under Ext. 21. There is no dispute that the said acquired land has been handed over to the defendant no.3 for industrial infrastructure development followed by execution of leave agreement, Ext. F and then from the leased out land, Ac. 55.00 decimals of land has been handed over to the defendant nos. 1 and 2 under the agreement dated 17.03.2004 vide Ext. G. The plaintiff taking a cue from the notifications issued for the purpose of acquisition vide Exts. 20 and 21 vehemently contends that the Sabik Plot No. 612/1643 does not find mention therein and therefore the suit land does not come within the acquired land. In this connection the plot index is projected as to have been further providing the strength. The defendants though admit that Sabik Plot No. 1/1643 finds mention in Exts. 20 and 21, they assertively state that the Plot Nos. 612/1643 and 1/612//1643 having been carved out of the original Sabik Plot No. 1, the acquisition cannot be said to have not been in respect of the suit land. 15. It is worthwhile to point out here even at the cost of repeatation that there was a move by the IDCO before the R.D.C. exercising the power of Settlement Commissioner for correction of this very Record of Right. 15. It is worthwhile to point out here even at the cost of repeatation that there was a move by the IDCO before the R.D.C. exercising the power of Settlement Commissioner for correction of this very Record of Right. There was direction to the Tahasildar for necessary verification of the records for doing the needful in the matter. This plaintiff himself had carried the said order of the R.D.C. before this Court by filing a writ application. This Court then directed the Tahasildar to do the needful as directed by the R.D.C. Fact remains that it had then not been placed before this Court ;that the R.D.C. has no jurisdiction in the matter and therefore the Tahasildar has no authority to look into it as directed and thus the verification at the level of the Tahasildar as well as the enquiry report are nonest which is now contended with force. In this situation, in the eye of law, it has to be deemed that such objection as is raised now had been so raised in the writ and that has been so decided against the plaintiff. Thus in my considered view, the plaintiff is stopped to further challenge the order of the Tahasildar in the present suit as submitted on the ground of lack of jurisdiction to do so. By the order of the Tahasildar, the record of right has been finally corrected in Mutation Case No. 3790 of 2004. The plaintiff had very much participated in the said proceeding before the Tahasildar who was discharging said duty being so as directed by this Court in W.P.(C) No. 5452 of 2007. It may be stated that before the RDC., the prayer for correction of record of right being made the following stood as the contentions of Tahasildar being culled out from the records after primary verification:- “xx xx xx” The learned Tahasildar, Dhenkanal has rightly submitted that the IDCO authorities have taken lands in village Gundichapada Industrial Estate which is a part of total Ac. 459.10 for the Industrial purpose through registered lease agreement executed by the Collector, on behalf of Governor of Orissa and Managing Director, IPICOL, in the year 1978. After execution of lease deed, the same was sent to the Tahasildar Office, Dhenkanal for correction of ROR in the year 1978. 459.10 for the Industrial purpose through registered lease agreement executed by the Collector, on behalf of Governor of Orissa and Managing Director, IPICOL, in the year 1978. After execution of lease deed, the same was sent to the Tahasildar Office, Dhenkanal for correction of ROR in the year 1978. But due to inaction by the then Tahasildar the RORs have not been corrected in favour of IDCO as yet. As a result of which settlement authorities without following due procedures have published the ROR inadvertently for those lands keeping in different Govt. Khata under different categories like Abadayogya Anabadi, Rakhita etc. The schedule land was acquired by the IDCO has granted for Ac. 75.00 in the year 2003 to one M/s. SCAW Industries and handed over the possession after realizing the prescribed premium from the said industry. On the strength of said delivery of possession, M/s. SCAW Industry started the construction work which has completed almost 75% of the construction without any obstruction from any quarters. The Tahasildar, Dhenkanal has fairly submitted that on verification of Revenue ROR it is found that out of delivered land of Ac. 75.00 to SCAW Industries, the settlement authorities have recorded Ac. 10.53 in the name of private individuals Ac. 33.54 under Revenue Jungle Kisam and Ac. 30.93 under different Govt. khata. Because of the non-production of the lease deed before the settlement authority in the appropriate juncture, such wrong recording have