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2018 DIGILAW 196 (ORI)

Anusuya Patra v. O. S. E. B. , Bhubaneswar

2018-02-19

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a reversing judgment in a suit for mandatory injunction. 02. The case of the plaintiff was that her mother, Ulli Sahuani, purchased a piece of land by means of a registered sale deed dated 2.7.1957. She was in possession of the same. After her death, the plaintiff constructed a boundary wall leaving 15 feet space for compound on the western side of the vacant side. An electric transformer had been installed by the defendant no.2 in the space left for the compound without her permission. In the proposed building of the plaintiff, the transformer would be by the side of the building, which will be less than a foot or two to the building. She requested the defendants to shift the transformer. All persuasions ended in a fiasco. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra. 03. The defendants filed written statement. It was pleaded that the purchaser was in possession of the suit land. The plaintiff had not left 15 feet space for the compound. The plaintiff had no right over the suit land. The transformer was not installed on any space left by the plaintiff for compound wall. The transformer had been installed on a vacant unoccupied land for the interest of public without any objection from anybody. The plaintiff had no manner of right, title and interest over the suit land. It was further pleaded that they had fixed transformers as per the Indian Telegraphs Act, 1885. The plaintiff’s predecessor had not made any complain before them. The plaintiff had started construction without permission from the Development Authority. Shifting of transformer requires heavy expenses. Person requesting to shift the transformer has to deposit the advance shifting charges. The plaintiff had not deposited the amount. 04. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that plaintiff is the owner of the suit plot. The transformer had been installed in her land. The defendants had no authority to install the transformer on the land of the plaintiff. Held so, it decreed the suit. Feeling aggrieved, the defendants filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 1st A.D.J., Berhampur and renumbered as T.A. No.4/92. The transformer had been installed in her land. The defendants had no authority to install the transformer on the land of the plaintiff. Held so, it decreed the suit. Feeling aggrieved, the defendants filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 1st A.D.J., Berhampur and renumbered as T.A. No.4/92. Learned lower appellate court came to hold that taking some plea or other and on imagination of facts, the court below held that the land belonged to the plaintiff. Ext.2, the sale deed is not enough to hold the possession of the land or the plaintiff over which, the transformer has been installed. The defendants installed the transformer at a distance of 1 and 1½ feet away from the foundation wall. It came to a conclusion that the person in actual possession is only entitled to the relief of mandatory injunction. Plaintiff had claimed her right over the suit land, but not recovery of possession. There is no evidence that the plaintiff is the owner of the piece of land over which the defendants installed the transformer. She is not willing to deposit necessary costs for shifting of the transformer. Held so, it allowed the appeal. 05. The second appeal was admitted on the following substantial question of law. “Whether the court below erred in law in misconstruing the evidence on record ?” 06. Heard Mr. Ajit Kumar Choudhury, learned counsel for the appellant and Mr. Bhaskar Chandra Panda, learned counsel for the respondents. 07. Mr. Choudhury, learned counsel for the appellant, argued with vehemence that the defendants installed the transformer on the land of the plaintiff. The plaintiff has been dispossessed without following the procedure prescribed by law. Right to property is a constitutional as well as human right. Learned trial court on an analysis of the evidence on record and pleading held that the defendants had installed the transformer on the land of the plaintiff, but then learned lower appellate court upset the same on unsupportable and untenable ground. The finding of the learned lower appellate court that there is no material on record that the defendants had installed the transformer over the land of the plaintiff is perverse. He relied on the decision of the apex Court in the case of Chairman, Indore Vikas Pradhikaran vs. M/s. Pure Industrial Cock and Chem. The finding of the learned lower appellate court that there is no material on record that the defendants had installed the transformer over the land of the plaintiff is perverse. He relied on the decision of the apex Court in the case of Chairman, Indore Vikas Pradhikaran vs. M/s. Pure Industrial Cock and Chem. Ltd. and others, 2007 AIR SCW 4387. 08. Per contra, Mr. Panda, learned counsel for the respondents, submitted that plaintiff was not examined as a witness. Her husband, power of attorney holder, was examined as a witness. The power of attorney holder cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Plaintiff had never raised any objection to the installation of the transformer. She remained silent. She is not entitled to the relief of mandatory injunction. He further submitted that the plaintiff had not filed any application for deputing a survey knowing commissioner to ascertain whether the transformer has been installed on the land or not. A survey knowing commissioner may be appointed to ascertain the truth. 09. Before proceeding further, it is apt to refer the decision cited at the Bar. In Chairman, Indore Vikas Pradhikaran (supra), the apex Court held that the right to property is now considered to be not only a constitutional right but also a human right. It further held that property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law. There is no quarrel over the proposition of law. 10. Learned trial court held that plaintiff is the owner of the suit plot and the transformer had been installed on her land. Learned lower appellate court negatived the finding holding, inter alia, that the defendants installed the transformer at a distance of 1 and 1½ feet away from the foundation wall. It further held that there is no evidence that plaintiff is the owner of the land over which the transformer had been installed. Counsel for both the parties are in consensus ad idem that a survey knowing commissioner be appointed. 11. In view of the same, the impugned judgment is set aside. It further held that there is no evidence that plaintiff is the owner of the land over which the transformer had been installed. Counsel for both the parties are in consensus ad idem that a survey knowing commissioner be appointed. 11. In view of the same, the impugned judgment is set aside. The matter is remitted back to the learned District Judge, Berhampur. Learned District Judge, Berhampur shall appoint a survey knowing commissioner for measurement of the land and dispose of the appeal. Since the matter is remitted back to the learned appellate court, this Court refrains from answering the substantial questions of law.