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2019 DIGILAW 258 (ORI)

Pradip Chandra Patra v. State Of Orissa

2019-03-29

A.K.RATH

body2019
JUDGMENT : A.K.Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of title. 2. Case of the plaintiff is that he purchased a land appertaining to plot no.608/5753, Ac.0.09 dec., plot no.610, Ac.0.09 dec., plot no.611, Ac.0.08 dec. by means of a registered sale deed dated 8.11.1961 from Gouri Shankar Das Mohapatra. The plots are adjoining to the river Jarali and Sarali. Plot Nos.608/5753 and 611 are situated to the west of river Jarali. The land appertaining to major settlement plot nos.499, 500 and 501 gradually accreted to his purchased land. He was in possession of the land from the date of purchase. He used to pay rent. During major settlement operation, the land appertaining to plot nos.499, 500 and 501 was recorded in the name of the Government under Anabadi khata no.244. He applied before the Board of Revenue for correction of ROR on the ground that the river Jarali and Sarali had washed away his raiyati land to the extent of Ac.0.13 dec. from one side. He sold an area of Ac.0.23 dec. of land to defendant no.3 and Harendra Nath Sahu. He is in possession of Ac.0.85 dec. Out of the same, Ac.0.43 dec. of land has been recorded in his name. He is in possession of the land by way of gradual accretion to his purchased land. Defendant no.1 has no semblance of right, title and interest over the same. Defendant nos.2 and 3 have encroached upon Ac.0.19 dec. of land. They filed an application under Sec.144 Cr.P.C., which was dropped on 27.5.1995. When defendants 2 and 3 started construction, he instituted the suit seeking the reliefs mentioned supra. 3. Defendants 1 to 3 were set ex parte. No witness was examined by the plaintiff. On his behalf, eleven documents had been exhibited. Learned trial court dismissed the suit holding, inter alia, that neither the map nor any document had been filed to prove that Schedule-A land adjoins to the land of the plaintiff. The plaintiff failed to establish the formation of the suit land by gradual accretion of river Jarali and Sarali and title over the suit land. Unsuccessful plaintiff filed an appeal before the learned District Judge, Baripada, which was transferred to the court of Ad hoc Addl. District Judge (FTC), Baripada and renumbered as RFA No.15/28 of 2004/2003. The plaintiff failed to establish the formation of the suit land by gradual accretion of river Jarali and Sarali and title over the suit land. Unsuccessful plaintiff filed an appeal before the learned District Judge, Baripada, which was transferred to the court of Ad hoc Addl. District Judge (FTC), Baripada and renumbered as RFA No.15/28 of 2004/2003. The appellant had filed an application under Order 41 Rule 27 CPC to admit the notice in Encroachment Case No.573 of 1989 as additional evidence. Learned appellate court held that the plaintiff failed to establish any link between his purchased land and the suit land, which stands recorded in the name of defendant no.1. The title rests with the defendant no.1. The plaintiff can claim possessory title over the suit land. The encroachment case of the year 1989 cannot establish the title of the plaintiff against defendant no.1. Even if the petition of additional evidence is allowed, no useful purpose will be served. Held so, it dismissed the appeal. 4. The second appeal was admitted on the following substantial questions of law enumerated in ground no.2(B) and (C): "(B) Whether non framing of the issues in the suit and appeal vitiates the judgments of the courts below; (C) Whether the learned lower appellate court is justified in rejecting the application for additional evidence when the same was necessary for effective adjudication of the appeal and the suit. 5. Heard Mr.L.K. Moharana on behalf of Mr.S.P. Mishra, learned Senior Advocate for the appellant and Mr. R.P. Mohapatra, learned AGA. None appeared for respondents 2 to 4. 6. Mr. Moharana, learned counsel for the appellant submitted that Exts.1 to 11 had not been taken into consideration by the learned courts below. Ext.1 and 2 are the sale deeds. Exts.3 to 8 are the certified copies of the record-of-right appertaining to the purchased land as well as the suit land. Exts.9 to 11 are the copies of the objection case and the amin reports. When the plaintiff had filed the documents indicating the plot numbers of the river Jarali and Sarali, learned trial court committed an error in arriving at a finding that no document was filed to that effect. Plaintiff filed an application under Order 41 Rule 27 CPC to admit the notice in Encroachment Case No.573 of 1989 as additional evidence. When the plaintiff had filed the documents indicating the plot numbers of the river Jarali and Sarali, learned trial court committed an error in arriving at a finding that no document was filed to that effect. Plaintiff filed an application under Order 41 Rule 27 CPC to admit the notice in Encroachment Case No.573 of 1989 as additional evidence. The said document indicates the map of mouza unit no.3 and the suit plot adjoins to the plaintiff's recorded land. From the encroachment case, it is manifest that the plaintiff is in possession of the same. He further submitted that learned appellate court without analysing the said