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2018 DIGILAW 358 (ORI)

G. Usharani v. Budhia Sahu (dead)

2018-04-04

D.DASH

body2018
JUDGMENT In these appeals under above noted item No. (A) and (B) filed under Section 100 of the Code of Civil Procedure, the appellant has called in question the common judgment and decree passed by the learned Additional District Judge, Berhampur in Title Appeal No.1/95 corresponding to Title Appeal No.71/85 GDC (A-1) & Title Appeal No.2/95 corresponding to Title Appeal No.78/85 GDC (A-II). 2. The appellant as the plaintiff had filed Title Suit No.13 of 1984 in the Court of learned Civil Judge (Sr. Division), Berhampur praying for delivery of possession of the suit land and mesne profit against Budhia Sahoo (since dead) arrayed as defendant No.1 who is now represented by his legal representatives as respondents on the allegation that he has trespassed into the suit property. The suit was decreed in part by the judgment dated 18.10.1985. The trial Court while passing an order for delivery of vacant possession of the suit property in favour of the plaintiff directing eviction of the said Budhia Sahu, the defendant No.1, however had rejected the claim of mesne profit. 3. Being aggrieved by the aforesaid judgment, when the plaintiff filed the above noted appeal under (A-1), assailing that part of denial of the relief of grant of mesne profit as claimed; the defendant No.1 namely, Budhia Sahoo also filed an appeal under (A-II), questioning the judgment and decree passed against him for eviction directing him for delivery lof vacant possession of the suit property to the plaintiff. Both the appeals being analogously heard were finally disposed of by remanding the suit to the trial Court. Said order of remand was challenged by the plaintiff carrying appeal numbered as M.A. No.183 of 1987 before this Court. By the judgment dated 12.01.1989, this Court remanded the matter to the lower appellate Court with certain directions. Thereafter the appellate Court has dismissed the appeal under (A-1) filed by the plaintiff as the appellant and has allowed the appeal under (A-II) filed by the defendant No.1. The suit of the plaintiff having thus been dismissed, now the above noted second appeals under in (A) & (B) have been filed. 4. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereunder have been referred to as they have been arraigned in the original suit before the trial Court. The suit of the plaintiff having thus been dismissed, now the above noted second appeals under in (A) & (B) have been filed. 4. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereunder have been referred to as they have been arraigned in the original suit before the trial Court. It may be stated here that the plaintiff No.2 is the father of plaintiff No.1. 5. Plaintiffs’ case is that the mother of the plaintiff No.1 had gifted land measuring Ac.11.85 cents (suit land forms a part of it) in village Burudi by a registered deed of gift dated 27.12.1975 and the plaintiff No.2 being the father and head of the family was looking after the said property remaining in possession on behalf of his daughter, the plaintiff No.1. A ceiling proceeding under Chapter-IV of the Orissa Land Reforms Act had been initiated against the plaintiff No.2 which was numbered as OLR Case No.14 of 1977. By order dated 28.05.1977, the plaintiffs were permitted to retain land to the extent of two standard acres described in the schedule of the plaint which is the suit land. Accordingly, pursuant to the order dated 22.12.1978, the Revenue Inspector, Haripur Burudi demarcated the suit land and from that date onwards, the plaintiffs continued to be in cultivating possession of the same as before. They as such remained in possession till August, 1980. The defendant taking advantage of some circumstances finding opportune moment, came to illegally possess the property and thus remained in wrongful possession of the suit land as a trespasser without paying any heed to the protest. Despite demand, when the did not vacate the suit land, the cause of action for filing the suit is said to have been arisen. 6. The defendant does not dispute about the initiation of a ceiling proceeding under Chapter-IV of the OLR Act against the plaintiff. He however expresses his ignorance as to whether the mother of plaintiff No.1 gifted the land measuring Ac.11.58 cents in village Burudi to the plaintiff under the registered deed of gift dated 27.12.1975. It is stated that Tahasildar-cum-Revenue Officer while distributing the ceiling surplus land as declared in the ceiling proceeding initiated against the plaintiff having settled the land measuring Ac.1.20 cents in favour of the defendant No.1, he is in possession of the same, being so delivered with. It is stated that Tahasildar-cum-Revenue Officer while distributing the ceiling surplus land as declared in the ceiling proceeding initiated against the plaintiff having settled the land measuring Ac.1.20 cents in favour of the defendant No.1, he is in possession of the same, being so delivered with. It is further stated that the patta in respect of the said land has been granted to him in the year 1978. The defendant claims to be in possession of said land settled in his favour by the Tahasildar-cum-Revenue Officer as its owner having the right, title and interest. A challenge has also been made with regard to the jurisdiction of the Civil Court to entertain the suit in view of the bar under Section 67 of the OLR Act. 7. The trial Court keeping in view the rival case of the parties, has framed the following issues :- “1. Whether the defendant has any right, title or possession of 1st. Plaintiff’s land measuring Ac.1.20 cents bearing survey No.92/1 under P. No.115 ? 