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2021 DIGILAW 194 (ORI)

Angira Mishra v. Rasmita Hota

2021-04-20

D.DASH

body2021
JUDGMENT D.Dash, J. - The Appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), seeks to assail the judgment and decree dated 17.07.2020 and 31.07.2020 respectively passed by the learned Additional District Judge, Boudh in R.F.A. No.07 of 2015(T). By the same; the judgment and decree dated 25.02.2015 and 03.03.2015 respectively passed by the learned Civil Judge (J.D.), Boudh, in C.S. No.3 of 2011 have been confirmed. The Plaintiff thus having been unsuccessful in both the Court below is now before this Court with in the Second Appeal. 2. For the sake of convenience and clarity as also to avoid confusion; the parties hereinafter have been referred to in the same rank as assigned to them in the original proceeding before the Trial Court. 3. The Plaintiff's case is that he is in possession of the land under Plot No.629 which corresponds to sabik Plot No.242 under Khata No.46 measuring an area of Ac.0.22 decimals. It is his case that such area of Ac.0.22 decimals as it was in the sabik record of right, without any justification and reason, has been abruptly reduced by Ac.0.04 decimals and thus stood recorded to the extent of Ac.0.018 decimals. It is the specific case of the Plaintiff that his father, during his lifetime, had provided a strip of land of 140 ft. in length and 7-8 ft. in breadth measuring around Ac.0.02 decimals to the poor and landless people who were residing in a Basti over the Government land so as to provide then the access to the PWD Road. It is said that the passage was including the land under Hal Plot No.586 which was being used by those Basti people. It is the very case of the Plaintiff that his father had relinquished the passage in favour of the local gentries in a meeting convened by the then Sarpanch and to that effect, on 17.12.1992, he had executed a document. In course of time, that Basti was shifted from the place and all those Basti people left the place on being rehabilitated on some other land at another place. So, it is said that the land which was left as passage by the father of the Plaintiff was no more used as passage as such user was no more the need. So, it is said that the land which was left as passage by the father of the Plaintiff was no more used as passage as such user was no more the need. The Plaintiff thus claims to have resumed the possession of the said land to the knowledge of all. However, taking advantage of the absence of the Plaintiff, during Consolidation Operation, some persons in enmical terms with the Plaintiff, have manipulated the village map in so far as the land under Plot No.629 is concerned. It is further stated that the Plaintiff, to meet his legal necessity, had alienated the land measuring Ac.0.05 decimals to the Defendant No.2 as also to Defendant Nos.3 and 4 under separate registered sale deeds from out of that land under Plot No.629 and had delivered possession of the same to them. It is also said that the Plaintiff had transferred Ac.0.03 decimals of land to one Dilip Kumar Rout by registered sale deed of the year 2003, i.e, one year after the other two. The transferees have accordingly mutated their land and obtained separate record of rights. The Plaintiff state that recitals in those sale deeds especially in respect of the boundary of the land sold shown under those sale deeds have not been indicated correctly as per the boundary given by the Plaintiff. So, it is said that taking advantage of that, the Defendant No.1 has encroached upon the entire passage belonging to the Plaintiff for which the Suit has been filed. 4. The Defendant Nos.1 to 4, while traversing the plaint averments, has pleaded that after the death of the father of the Plaintiff, the Plaintiff was in possession of the land under Plot No.629 till he sold the same to the Defendant Nos.2, 3 and 4. It is stated that the Plaintiff was never in possession of the suit land described in the plaint schedule after the sale. The Defendant No.2 alienated her land to the Defendant No.1 by registered sale deed of the year 2006. The Defendant Nos.3 and 4 have also alienated their purchased land to Defendant No.1 by another registered sale deed of the year 2006. It is his case that after the purchase, he got those lands mutated in her name to the knowledge of all concerned including the Plaintiff. The Defendant Nos.3 and 4 have also alienated their purchased land to Defendant No.1 by another registered sale deed of the year 2006. It is his case that after the purchase, he got those lands mutated in her name to the knowledge of all concerned including the Plaintiff. It is her case that whatever description as to the boundary of the land were given by the Plaintiff at the time of preparation of the sale deeds, which he executed had been so given/shown and the allegations to that effect are all false. 5. With above rival pleadings, the Trial Court has framed in total five issues. Going to answer the three important issues together, as those are inter-linked, which approach is found to be correct, the Trial Court has recorded the findings on those issues against the Plaintiff. The Suit having thus been decreed, the Plaintiff being unsuccessful had preferred the First Appeal which has also failed. 