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2018 DIGILAW 613 (ORI)

PURNA CHANDRA MISHRA v. TAHASILDASR, NILGIRI

2018-06-25

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J - This appeal is by the plaintiff. The suit was for declaration of title and correction of M.S.R.O.R. 2. The case of the plaintiff was that his father had purchased the suit land by means of a registered sale deed. His father was in possession of the suit land till his death. After him, the plaintiff is in possession of the suit land. In the M.S.R.O.R., the suit land had been wrongly classified as 'Gochar'. In the remarks column his possession had been reflected. He had planted trees over the suit land. He raised paddy crops. While matter stood thus, the Tahasildar, Nilgiri, defendant no.1 initiated L.E. Case No. 110/1 of 1988-89 for eviction. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendants filed a written statement denying the assertions made in the plaint. The case of the defendants was that the suit was barred by limitation, since the same was filed after three years from the date of publication of the R.O.R. The suit land had been classified as 'Gochar'. The suit land is not identifiable. 4. Stemming on the pleadings of the parties, learned trial court struck five issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf two documents had been exhibited. Learned trial court dismissed the suit holding that the plaintiff had failed to produce the sale deed. Plaintiff had no title over the suit land. Unsuccessful plaintiff filed T.A. No. 04 of 1991-I before the learned District Judge, Balasore, Bhadrak, Balasore, which was eventually dismissed. 5. The appeal was admitted on the following substantial question of law:- "Whether the learned appellate court went wrong in not providing adequate opportunity to adduce additional evidence after passing the order under Order 41 Rule 27 clause (b) C.P.C.?" 6. Heard Mr. Pranay Mohanty, learned Advocate on behalf of Mr. P.K. Mohanty, learned Senior Advocate for the appellant and Mr. Swayambhu Mishra, learned Additional Standing Counsel for the State. 7. Mr. Mohanty, learned Advocate for the appellant submits that the suit was filed for declaration of title and correction of R.O.R. The courts below committed a manifest illegality in holding that the suit was barred by limitation. The suit land is identifiable. Swayambhu Mishra, learned Additional Standing Counsel for the State. 7. Mr. Mohanty, learned Advocate for the appellant submits that the suit was filed for declaration of title and correction of R.O.R. The courts below committed a manifest illegality in holding that the suit was barred by limitation. The suit land is identifiable. Referring to Parchas, vide Ext.2/a and M.S. R.O.R., vide Ext.3, he submits that the plaintiff is in possession of the suit land since long. No opportunity was provided by the learned appellate court to adduce additional evidence. To buttress his submission, he relies upon a decision of the Court in the case of Sukri Naik v. Shantilata Pradhan and another, (2016) 122 CutLT 824. 8. Per contra, Mr. Mishra, learned Additional Standing Counsel for the State submits that description of the suit land is vague. The suit land consists of Ac.2.60 dec. The plaintiff claims Ac.1.70. No description of the boundary has been given. Plaintiff failed to substantiate the title over the suit land. The kissam of suit land is 'Gochar'. There is no pleading with regard to adverse possession. But then, the prayer has been made to declare title on the basis of adverse possession. 9. Order 7 Rule 3 C.P.C. postulates that where the subjectmatter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In the plaint, the suit land has been described as follows:- "District-Balasore, P.S./Tahasil-Nilagiri, Mouza-Gobindapur, Khata No. 116 (rakhit), Plot No. 272, Ac.1.70 dec. out of Ac.2.60 dec." 10. The plaintiff claims Ac.1.70 dec. out of Ac.2.60 dec., but no description of the boundary has been given. The suit land is not identifiable. 11. The plaintiff asserts that his father had purchased the suit land by means of a registered sale deed. But then, no sale deed had been exhibited in the court below. The courts below, an anatomy of pleading and evidence on record, came to hold that the plaintiff had failed to substantiate his title. The R.O.R. neither creates title nor extinguishes title. Merely because the name of the plaintiff has been reflected in the remarks column, the same does not confer title. There is no pleading with regard to adverse possession. 12. The R.O.R. neither creates title nor extinguishes title. Merely because the name of the plaintiff has been reflected in the remarks column, the same does not confer title. There is no pleading with regard to adverse possession. 12. The nature of the suit land is 'Gochar'. This Court in the case of Mahendra Kumar Mohapatra and others v. Ganesh Chandra Mohapatra (dead) through L.Rs. and others (R.S.A. No. 499 of 2004 disposed of on 23.10.2017), held that:- "11. This Court had an occasion to deal with the scope and ambit of the second proviso to Sec. 7 of the O.P.L.E Act in Prafulla Ku. Mohapatra . This Court held that second proviso to Sec. 7 of the O.P.L.E. Act stipulates that no such settlement shall be made if the lands recorded as Gochar. Sec. 8-A has to be 7 harmoniously read with Sec. 7 of the O.P.L.E. Act. Even if a person is in unauthorized occupation of Gochar land for more than 30 years, the same cannot be settled under Sec. 8-A of the O.P.L.E. Act." 13. The application for additional evidence filed by the appellant in the first appellate court was allowed. Thus it is too late in the day to say that no opportunity was provided to the plaintiff to adduce additional evidence. 14. The decision cited in the case of Sukri Naik is distinguishable on facts. In the said case, the suit land had been described by assigning survey number with boundary. The substantial question of law is answered accordingly. 15. In the ultimate analysis, the appeal fails and is dismissed. There shall be no order as to costs. Final Result : Dismissed