appeared. At this stage if such wrong recording is not corrected, the State shall stand to loose heavily, who desires to establish on the said land in the larger interest of the State and prosperity of the area. The Tahasildar, Dhenkanal has further urged that the settlement authority have wrongly extinct right, title and interest of IDCO authorities even if they had valid registered lease agreement. As per the Hon’ble High Court’s rulling, the settlement authorities have no right to establish or extinct any right, title and interest. Hence due to wrong recording, the Govt. may loose establishment of Industries in the Industrial Estate, Gundichapada in absence of proper correction of wrong recording of the above suit. xx xx xx For the reasons stated in the foregoing paragraphs it is admitted that the settlement authority without proper notice to the petitioner and without verifying the relevant officials records from the Tahasil Office, Dhenkanal, have wrongly recorded Ac. 459.10 dec. xx xx xx For the reasons stated in the foregoing paragraphs it is admitted that the settlement authority without proper notice to the petitioner and without verifying the relevant officials records from the Tahasil Office, Dhenkanal, have wrongly recorded Ac. 459.10 dec. of land in favour of different O.Ps no. 3 to 201 depriving the bonafide record of right in favour of IDCO which is the lawful owner. The law of the land is well settled that the settlement authorities could not create any new right in any circumstances.” The conclusion of the R.D.C. is as under:- “It reveals that the schedule plot in 4(1) notification was mentioned as 1/643 which as per the amin report correspond to Sabik plot 1/612/1643 and that plot no. 1/1643 and 612/1643 are one and the same plot 1/612 was carved out of original Sabik plot No.1. The copy of award Register submitted by the land acquisition officer that Sri Lokanath Behera has received the compensation amount land given his signature in token of his receipt. Therefore the above contentions of the opposite party is not maintainable and rejected.” 16. The report of the Amin discloses that the said Plot No. 1/1643 as finds mention in the notification under Section 4(1) of the L.A. Act, 1894 corresponds to sabik plot no.1/612/1643 and plot no. 1/1643 and 612/1643 are one and the same and that plot no. 1/612 was carved out of original sabik plot no. 1. The plaintiff is relying upon the supplied information, Ext. 9 obtained under the Right to Information Act from the settlement office that Record of Right containing the Sabik Plot Nos. 1 and 612 being in torn condition, the report to the above effect is not acceptable. This was never raised before the Tahasildar so as to afford an opportunity to the Tahasildar to make verification of the record condition and to accordingly report closing his hands. That be such an important plea, non-advancement of the same at least before the Tahasildar at the end certainly casts doubt and it cannot be so presumed at a later point of time by relying on the supplied information Ext. 9, that the report of the Amin as called for by the Tahasildar which has been relied upon by the Tahasildar is merely the outcome of homework with a bid to foil the claim of the plaintiff. 9, that the report of the Amin as called for by the Tahasildar which has been relied upon by the Tahasildar is merely the outcome of homework with a bid to foil the claim of the plaintiff. The information obtained in the year 2008 after Tahasildar’s order for correction of record of right carries no weight and cannot be so relied upon so as to ignore the Tahasildar’s order after detail exercise. Furthermore, the informations as sought for are not specific for the case but by it information of all fraction plots of sabik plot no.1 and sabik plot no. 612 have been sought for. It is not in dispute that the State acquired vast tract of land in compact block in mouza Gundichapada and has leased out for carrying out the Industrial activity. It is there in the evidence that the defendant no.1 has the compound wall all around and this suit land is not claimed to be outside the enclosed area in possession of the defendant no.1. That being so, the evidence of the plaintiff that he was in cultivating possession of the suit land is highly improbable and thus cannot be accepted. When it is specifically stated by the plaintiff that he was never paid with the compensation in respect of the suit land as described in the settlement record of right standing in his name, it is nowhere stated that he did not own the land under Plot No. 1/1643 and had never possessed it and that no compensation for that plot of acquired land was paid to him. This raises the eye brows on the veracity on the substratum of the case of the plaintiff and that apart the plaintiff had made his hands more dirtier, nowhere even whispering that said plot of land as per the map is situated at a different place. 