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2018 DIGILAW 487 (ORI)

Bikal Charan Swain v. Nidhi Swain

2018-04-30

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. The defendant is the appellant against a confirming judgment. 2. Plaintiffs-respondents instituted the suit for declaration that the entry in the remarks column of the R.O.R. in respect of plot no. 431, Schedule-A property is wrong. The case of the plaintiffs is that the plaintiffs and defendant were members of one family. As dissensions cropped up, they were separated in mess and property. The property was partitioned. The partition deed was registered on 03.12.1958. The suit tank appertains to C.S. Plot No. 434, Ac. 0.07 dec. and C.S. Plot No. 433, Ac. 0.03 dec. The final R.O.R. was published on 01.04.1977 in their names. But in the remarks column, the defendant’s right to use water has been reflected. The same is apparently wrong. 3. The defendant entered contest and filed a written statement-cum-counter claim. The case of the defendant is that the plaintiffs and the defendant are members of joint Hindu Mitakhara Co-parcenary. By means of a registered partition deed dated 03.12.1958, plaintiffs got the entire C.S. Plot No. 433 and C.S. Plot No. 434, Ac. 0.41 dec. including the suit tank measuring Ac. 0.07 dec. and an area of Ac. 0.23 dec. from the northern and eastern portion of C.S. Plot No. 434 including Ac. 0.02 dec. of the tank. He does not know reading and writing. Taking advantage of his illiteracy, the plaintiff no. 1 managed to record their names. It is further pleaded that H.S. Plot No. 430 corresponds to C.S. Plot No. 434 and H.S. Plot No. 431 corresponds to C.S. Plot Nos. 433 and 434. Though the plaintiffs got Ac. 0.41 dec. of tank out of C.S. Plot No. 434 under the deed of partition, the area corresponding to H.S. Plot No. 430 has been wrongly recorded as Ac. 0.45 dec. in the names of the plaintiffs. The same includes Ac. 0.02 dec. of tank in C.S. Plot No. 434 allotted to the defendant in the partition deed. He objected before the settlement authorities against wrong recording of the names of the plaintiffs. He has right, title and interest over Ac. 0.02 dec. of tank appertaining to H.S. Plot No. 430 described in Schedule-A. With this factual scenario, he prayed, inter-alia, for declaration of title, confirmation of possession or in the alternative for recovery of possession, in the event he is dispossessed from the tank and permanent injunction. 4. He has right, title and interest over Ac. 0.02 dec. of tank appertaining to H.S. Plot No. 430 described in Schedule-A. With this factual scenario, he prayed, inter-alia, for declaration of title, confirmation of possession or in the alternative for recovery of possession, in the event he is dispossessed from the tank and permanent injunction. 4. On the inter se pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court decreed the suit with a finding that the entry in the remarks column in the M.S. R.O.R. in respect of the suit plot is incorrect and should be deleted. The defendant has no semblance of title and possession over the suit land. The defendant preferred an appeal. The first appellate court allowed the appeal on 16.01.1982. The suit was remitted back to the learned trial court with a direction to appoint a survey knowing commissioner. The plaintiffs filed Misc. Appeal No. 113 of 83 before this Court. The order of remand was set aside. The learned appellate court was directed to consider the question of open remand under Order 41 Rule 23 (A) CPC in case remand is at all necessary after judicial consideration of the provisions of Order 41 Rule 25 CPC is held to be inadequate. Learned appellate court came to hold that there is no dispute regarding the identity and boundary of the suit tank. Thus there is no necessity for remand of the suit. It concurred with the findings of the learned trial court and dismissed the appeal. 5. The Second Appeal was admitted on the substantial questions of law enumerated in ground nos. 10(a) and (e) of the appeal memo. The same are:- “10.(a) Whether the learned appellate court is justified in holding that the case is not one deserving the appointment of a survey knowing commissioner when there is discrepancy with regard to the area of the tank appertaining to plot no. 434 and the area of the corresponding Hal Settlement R.O.R. plots and also there is discrepancy to the area of the tank in possession of the respective parties, which cannot be evidenced without measurement of the same by a survey knowing commissioner in view of this peculiar nature of the dispute? 