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2018 DIGILAW 720 (ORI)

Arati Meher v. State of Orissa

2018-08-07

D.DASH

body2018
JUDGMENT This is an appeal under Section 96 of the Code of Civil Procedure (for short hereinafter called ‘the Code). The unsuccessful plaintiff has assailed the judgment and decree dated 10.11.2009 and 21.11.2009 respectively passed by the learned Civil Judge (Senior Division), Patnagarh in civil Suit No.90 of 2008 in non-suiting the plaintiff and refusing to pass a decree at her behest declaring her right, title and interest over the suit land and for recovery of possession of the same; and in the alternative, grant compensation. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. Plaintiff’s case is that the land in the suit stood recorded in the name of Ganda Meher. According to the request of the local people, the said Ganda Meher had given the suit land for establishment of the village school for temporary period till provision is made by the State by allotting the land for construction of the school building. It is next said that the school building was constructed over the said suit land. It has been stated that in the family partition, the suit land has been allotted to the share of Meghu Meher and accordingly, it was so recorded in his name and he paid the land revenue. Meghu Meher had been requesting the village committee looking after the affairs of the village primary school to vacate the suit land. The members of the committee although initially agreed to do so, later on stepped back and resiled from their promise. It is stated that Meghu had informed the matter to the District Inspector of School seeking his indulgence in the matter to do the needful but no such development took place. 4. The plaintiff who is the eldest daughter of Meghu has now filed the suit mainly praying that :- (i) the right and title of the plaintiff over the suit land be declared and the possession of the suit land be given to the plaintiff, and (ii) alternatively, Rs.10,00,000/- (Rupees Ten Lakhs) be given to the plaintiff along with the co-sharers as compensation. 5. The defendant nos. 5. The defendant nos. 2 to 4 coming to contest the suit in their written statement have asserted that the construction of the school building is over the land under Plot No.1153 and not over the land under 1154. The factum of giving of the land by Ganda Meher for temporary use for the purpose of running the primary school has been stoutly denied. With these, they have prayed to non-suit the plaintiff. 6. The trial Court with the above rival pleadings has framed as many as seven issues; out of which the Court below has rightly taken up issue No.3 for decision at first, since it is the pivotal one and the fate of the suit solely hinges upon the answer to that issue. Upon discussion of evidence let in by the parties, the finding has the following :- Xxxx xxxx xxxx xxxx Xxxx xxxx xxxx xxxx It cannot be said that the school building was constructed over the land under Plot No.1154 of Khata No.46 corresponding to land under Khata No.578/655. Finding has been that-it cannot be said at mouza Patnagarh “Ka”. The next finding against the plaintiff is that the suit land is not in possession of the defendant No.1 to 4 and the last one is that the suit for at the behest of the plaintiff in the reliefs claimed that is her exclusive right, title and interest in respect of the subject matter is not maintainable in the eye of law. 7. Learned Counsel for the appellant submits that the trial Court has appreciated the evidence on record in a perverse manner and therefore the ultimate conclusions are the outcome of perverse appreciation of evidence. He further submits that the evidence on record clearly suggest that the building of the primary school of the village stands over the land of the plaintiff’s father and this plaintiff being the eldest daughter of the owner of the land ought not to have been denied with the reliefs claimed in the suit. 8. Learned Additional Government Advocate submits all in favour of the findings rendered by the trial Court. According to him, when the defendants denied the existence of the school building over the land in suit and the court on the basis of evidence on record has rightly found that the defendant nos. 8. Learned Additional Government Advocate submits all in favour of the findings rendered by the trial Court. According to him, when the defendants denied the existence of the school building over the land in suit and the court on the basis of evidence on record has rightly found that the defendant nos. 1 to 4 are not in possession of the suit land, the suit filed by the plaintiff to declare her exclusive right, title and interest over the same has thus rightly been dismissed, and further relief of recovery of possession of the suit land from the defendant No.1 to 4 and grant of compensation have also been rightly refused. He next submits that when plaintiff admits that Meghu Meher had given the suit land for the temporary use for the purpose of the school, in the absence of any evidence as regards such conditional giving, in view of such open, long, continuous possession by the school with its structure, which is the case of the plaintiff, the presumption is that the true owner’s title has stood extinguished and the suit is barred by law of limitation. 9. In order to address the rival submissions; touching the case and counter case of the parties, with reference to the findings under challenge, it be stated at the risk of repetition that the plaintiff in her evidence has stated that the land under plot No.1154 under holding No.46 as per the record of current settlement stands in the name of Ganda Meher and that the land corresponds to the land under plot no.578/655 of mouza Patnagarh ‘Ka’ as per hal settlement which is in the name of her father Meghu Meher. It is her case that Ganda Meher had given that land for temporary use for the purpose of running the primary school by putting up some construction over there till availability of alternative arrangement from the side of the State. The defendants’ case is that the school building is not over that plot of land and it is on the land under plot No.1153. The record of right in respect of the suit land does not find mention of any such noting in the relevant column about the existence of the school over land under plot No.1154. This record of right is of the year 1977 and then the recorded tenant was Ganda Meher. The record of right in respect of the suit land does not find mention of any such noting in the relevant column about the existence of the school over land under plot No.1154. This record of right is of the year 1977 and then the recorded tenant was Ganda Meher. The record of right has been corrected by virtue of an order of the Tahasildar, Patnagarh in OLR Case No.71 of 2006 by way of substitution of the name of earlier recorded tenant, Ganda Meher by Meghu Meher. The plaintiff claims to be the eldest daughter of Meghu Meher. She is claiming the relief of declaration of her exclusive right, title, interest asserting all those and unto herself. The plaintiff has also not filed any document regarding demarcation of the suit plot as to have been made prior to the filing of the suit. She is unable to say the details of the suit land and has candidly admitted that her father was looking after the suit land and records connected thereto. It is not pleaded or said in the evidence as to in which year Ganda Meher had given the land for the purpose of school and no acceptable evidence is on record as to that giving of the land by Ganda Meher on that condition to get back the land on availability of the alternative provision and also as to if the alternative provision if has been made available and if so as to when so as to judge the nature of possession, if it is so. With such evidence on record, I am in no way persuaded to take a view contrary to what has been taken by the trial Court. Accordingly the findings of the trial Court are affirmed. Consequently, the dismissal of the suit is confirmed. 10. In the result, the appeal stands dismissed. The parties are to bear their respective cost of litigation throughout. Appeal dismissed.