Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 330 (ORI)

Kasturi Mohanty v. Ajaya Kumar Pani

2021-07-29

D.DASH

body2021
JUDGMENT 1. This Appeal under Section-100 of the Code of Civil Procedure (hereinafter called as the Code) has been filed in assailing the judgment and decree passed by the learned Additional District Judge, Nimapara in RFA No.193/41 of 2016/2015. By the same, learned First Appellate Court has confirmed the judgment and decree dated 18.4.2015 and 25.4.2015 respectively passed by the learned Civil Judge (Junior Division), Nimapara in Civil Suit No. 122 of 2013. It is pertinent to state here that the husband of this present Appellant was the Defendant No. 1 before the Trial Court and having suffered from the judgment and decree passed therein; he had preferred the First Appeal. The said original Defendant No.1 having died after disposal of the First Appeal, his wife being the legal representative as the sole Appellant has presented the Second Appeal. 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. The Plaintiffs suit is for permanent injunction against the Defendant No. 1 in restraining him from making any construction over the suit land and block passage and interfere in any manner in respect of the user of the suit land. One Bipini Bihari Pattnaik is said to be the owner of the land under Hal Plot No. 3388 corresponding to Sabik plot No. 2884. It is stated that from out of the total land of Ac.0.14 dec., its middle portion measuring Ac.0.04 decimal had been sold by him to the Plaintiff by the registered sale deed dated 14.10.09 on receipt of valuable consideration and he had delivered the possession of the same. The Plaintiff after purchase of the suit land on his move has converted its kisam to homestead by the order passed by the Competent Authority in OLR No. 72 of 2009. It is said that the land under Hal plot No. 3387 corresponding to Sabik plot No. 2891 is situated on the eastern side of the above purchase land of the Plaintiff and it belongs to the Govt. in the Irrigation Department (Defendant No. 3) and that is now the subject matter of the suit. The said land is belonging to the Defendant originally. in the Irrigation Department (Defendant No. 3) and that is now the subject matter of the suit. The said land is belonging to the Defendant originally. It being acquired by the State with other properties for the purpose of construction of canal, canal road has been running over the suit land in the direction north-south touching the main road at Jayaguru Ashram on the northern and southern sides which ultimately join at Delta Chaka. As per the case of the Plaintiff, the suit land is used as road and it is the embankment of the canal. Since the acquisition of the land Defendant No. 1 has no right, title, interest and possession of the same. The Plaintiff claims to be using the said land as road as it runs which situates just in front of their land. On 20.6.13 since the Defendant No.1 advanced false claim over the suit land that it belongs to him and threatened to make construction over the same; the suit has been filed with the relief as prayed for. 4. The Defendant No. 1 contested the suit by filing written statement; whereas the Defendant No. 2 and 3 i.e. State of Orissa and the Executive Engineer, Irrigation Department though did not file the written statement, yet contested the suit. 5. It is the case of the Defendant No. 1 that the Plaintiff is not in possession of the suit land at any point of time within 12 years next before the filing of the suit. So it is said that the Plaintiff has no cause of action to file the suit and the suit for permanent injunction simplicitor is not maintainable. It is his specific case that the land under Sabik plot No. 2891 was comprising of Ac.0.37 dec. which was his ancestral property and out of that Ac.0.30dec. of land had been acquired by the State for the purpose of laying of canal when the rest land Ac. 0.07 dec. stood partitioned amongst Defendant No. 1 and his co-sharer/s way back in the year 1968 under registered deed of partition dated 26.4.68. The Defendant No. 1 claims to have been allotted with Ac.0.06 dec. of land from out of the same when the rest land of Ac.0.01 dec. is said to have been allotted to one Narendra Nath Mohanty. stood partitioned amongst Defendant No. 1 and his co-sharer/s way back in the year 1968 under registered deed of partition dated 26.4.68. The Defendant No. 1 claims to have been allotted with Ac.0.06 dec. of land from out of the same when the rest land of Ac.0.01 dec. is said to have been allotted to one Narendra Nath Mohanty. It is his case that the land register of the land under plot No. 3387 corresponding to Sabik plot No. 289 (part) stands recorded in the name of Nrushingha Deva Marfat Surendranath Mohanty who is one of sons of Jagannath Mohanty and this Defendant No.1s father is one of the sons of said Jagannath Mohanty. 