2. Whether the patta issued by the Tahasildar in favour of the defendant for the said land is true, valid and binding on the plaintiffs. ? 3. Whether this Court has jurisdiction to try this suit ? 4. Whether the suit is maintainable ? 5. Whether the plaintiff’s land is undervalued ? 6. Whether the defendant is liable to pay the suit amount and subsequent profits. ? 7. Whether the plaintiffs are entitled to the reliefs claimed for ?” 8. Going to decide issue Nos.1 and 2, on analysis of evidence in the backdrop of pleadings, the trial Court has found the plaintiff to have proved the right, title and interest over the suit land and thus having the right to possess the same. The question relating to the maintainability of the suit under issue Nos. 3 and 4 have been ruled in favour of the plaintiff saying that it being a case of eviction of the trespasser, the jurisdiction of the Civil Court is not ousted under the provisions of Section 67 of the OLR Act which does neither directly nor indirectly get attracted. In so far as the claim of mesne profit is concerned, the same has however been negatived in view of lack of evidence on record from the side of the plaintiff. In so far as the claim of mesne profit is concerned, the same has however been negatived in view of lack of evidence on record from the side of the plaintiff. Based on above findings the decree was passed declaring the right, title and interest of the plaintiff over the suit land with the right to posses the same and with a direction to the defendant No.1 to deliver the vacant possession of the suit land to the plaintiffs. The plaintiffs being aggrieved by denial of the claim of mesne profit against the defendant No.1 filed an appeal (A-1) and so also the defendants being aggrieved by the grant of principal reliefs to the plaintiffs had filed another appeal (A-II). Both the appeals being heard analogously, the lower appellate Court remanded the matter to the trial Court with a direction to appoint a survey knowing Commissioner to find out as to whether the suit property is a part of the ceiling surplus land distributed to the defendant No.1 or is a part of the retained property of the ceiling surplus land holder and accordingly to decide the suit afresh. This judgment of remand of the suit to the trial Court for fresh disposal with the direction as aforesaid was called in question before the Court in Miscellaneous Application No.183 of 1987. This Court by judgment dated 12.01.1989 set aside the order of remand and directed that both the appeals be retained by the first appellate Court and disposed of afresh on merit after getting the survey knowing Commissioner’s report on the said situational aspects of the suit property and upon their ascertainment. The first appellate Court on his second round, on receipt of the report of the survey knowing Commissioner and the sketch map as well as his evidence has allowed the appeal filed by the defendants which has consequently led to the dismissal of the appeal filed by the plaintiffs as also their suit in entirety. 9. The first appellate Court on his second round, on receipt of the report of the survey knowing Commissioner and the sketch map as well as his evidence has allowed the appeal filed by the defendants which has consequently led to the dismissal of the appeal filed by the plaintiffs as also their suit in entirety. 9. The relevant findings with the observations of the first appellate Court are as under :- (i) the plaintiff No.1 has failed to prove that the defendant has encroached upon any part of her retained property as the report discloses that the other non-parties have encroached the retained area to the extent of A.1.96 cents : (ii) the defendant is in possession of more lands than the land measuring Ac.1.20 cents as allotted to him under Ext. A from out of the retained property of plaintiff No.1. (iii) the land lost by the plaintiff is definitely under the possession of the defendant and other but as the Civil Court Commissioner neither in his evidence nor in the report and map has specified about the portion in possession of the land by the defendant in excess, the relief of recovery possession cannot be granted. (iv) it cannot be said that the defendant is only in possession of Ac.1.20 cents of land. There are also chances in the absence of the plaintiffs to possess more land by the defendant but of the retainable land of the plaintiffs. Hence, the extent of the land lost by the plaintiffs is definitely in possession of the defendant and Nahaks. 