document rejected the application on untenable and unsupportable grounds. He further submitted that the term 'accretion' signifies addition of alluvial to a holding which takes place due to recess of a river or sea or river changing the course due to deposit of sand, soil and silt causing diversion of the flow of water course as a natural process. The accretion or alluvion must be of the same or almost of the same level of holding to which it abuts and must be capable of being put to same use as that of the holding concerned. It must have been formed by natural process. As per the provision of Sec.21 of the Orissa Land Reforms Act, such deposit and formation of new land would be an accretion to the holding adjoining the same. A raiyat of a holding acquires raiyati right over the accreted land which gets amalgamated to his holding. In order to ascertain the same, field enquiry is required. No document can be produced to establish the accretion, unless the same is enquired. He further submitted that the plaintiff had produced documents to show accretion such as ROR, map and encroachment record and adduced evidence. Both the courts below without analysing the evidence in its proper perspective arrived at a finding that the plaintiff did not produce any document to establish the accretion. He further submitted that where accretion is gradual and imperceptible, it is impossible to say to whom the land belongs and equity suggests that same should go to the owner of the plot to which it has accreted. In case of any doubt regarding possession, it was open for the court to issue a commission as provided under Order 26 Rule 9 CPC for local investigation. In case of any doubt regarding possession, it was open for the court to issue a commission as provided under Order 26 Rule 9 CPC for local investigation. Non consideration of material evidence vitiates the judgment. To buttress the submission, he placed reliance on the decision of this Court in the case of Mala Mallik and others v. Shyam Sundar Das and others, (2015) 2 OrissaLR 182. 7. Mr. Mohapatra, learned AGA submitted that both the courts below have concurrently held that the plaintiff has failed to establish the title over the suit land. There is no perversity in the findings of the courts below. He further submitted that the plaintiff is not in possession of the suit land. There is no prayer for recovery of possession of the suit land. Thus suit is not maintainable. He placed reliance on the decision of the apex Court in the case of Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 . 8. Rule 1 of Order 14 CPC provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Since defendant nos.1 to 3 had not filed the written statement and set ex parte, the question of framing of issue does not arise at all. 9. In the application under Order 41 Rule 27 CPC, the plaintiff sought to admit the notice issued by the Tahsildar in Encroachment Case No.573 of 1989. Learned appellate court delved deep into the matter and held that it is the admitted case that the title rests with defendant no.1. The encroachment case in the year 1989 initiated against the plaintiff does not establish his title against the defendant no.1. Even if the petition of additional evidence is allowed, no useful purpose will be served. 10. Both the courts concurrently held that the plaintiff has failed to establish the title over the suit property. The plaintiff has failed to establish the link between his land and the suit land which stands recorded in the name of defendant no.1. There is no perversity in the said finding. The substantial questions of law are answered accordingly. 11. In Ibrahim Uddin, the plaintiff instituted the suit for declaration of title over the suit property. He was not in possession of the suit property. There was no prayer for restoration or possession or any consequential relief. There is no perversity in the said finding. The substantial questions of law are answered accordingly. 11. In Ibrahim Uddin, the plaintiff instituted the suit for declaration of title over the suit property. He was not in possession of the suit property. There was no prayer for restoration or possession or any consequential relief. The apex Court held that the suit was barred by the provision of Section 34 of the Specific Relief Act. 12. The decision in the case of Mala Mallik is distinguishable on facts. This Court held that the import of the provisions is that a raiyat of a holding acquires raiyati right over the accreted land which gets amalgamated to his holding for which he is liable to pay additional rent for the accretion. Acquisition of such right is by operation of law and the law does not contemplate of making any application for settlement of the accreted land in favour of the raiyat of the holding. However, the raiyat to whose holding a land has accreted may make an application to the concerned Revenue Officer in order to bring to his notice about such accretion. Even without any such application, the Revenue Officer is competent to settle additional rent for the accretion if it comes to his knowledge suo motu or from any other source, but he must be satisfied that the land in question is really an accretion to the holding of the raiyat. 13. Resultantly the appeal fails and is dismissed. There shall be no order as to costs.