17. The plaintiff has come forward to seek the relief of declaration of right, title, interest and possession over the suit land. So he is either to stand or fall on his own and cannot take advantage of the failure or weakness of the defence. So the result of the suit is dependent upon the establishment of the factum of ownership and possession of the suit land by the plaintiff that he has to show leading evidence for being acceptable by preponderance of probability. So the result of the suit is dependent upon the establishment of the factum of ownership and possession of the suit land by the plaintiff that he has to show leading evidence for being acceptable by preponderance of probability. In view of that specific defence that the said land had been acquired by the State when the plaintiff relies on the settlement R.O.R. which by the time of institution of the suit had been corrected, the plaintiff was under legal obligation to prove the land under Sabik Plot No. 1/1643 as finds mention under Exts. 20 and 21 is distinct not only in the record of right but also in the field that is the position. The order of the Tahasildar which has been marked as Ext. H without any objection is very clear with detail narration of the position of the Sabik as well as the Hal record and comparison from every angle. The conclusion is as follows: “It reveals that the schedule plot in 4(1) notification was mention was mentioned as 1/1643 which as per the amin report correspond to Sabik Plot 1/612/1643 and that plot no. 1/1643 and 612/1643 are one and the same plot 1/612 was carved out of original Sabik Plot NO. 1. The copy of award Register submitted by the land acquisition officer that Sri Lokanath Behera has received the compensation amount and given his signature in token of his receipt. Therefore, the above contention of the opposite party is not maintainable and rejected.” In so far as the payment of compensation is concerned, the trial Court appears to have again discussed the evidence on record thoroughly. Here one thing strikes to my mind that when the matter was being pursued for correction of the Record of Right by the IPICOL, the plaintiff was pursuing the litigation himself and the power of attorney was not in the picture, the plaintiff himself filed the writ before this Court. so the conduct of the plaintiff at the earliest point of time in withholding the ‘K’ form for verification, on the face of challenge on the ground that he was paid with the compensation for acquisition of his said plot of leased land and now coming up to adduce that ‘K’ form as additional evidence stand to be viewed adversely against his case. All these lead to conclude that the plaintiff has failed to establish his claim of right, title and interest over the suit land as described in the plaint. Mere denial of receipt of the compensation by the power of attorney holder would not be enough for acceptance as such when the plaintiff does not even come forward to say so. The evidence of his son, the power of attorney holder on the face of Ext. D cannot be accepted. Non-examination of the plaintiff in the present case and in my view is fatal, the reason being that it is he, who is the best witness to speak the fact that this plot of land as described in the plaint which forms the subject matter is distinct and different from the land under plot no. 1/1643 and as regards his possession of those lands and that he has not received the compensation for acquisition of land under plot no. 1/1643, also the fact that under Ext. D, the compensation was not paid to him and the signature therein is not his. Even if it is said that there has been some irregularity in the mode of the payment without following the executive instructions, the documentary evidence coming from official custody and that too maintained in course of discharge of statutory duty showing said payment to the plaintiff cannot be thrown to the dust bin thereby indirectly saying that Ext. D was not signed by the plaintiff which he himself does neither come to deny nor show by leading expert evidence after getting it compared by making a prayer before the Court. The ratio of the Apex Court in case of Man Kaur (supra) does not come to the aid of the plaintiff in the facts and circumstances of the case and as per the discussion. 18. For the aforesaid discussion and reasons, this Court accords its agreement with the finding of the trial Court on issue nos. 4 and 5. Other finding on the technical issue standing against the plaintiff even if set at naught, it would not make any difference in view of the affirmation of finding on factual issue no.4. The finding on issue nos. 4 and 5 having thus received the seal of approval, the fate of this appeal gets sealed and it thus fails. 19. Resultantly, the appeal stands dismissed with cost. Appeal dismissed.