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2018 DIGILAW 174 (ORI)

Ram Chandra Das v. Trilochan Sahu

2018-02-12

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This appeal is by the plaintiffs. The suit was for recovery of possession and permanent injunction. 2. The case of the plaintiff was that Sashimani Dasi, the maternal grandmother of her father, was the original owner of the suit plot. After death of Sashimani Dasi, her father succeeded to the property. Her father was in possession of the suit plot. He executed a gift deed on 9.4.1957 in favour of the plaintiff. The suit plot no.156 is adjacent to plot nos.157 and 158, which belong to the defendants. The defendants had their residential house over plot nos.157 and 158. Defendant no.1 demolished the said house, shifted to Sadanandapur and stayed there. On 24.2.1978 defendant no.1 came back to his native place and constructed a new house over plot nos.157 and 158 by encroaching upon 2120 sqr. link out of suit plot no.156. The plaintiff could know about the encroachment made by the defendants during consolidation operation when defendant no.1 claimed title over plot no.156. With this factual scenario, she instituted the suit seeking the relief mentioned supra. It is apt to state here that initially the plaintiffs filed the suit for declaration of title, recovery of possession and permanent injunction. During pendency of the appeal, they filed an application to delete the prayer for declaration of title. The said application was allowed. 3. The defendants filed written statement denying the assertions made in the plaint. They denied the acquisition of land from her father through gift deed. They had not encroached upon the suit land. They reside in their old residential house since the time of their forefathers. They have perfected right over the suit plot by way of adverse possession to the extent of the portion encroached upon by them. 4. Stemming on the pleadings of the parties, the learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that the plaintiffs failed to establish that the area under the suit plot had been encroached by the defendants. The defendants’ plea of adverse possession of a portion of the suit plot over which the residential house situates is reasonable. Held so, it dismissed the suit. The learned trial court came to hold that the plaintiffs failed to establish that the area under the suit plot had been encroached by the defendants. The defendants’ plea of adverse possession of a portion of the suit plot over which the residential house situates is reasonable. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the same before the learned District Judge, Balasore., which was subsequently transferred to the court of the learned A.D.J., Balasore and renumbered as M.A.No.46/75 of 1983/82-I. The appeal was eventually dismissed. During pendency of the suit, the original plaintiff died, whereafter her legal heirs had been substituted. 5. The Second Appeal was admitted on the following substantial questions of law. “(1) Whether in view of the admission in the pleading, as well as evidence, made by one of the respondents (one of the defendants) the learned courts below were justified in recording that the respondents had acquired title in respect of the suit land by adverse possession ? (2) Whether the orders passed by the consolidation authorities including the order in Consolidation Appeal No.91 of 1979 will have any binding effect with regard to the disputed land which is a piece of homestead land ?” 6. Heard Mr.Alok Kumar Mohanty, learned Advocate on behalf of Mr.P.Kar, learned Senior Advocate for the appellants. None appeared for the respondents. 7. Mr.Mohanty, learned Advocate for the appellants submitted that the learned courts below had acted illegally and with material irregularity in observing that the jurisdiction of Civil Court is barred in view of the position that the suit was for eviction of the defendants. The findings of the courts below that construction of new house on a portion of plot no.156 and the defendant’s right to the same has been perfected by prescription are contrary to the materials on record are perverse. The defendants admit that they have no claim over the suit plot. The ‘Kha’ schedule land has been described as khata no.51, plot no.156, A0.14. The area of plot no.156 being not disputed, the plaintiff sought relief for recovery of possession in respect of ‘Ka’ schedule property i.e., 2120 sq. links out of A0.14 dec., which is more than Ac.0.02 dec. 8. The learned appellate court came to hold that the plaintiffs could not establish that the defendants had encroached upon a portion of the suit land and constructed a house thereon. links out of A0.14 dec., which is more than Ac.0.02 dec. 8. The learned appellate court came to hold that the plaintiffs could not establish that the defendants had encroached upon a portion of the suit land and constructed a house thereon. The parties admit that the subject matter of dispute was before the Assistant Consolidation Officer in Objection Case No.736 of 1978. In the said case, Sadarmani Das was the objector. She prayed, inter alia, for correction of area from A0-12 dec. as per her title. Amin was directed to conduct field enquiry and submit report. After field enquiry, he reported that the area of hal plot no.201 is A0-12 dec.. Placing reliance on Amin’s report, the Assistant Consolidation Officer rejected the claim of the objector. The order passed by the Assistant Consolidation Officer in Objection Case No.736 of 1978 has attained finality. There is no perversity or illegality in the findings of the courts below. In view of the same, the plaintiffs’ suit for recovery of possession and permanent injunction is misconceived. The substantial questions of law are answered accordingly. 9. In ultimate analysis, the appeal fails and is dismissed. There shall be no order as to costs.