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2018 DIGILAW 233 (ORI)

Muralidhar Nayak v. Jayahari Mahanta

2018-03-09

A.K.RATH

body2018
JUDGMENT : Dr. A.K. Rath, J. This is a plaintiff’s appeal against confirming judgment in a suit for declaration of right, title and interest, confirmation of possession, recovery of possession, in case the plaintiff is dispossessed during pendency of the suit and permanent injunction. 2. The dispute pertains to an area of Ac.0.25 dec. agricultural land appertaining to Sabik Khata No.3, Sabik Plot No.417/1, which corresponds to Hal Khata No.49, Hal Plot No.313 and homestead appertains to Sabik Plot No.666/732 which corresponds to Hal Plot No.38, Ac.0.18 dec. and Hal Plot No.38/1218 Ac.0.18 dec. appertaining to Hal Khata No.166 of Mouza-Sankarpur. Case of the plaintiff is that his father Ananda Naik got the suit land in Nayabadi Case No.246 of 1926-27 and 237 of 1929-30. His father was in possession of the same. After his death, the plaintiff is in possession of the suit land. He used to pay rent. Taking advantage of his absence, defendant no.4 and defendant no.5 constructed a house over plot no.732 over an area of Ac.0.02 dec. After demarcation they tried to occupy the remaining portion of the land covered under the said plot. It is further stated that defendants forcibly possessed the land covered under Plot No.417/1. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendant nos.1 to 3 filed a written statement denying the assertions made in the plaint. According to them, their grandfather Laxman Mohanta got the agricultural land under Sabik Plot No.417. Laxman Mohanta was in possession of the same. After his death, his son and grand sons are in possession of the same. In the Hal ROR, the names of defendant nos.1 to 3 have been recorded. The above plot corresponds to Hal Plot No.313, Hal Khata No.49 area Ac.0.25 dec. They are paying rent. The plaintiff is an Amin in Tahasil Office. He tried to grab the land covered under the above plot. The plaintiff filed Mutation Case No.636 of 1984 before the Tahasildar, Keonjhar to mutate his name in respect of the suit plot no.313, but the same was rejected. The Hal ROR has been issued in their favour and others. Some of the co-sharers having not been impleaded, the suit is not maintainable. 4. The plaintiff filed Mutation Case No.636 of 1984 before the Tahasildar, Keonjhar to mutate his name in respect of the suit plot no.313, but the same was rejected. The Hal ROR has been issued in their favour and others. Some of the co-sharers having not been impleaded, the suit is not maintainable. 4. Defendants 4 and 5 have also filed a written statement pleading, inter alia, that they are in possession of Plot No.38/1218 appertaining to Khata No.166 for the last 40 years. The land has been recorded in their name in Hal ROR. Since they are in possession of the suit land continuously, uninterruptedly and to the knowledge of the true owner, they have perfected title by way of adverse possession. 5. On the inter se pleadings of the parties, learned trial court has framed ten issues. The parties led evidence, both oral and documentary. The suit was dismissed. Plaintiff challenged the judgment and decree before the learned District Judge, Keonjhar, which was transferred to the court of the learned Civil Judge (Senior Division), Keonjhar and renumbered as Title Appeal No.7/33/92/93. Learned appellate court came to hold that without identification it cannot be stated that Sabik Plot No.417 corresponds to Hal Plot No.313. Held so, it remitted the matter back to the learned trial court to render a finding that (1) what is the corresponding Hal Plot of Sabik Plot No.417/1 (ii) total area of Sabik Plot No.417, (iii) whether any portion of Sabik Plot No.417 or 417/1 has been merged in the river and the extent thereof. After remand, learned trial court deputed an Amin Commissioner. The Commissioner submitted the report. The same was not accepted. Another commissioner was deputed. The commissioner submitted the report stating that it was not possible on his part to measure the land with certified copy of the map. Thereafter, learned trial court transmitted the record to the appellate court. The learned appellate court came to hold that the plaintiff has failed to prove title over the suit land. The defendants have perfected title over the suit land by way of adverse possession. Held so, it dismissed the appeal. 6. Thereafter, learned trial court transmitted the record to the appellate court. The learned appellate court came to hold that the plaintiff has failed to prove title over the suit land. The defendants have perfected title over the suit land by way of adverse possession. Held so, it dismissed the appeal. 6. The second appeal was admitted on the following substantial question of law; “Whether the findings recorded by the courts below on issue nos.4 and 5 (framed by the trial court) is on the basis of a perversal approach to the evidence on record.” 7. Heard Mr. D.P. Mohanty learned counsel for the appellant and Mr. Ramakanta Mohanty, learned Senior Advocate along with Mr. K.K. Mohapatra, learned counsel for the respondents. 8. Mr. Mohanty, learned counsel for the appellant submits that learned appellate court remitted the matter back to the learned trial court to ascertain (1) what is the corresponding Hal Plot of Sabik Plot No.417/1 (ii) total area of Sabik Plot No.417, (iii) whether any portion of Sabik Plot No.417 or 417/1 has been merged in the river and the extent thereof and directed the learned trial court to submit the report. After remand, a survey knowing commissioner was appointed. He submitted a report. The report having been rejected another commissioner was deputed. He expressed his inability to submit the report. In such a contingency, learned trial court ought to have deputed another commissioner to answer the points mentioned in the remand order. Learned appellate court did not delve deep into the matter and dismissed the appeal. He further submits that the matter may be remitted back to the learned trial court with a direction to the learned trial court to appoint a commissioner to answer the points mentioned in the remand order. 9. Per contra Mr. Mohanty, learned Senior Advocate for the respondents submits that the matter can be examined by the court on the basis of documentary evidence on record i.e. sabik map, hal map as well as sabik ROR and Hal ROR along with the plot index. There is no need to depute a survey knowing commissioner. The survey knowing commissioner expressed his inability to answer the points. Thus no fault can be found with him. There is no need to depute a survey knowing commissioner. The survey knowing commissioner expressed his inability to answer the points. Thus no fault can be found with him. After remand, learned appellate court, on a threadbare analysis of the evidence on record as well as pleadings, came to hold that the plaintiff has failed to prove title over the suit land. The defendants have perfected title over the suit land and dismissed the appeal. There is no perversity in the findings of the appellate court. 10. Learned appellate court directed the learned trial court to depute a survey knowing commissioner to ascertain the points mentioned in the remand order. Pursuant to the direction of the learned appellate court, the survey knowing commissioner was appointed and submitted the report. But the same was not accepted. Thereafter, learned trial court deputed another survey knowing commissioner. When the survey knowing commissioner expressed his inability to submit his report, it was incumbent on the part of the learned trial court to carry out the direction of the learned appellate court and depute a fresh commissioner. But the learned trial court transmitted the record to the learned appellate court. Learned appellate court without delving deep into the matter dismissed the appeal. In view of the same, the judgment of the learned appellate court is set aside. The matter is remitted to the learned trial court to answer the points mentioned in the remand order. It is open to the learned trial court to answer the points by going through the sabik map, hal map as well as Sabik and Hal ROR along with the plot index. In the event it is not possible on the part of the learned trial court to decide the issue, it may take assistance of the survey knowing commissioner. Thereafter, learned trial court shall transmit the record to the learned appellate court. After receipt of the record, learned appellate court shall decide the appeal on merit. The entire exercise shall be conducted within a period of six months from today. 11. The appeal is allowed to the extent indicated above.