10. This Court by order dated 22.02.1999 has admitted the appeals on the following substantial questions of law- (a) the report of the Commissioner C.W. 1 is based mainly on the report of the Amin deputed in Demarcation Case No.109/86. It is humbly submitted that this report of the Amin in Demarcation Case No.109 of 1986 is not admissible in evidence because the plaintiff was not a party to the said proceeding nor was there any opportunity given to cross-examine the said Amin before his report became acceptable. As the report of the Commissioner C.W. 1 is based on the report of the Amin in the Demarcation Case, the same has to be set aside. As the report of the Commissioner C.W. 1 is based on the report of the Amin in the Demarcation Case, the same has to be set aside. (b) the learned lower Appellate Court having held that it was not clear from the evidence of P.W. 7 and C.W. 1 as to what extent of land was encroached by the Defendant and further having held that the argument of the learned Counsel for the plaintiffs that the land allotted to the Defendant formed a part of Ac.1.96 in the possession of Nahaks cannot be rejected, grossly erred in law in reversing the decision of the learned Trial Court. (c) the learned Lower Appellate Court grossly erred in law in reversing the decision of the learned Trial Court on the question of title and possession of the plaintiffs which was based on the report of Ext. 5 submitted by the Amin who demarcated the retainable lands of Ac.10.38 in O.L.R. Case No.14/77. The learned lower Appellate Court not having discarded the report of the Amin in Ext. 5, grossly erred in law in reversing the decision of the learned Trial Court. (d) the learned lower Appellate Court also committed an error in law in allowing the application filed by the Defendant under Order 41, Rule 27 C.P.C. whereunder the Defendant prayed for admitting additional documents which included Amin’s Report as per order of the Tahasildar in Demarcation Case No.109/86 and also the order-sheet of the Tahasildar in the said Demarcation case. There documents could not be allowed to be either referred to or relied upon because the Plaintiff was not a party to the case nor was she aware of such a case nor did she have any opportunity to cross-examine the said Amin who submitted the report in the aforesaid Demarcation case. This error of law has vitiated the impugned decision of the learned lower Appellate Court. 11. Learned Counsel for the appellant submitted that the lower appellate court has completely erred both in fact and law by coming to the conclusion merely on the basis of the report of the Commissioner which is totally based upon the report of the Amin who had made the demarcation in Demarcation Case No.109 of 1986. 11. Learned Counsel for the appellant submitted that the lower appellate court has completely erred both in fact and law by coming to the conclusion merely on the basis of the report of the Commissioner which is totally based upon the report of the Amin who had made the demarcation in Demarcation Case No.109 of 1986. According to him, said demarcation report prepared by the Amin in Demarcation Case No.109 of 1986 is not admissible in the evidence, more so when the plaintiffs were not a party to the said demarcation nor had the opportunity to impeach the same by cross examining the said Amin for which the report in as much as it adversely affects the rights of the plaintiffs cannot be so pressed into service. It was next submitted that the lower appellate Court has come to the conclusion on analysis of the evidence of P.W. 1 and C.W. 1 that it is not possible to ascertain the extent of land encroached by the defendant No.1; having further held that the land allotted to the defendant No.1 cannot be said to be not forming a part of Ac.1.96 cents of land in possession of Budhia. With said views, the lower appellate Court ought not to have reversed the decision of the trial Court. He further submitted that the lower appellate Court has utterly failed in his duty by not making any endeavour of re-assessment of the evidence in respect of the situation by demarcating/identifying both retained property of Ac.10.38 cents and the surplus land of Ac.1.20 cents. It is also submitted that the report of the Commissioner as well as the materials available on record are sufficient to arrive at the conclusion that it is the defendant no.1 who had encroached the retained property of the plaintiffs. Learned Counsel for the respondents on the other hand supports the finding of the lower appellate Court. It is submitted the evidence on record is not at all sufficient being not clear, cogent and acceptable to come to the conclusion that the defendant No.1 is in possession of any portion of the land retained property ultimately coming to the hand of the plaintiffs being saved from vesting with the State in that ceiling proceeding. It is submitted the evidence on record is not at all sufficient being not clear, cogent and acceptable to come to the conclusion that the defendant No.1 is in possession of any portion of the land retained property ultimately coming to the hand of the plaintiffs being saved from vesting with the State in that ceiling proceeding. It was his submission that the burden of proof lies upon the plaintiffs to establish the fact in clear and specific term that the defendant no.1 is in possession of any portion of the land which had been retained in that ceiling proceeding since the defendant No.1 can never been said to be in encroacher in respect of the entire property in his possession. 