434 and the area of the corresponding Hal Settlement R.O.R. plots and also there is discrepancy to the area of the tank in possession of the respective parties, which cannot be evidenced without measurement of the same by a survey knowing commissioner in view of this peculiar nature of the dispute? (e) Whether the learned courts below are justified in accepting plaintiff’s case which are against the materials available on records?” 6. Heard Mr. S.P. Mishra, learned Senior Advocate along with Mr. L.K. Moharana, learned counsel for the appellant and Mr. N.P. Pattnaik, learned counsel along with Mr. Surojit Mohanta, learned counsel for the respondents. 7. Mr. Mishra, learned Senior Advocate for the appellant submitted that the dispute pertains to identification of Ac. 0.02 dec. of land appertaining to C.S. Plot No. 434. The dispute can be resolved by appointing a survey knowing commissioner. He further submitted that evidence of the plaintiffs is contradictory to pleading. The plaintiffs are not sure of their entitlement. To buttress the submission, he relied on a decision of this Court in the case of Mahendranath Parida vs. Purnananda Parida and Others, AIR 1988 Orissa 248. 8. Per contra, Mr. Pattnaik, learned counsel for the respondents submitted that there is no dispute with regard to the entitlement of the plaintiffs. The tank was allotted to the plaintiffs in the partition. Learned appellate court rightly held that the dispute does not pertain to identification and measurement of the suit tank. Both the courts negatived the claim of the defendants. There is no perversity or illegality in the said finding. 9. Learned appellate court held that both the parties claimed their title and possession over the suit tank on the basis of partition deed vide Ext.4. The parties admit that C.S. Plot Nos. 434, 433 corresponds to Hal Plot No. 431, which is the suit plot. There is no dispute regarding identity or description of the suit plot. However there is a dispute with regard to area of the suit tank. The plaintiffs claimed that the suit tank appertains to C.S. Plot No. 434, Ac. 0.07 dec. and C.S. Plot No. 433, Ac. 0.03 dec. total Ac. 0.10 dec. The C.S. R.O.R. Ext.1 shows that C.S. Plot No. 433, Ac. 0.03 is a tank. C.S. Plot No. 434, Ac. 0.64 dec. is a paddy field. The plaintiffs claimed that the suit tank appertains to C.S. Plot No. 434, Ac. 0.07 dec. and C.S. Plot No. 433, Ac. 0.03 dec. total Ac. 0.10 dec. The C.S. R.O.R. Ext.1 shows that C.S. Plot No. 433, Ac. 0.03 is a tank. C.S. Plot No. 434, Ac. 0.64 dec. is a paddy field. The lands have been recorded in the names of Sridhar Swain and Labana Swain. Sridhar is the father of the plaintiff nos. 1 and 2. Labana is the father of defendant. C.S. Plot No. 430, Ac. 0.09 dec. is a paddy field. In the Hal Settlement R.O.R. vide Ext.2, Plot No. 431 has been recorded as a tank having an area of Ac. 0.08 dec. with a note in the remarks column that the defendant can use the water of the tank. It further held that from partition deed vide Ext.4, it is revealed that the tank appertaining to C.S. Plot No. 434, Ac. 0.07 dec. and C.S. Plot No. 433, Ac. 0.03 dec. fell to the share of the plaintiffs. Hal Plot No. 431, Ac. 0.08 dec. is a tank, which corresponds to C.S. Plot Nos. 433 and 434. The defendant admits that the suit tank fell to the share of the plaintiffs in the partition. But then, there is no mention that the defendant has right to use the water of the suit tank. Ext.4 does not speak of any division of the tank between the plaintiffs and defendant. Thus the defendant has no title or possession over the suit tank. There is no perversity or illegality in the said findings. 10. In Mahendranath Parida (supra), this Court held that where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot. There is no quarrel over the proposition of law. The decision cited by the learned counsel for the appellant is distinguishable on facts. As rightly held by the courts below that the dispute does not pertain to identification and measurement of the suit tank. There is no quarrel over the proposition of law. The decision cited by the learned counsel for the appellant is distinguishable on facts. As rightly held by the courts below that the dispute does not pertain to identification and measurement of the suit tank. The substantial questions of law are answered accordingly. 11. A priori, the appeal fails and is dismissed. There shall be no order as to costs.