6. Learned counsel for the Appellant (Plaintiff) submitted that the Courts below have committed grave error in not holding in favour of the resumption of the land left for the passage by the Plaintiff after shifting of that Basti and the Basti people living therein going to live in another place when the land was no more used as passage/road up to the PWD road nor it was the need for anyone. He further submitted that Ext.5, the Amit report marked without objection and admitted in evidence as such ought not to have been rejected by the Courts below and ought not to have been kept beyond the arena of consideration. According to him, that is enough to accept the claim of the Plaintiff as pleaded entitling him to a decree as prayed for. These substantial questions of law being involved in the case to be answered in this Second Appeal, he urges for its admission. 7. The case projected by the Plaintiff is that a strip of land of 140 ft. of length and 7-8 ft. in breadth had been relinquished in favour of the Basti people residing nearby for their user as access to the PWD road. It is his further case that when the situation afterwards changed in view of relocation of that Basti, the Plaintiff resumed the land and came to possess the same. It is stated that the Defendant No.1 has encroached said portion. 8. It is his further case that when the situation afterwards changed in view of relocation of that Basti, the Plaintiff resumed the land and came to possess the same. It is stated that the Defendant No.1 has encroached said portion. 8. The land under sabik Plot No.242 appertaining to Khata No.46 was to the extent of Ac.0.22 decimals as is evident from Ext.6, the sabik ROR of the year 1947. But the subsequent settlement ROR of the year 1990 which has been proved as Ext.3 shows the reduction of the area by Ac.0.04 decimals and as such recorded with an area of Ac.0.18 decimals. This has also been reiterated and so reflected in the final ROR published in the consideration operation as reflected in the ROR (Ext.1). 9. Admittedly, the Defendant Nos.3 and 4 have purchased the land measuring Ac.0.05 decimals from that Suit Plot No.629 by registered sale deed dated 11.02.2002 (Ext.9). That Ext.9 shows that the Plaintiff had sold Ac.0.05 decimals from that area of Ac.0.18 decimals under Plot No.629 to Defendant Nos.3 and 4 describing the boundary therein and it was to the western side of Plot No.629. Defendant No.2 has purchased his land measuring Ac.0.05 decimal from that very Plot No.629 by registered sale deed executed on the same day, i.e, 11.02.2002 vide Ext.A. The land of Defendant Nos.2 and 3 as sold to them is shown to be on the immediate east of the purchase land of Defendant No.2. Not only that in both the sale deeds, the is no mention of any road towards eastern side of Plot No.629 but also it reveals from Ext.9 that there is denial as to even the existence of any road or even existence of any land of the Plaintiff. His evidence on that score contradicts the case projected in the plaint as also the schedule given thereunder. The vendees of the Plaintiff have sold their purchased land to Defendant No.1 vide Ext.C and Defendant No.2 has sold her purchased land to Defendant No.1. They have obtained their separate mutated ROR. The Defendant Nos.3 and 4, under Ext.8, had also sold the land that they had purchased from the Plaintiff to Defendant No.1. That had been mutated in the name of Defendant Nos.3 and 4. Exts.E and F are the two mutated ROR in favour of the Defendant No.1 relating to his purchase of land measuring Ac.0.10 decimals. The Defendant Nos.3 and 4, under Ext.8, had also sold the land that they had purchased from the Plaintiff to Defendant No.1. That had been mutated in the name of Defendant Nos.3 and 4. Exts.E and F are the two mutated ROR in favour of the Defendant No.1 relating to his purchase of land measuring Ac.0.10 decimals. This being the state of affair in the evidence, Ext.5, the Amin report needs discussion as that is now shown to be the sole trumph card of the Plaintiff and it was submitted that the Courts below accepting the same ought to have granted the reliefs as prayed for by the Plaintiff. This report is a non-official one prepared by one Patitapaban Sahu. The document has taken its birth three days prior to the filing of the Suit. Be that as it may, said Patitapaban Sahu has even not been examined from the side of the Plaintiff, who relies upon the document and poses it to be so important as if that alone can bring success to his lis. The First Appellate court has discussed the same in great detail in finally holding that with the surrounding suspicious features, it is also not complete in all respect so as to given any weightage. For all the above, no fault can be found with the First Appellate Court in eschewing that Ext.5 from consideration as having no such relevance in adjudicating the issue. 10. With such evidence on record, the record of right as also the final map having been published in the consolidation operation, the First Appellate Court also appears to be right in taking a view against the maintainability of the Suit. For all the aforesaid, the Suit filed by the Plaintiff seeking a declaration of right, title and interest and other reliefs as to injunction against Defendant No.1, in my considered view, has been rightly dismissed by the Courts below. 11. In view of the aforesaid discussion and reasons, this Court finds no force in the submission of the learned counsel for the Appellant (Plaintiff) that there surfaces any such substantial question of law in the case for being answered in this Appeal meriting its admission. 12. The Appeal is accordingly dismissed. However, in the peculiar facts and circumstances, no order as to cost is passed.