12. As it appears the main dispute is regarding identification of the retained property in the ceiling proceeding. As to whether the property in possession of the defendant No.1 who had been settled with the land measuring Ac.1.20 decimals covers any part of the retained property or it is from out of the surplus land which had been distributed in the OLR Ceiling Case No.14 of 1977 is the question which need be answered so as to decide the fate of the suit (emphasis supplied). Undeniably the plaintiffs have no right, title and interest over the land beyond what had been retained and likewise, the defendant No.1 has no right, title and interest beyond the land leased out to him from out of the surplus land. A careful reading being given to the relevant paras of the judgment of the lower appellate Court, it is seen that one important aspect has been lost sight of that when there is a direction to depute the survey knowing Commissioner for the purpose of finding out as to the exact situational topography identifying the land measuring Ac.10.38 decimals, the retained property, in view of the rival case, it ought to have been viewed that the Commissioner in that situation was under the definite obligation in simultaneously identifying and ascertaining the land measuring Ac.1.20 decimals, which is claimed to have been leased out from out of the ceiling surplus land in favour of the defendant No.1. The Commissioner who has been examined as C.W. 1 has hinted at the report of the Amin in the demarcation case time and again both in his report as well as the evidence. The Commissioner who has been examined as C.W. 1 has hinted at the report of the Amin in the demarcation case time and again both in his report as well as the evidence. So the confusion appears to have started there from which later on is seen to have been compounded. The lower appellate Court’s finding is totally based on the report of the Commissioner which is Ext. 1. But it is seen that said report is not based upon an independent measurement in the field with reference to the relevant records. The Commissioner has completely banked upon the report in Demarcation Case No.109 of 1986 which though have been admitted in the evidence and marked Ext. 5 being the part of the suit record, cannot be used against the plaintiffs as admittedly they had not been afforded with the opportunity to counter and impeach the same by cross-examining said Amin when at that time the measurement was also not in their presence. Therefore, the very foundation of the decision falls flat leading to the collapse of the super structures upon said foundation. Thus in my considered opinion the problem could have been properly grappled and solved by the lower appellate court proceeding to answer the crucial issues and thereby judged the sustainability of the findings on those rendered by the Trial Court, keeping in mind the undisputed factual aspects and those are :- (a) Usharani is entitled to the retained property measuring Ac.10.38 decimals in entirety, (b) some portion of Usharani’s retained property are under encroachment, (c) the defendant No.1 has come to possess the land more than the land settled on him by way of lease measuring Ac.1.20 decimals, (d) the excess land if is in possession of defendant No.1 from the surplus land distributed to others, the same cannot be said to be belonging to plaintiffs. The lower appellate Court should have made the assessment of the respective situations of both the property, i.e. not only the retained property measuring Ac.10.38 decimals but also the land measuring Ac.1.20 decimals settled on defendant No.1 from out of the ceiling surplus lands distinctly so as to put an end to the list. The lower appellate Court should have made the assessment of the respective situations of both the property, i.e. not only the retained property measuring Ac.10.38 decimals but also the land measuring Ac.1.20 decimals settled on defendant No.1 from out of the ceiling surplus lands distinctly so as to put an end to the list. This would have revealed that who has over possessed over whose lawfully entitled property, paving the way either for directing for recovery of possession of any extent of land encroached by the defendant No.1 either in whole or in part from out of the retained property of plaintiff No.1 or not at all. The substantial questions of law are answered accordingly. 13. In the wake of aforesaid, the ultimate finding of the lower appellate Court cannot sustain. Accordingly, the judgment and decree passed by the lower appellate Court are set aside. Consequently, the appeals are remitted to the lower appellate Court for their disposal afresh keeping in view the observations made hereinabove and in accordance with law. 14. The appeals are accordingly disposed of . In the facts and circumstances of the case, however no order as to cost is passed. Viewing the age of the lis, it is observed that the lower appellate Court would do well to make all the endeavour for early disposal of the appeals. Appeals disposed of.