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2018 DIGILAW 456 (ORI)

Parvati Misra v. Nabin Chandra Misra

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. Plaintiff is the appellant against a confirming judgment in a suit for recovery of possession and mesne profit. 2. The case of the plaintiff is that she is the owner of suit Schedule-A property. She purchased the same by means of a registered sale deed dated 17.8.1971. In June, 1979 the defendants encroached upon Schedule-B land, part of Schedule-A land and constructed a cowshed over the same. The defendants have no semblance of right, title and interest over the same. 3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the plaintiff has no semblance of right, title and interest over the Schedule -A and B land. Schedule-A land originally belonged to one A.Bhaneswar Rao, who handed over a portion of the land to Veterinary Department for establishment of a Stockman Centre. A portion of the land was also given to the Government of Orissa. He entered into an agreement with one Chandramani Patro in the year 1967 to sell Ac.0.32 dec. and delivered possession. Chandramani Patro constructed a house and cowshed over the same. Since he did not pay the balance consideration amount, sale deed was not executed. Thereafter, A.Bhaneswar Rao sold the land to Saraswati Misra by means of a registered sale deed dated 21.12.1974. Chandramani Patro delivered possession to Saraswati Misra along with house and cowshed. The plaintiff’s husband was an attesting witness to the sale deed. The defendants are in possession of the suit property. It is further stated that they are in possession of the land for more than statuary period peacefully, continuously with the hostile animus to the true owner and as such perfected title by way of adverse possession. 4. On the inter se pleadings of the parties, learned trial court framed eight issues. Parties led evidence, oral and documentary to substantiate their cases. The Civil Court Commissioner was deputed for measurement of the suit land. He submitted the report. The Commissioner was examined as C.W.1. The report as well as the map had been exhibited as Ext.C/I and Ext.C/II. On an analysis of the pleadings and evidence, learned trial court came to hold that the plaintiff has no manner of right, title and interest over the property described in Schedule-B of the plaint. The defendants have purchased the property described in Schedule-B of the plaint. The report as well as the map had been exhibited as Ext.C/I and Ext.C/II. On an analysis of the pleadings and evidence, learned trial court came to hold that the plaintiff has no manner of right, title and interest over the property described in Schedule-B of the plaint. The defendants have purchased the property described in Schedule-B of the plaint. They are in possession of the same. Held so, it dismissed the suit. Unsuccessful plaintiff filed T.A.No.13 of 1989 before the learned Additional District Judge, Jeypore, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial question of law: “Whether the ultimate conclusion can at all be sustained in view of the report of the Commissioner, which has been accepted by the two courts below?” 6. Mr. Pranay Swain, learned Advocate on behalf of Mr. B.Routray, learned Senior Advocate for the appellant submitted that plaintiff is the owner in possession of the suit schedule property. She purchased the same by means of a registered sale deed dated 17.8.1971, Ext.1. The defendants have encroached upon a portion of the same mentioned in the Schedule-B of the plaint. The defendants have no right, title, interest or possession over the same. The courts below committed a manifest illegality and impropriety in placing reliance on the report of the Commissioner. The finding of the courts below that the defendants have title over the Schedule-B land is perverse. 7. Per contra, Mr. P.V. Balkrishna, learned Advocate for the respondents submitted that the courts below concurrently held that the defendants are the owner in possession of the Schedule-B land. There is no perversity or illegality in the findings of the courts below. 8. The report of the Civil Court Commissioner forms a part of the record and the same has to be considered by the Court along with the evidence on record. The report of the Civil Court Commissioner, Ext.1, reveals that plaintiff is not in possession of Schedule-A land. The descriptions of the land mentioned in the Schedule-A of the plaint and registered sale deed, Ext.1, does not tally. The report of the Civil Court Commissioner, Ext.1, reveals that plaintiff is not in possession of Schedule-A land. The descriptions of the land mentioned in the Schedule-A of the plaint and registered sale deed, Ext.1, does not tally. On a threadbare analysis of the evidence on record and pleadings, learned appellate court came to hold that out of an area Ac.0.62 cents Ac.0.10 cents given for Stockman Centre, well has been dug on Ac.0.02 cents of land and the balance comes to only Ac.0.50 cents, out of which Ext.A shows that the defendants have purchased Ac.0.35 cents. Ext.1 reveals that an area of 170 ft. East-West and 140 ft. North-South was purchased by the plaintiff from A.Appa Rao and two others sons of late A. Adinarayana, whereas the defendants have purchased Ac.0.35 cents of land from A.Bhaneswar Rao, A.Prasad Rao, A.Appa Rao, A.Bhujanga Rao and A.Hanumantha Rao. The Civil Court Commissioner was deputed to demarcate the encroached portion and report. C.W.1, Civil Court Commissioner found the plaintiff is in possession of an area of 210 links East-West, on the North 193 links, East-West, on the South 138 links North-South, on the East and 80 links North-South, on the West and its area is Ac.0.28 decimals. It concurred with the finding of the learned court below that the cowshed exists over the defendants land. The plaintiff has no right, title and interest over Schedule-B land. There is no perversity or illegality in the findings of the court below. The substantial question of law is answered accordingly. 9. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No Costs.