6. The Trial Court on the above rival pleading has framed five issues. Answering all the issues together since those are interlinked, upon examination of the evidence both oral and documentary let in by the parties in the touchstone of the pleading, it has been held that the Defendant No. 1 has no right to interfere upon the user of any portion of the suit land by any person and put up construction of any nature over the same. Accordingly, the suit has been decreed. 7. The Defendant No. 1 being aggrieved by the judgment and decree passed by the Trial Court carried the Appeal under section 96 of the Code. He, however, has been unsuccessful before the First Appellate Court. Perusal of the judgment of the said court reveals that faced with the rival contentions, the First Appellate court has gone to judge the sustainability of the findings rendered by the Trial Court and the ultimate result of the suit. At the end of said exercise, it has held the suit as liable to be dismissed and therefore, the judgment and decree passed by the Trial Court have been confirmed. 8. Learned counsel for the Appellant submitted that the Lower Appellate Court is not at all justified in holding that the evidence on record reveal that the canal road is being used as a public road and the findings on that score are wholly perverse as the same is based of no evidence. He further submitted that the courts below ought not have invented a third case for granting the relief sought for by the Plaintiff and the Lower Appellate Court has also committed grave error by accepting the notification of the Govt. He further submitted that the courts below ought not have invented a third case for granting the relief sought for by the Plaintiff and the Lower Appellate Court has also committed grave error by accepting the notification of the Govt. dated 27.12.68 in the Department of Revenue and taking the same into consideration. According to him, above are the substantial questions of law which arise in the case for being answered. 9. Keeping in view the submissions made, I have carefully gone through the judgments passed by the courts below in the exercise of ascertaining as to if any substantial question of law surfaces in this case, standing to be answered. The unsuccessful Defendant No. 1 was the Appellant before the First Appellate Court and the Appellant before this Court. The Trial Court on the obtained evidence has accepted the case of the Plaintiffs that the suit land is abutting their land which they had purchased from Bipin Bihari Pattnaik by registered sale deed dated 14.10.2009 and that the canal embankment lies to the further east of the purchased land. There is no dispute as to the ownership and possession of the land by the Plaintiffs under hal plot No. 3388 extending to Ac.0.04 dec. on the middle portion of the land measuring in total 0.14 decimals. It could not have also been so disputed as this Defendant No. 1 is himself a witness to the said sale deed which certainly touches upon his proprietary interest leading to drawal of presumption as to his knowledge to the contents of the document in question. . It is the case of the Defendant No. 1 that out of Ac.0.37 dec. of land, the State has acquired Ac.0.30 dec. and he under partition deed has got Ac.0.06 dec. from out of residue of Ac.0.07 dec.. The Plaintiffs have specifically stated that Ac.0.07 dec. has also been acquired by the Irrigation Department. The notification to that effect having been filed before the learned Appellate Court, it has been taken note of. of land, the State has acquired Ac.0.30 dec. and he under partition deed has got Ac.0.06 dec. from out of residue of Ac.0.07 dec.. The Plaintiffs have specifically stated that Ac.0.07 dec. has also been acquired by the Irrigation Department. The notification to that effect having been filed before the learned Appellate Court, it has been taken note of. This Court finds that in t he absence of any challenge to its genuineness or authenticity, the acceptance of the same could not have been refused under any circumstance as that is a public document and practically, there was no scope to lead rebuttal evidence as to said factual aspect as that disputed fact from the said notification itself stood conclusive enough for being accepted. So the First Appellate Court in my view did commit no mistake in doing that. The notification being accepted, the case of the Defendant as to his ownership of the said land is cut through and through at the root itself. Under such circumstances, the finding of the Lower Appellate Court that said suit land appertaining to hal plot No. 3387 corresponding to sabik plot No. 2891 standing recorded in the name of Irrigation Department is being used as public road is viewed as unassailable both on fact and law. Accordingly, the findings entitling the Plaintiffs to the reliefs as have been granted are found to be well in order. Accordingly, the submissions of the learned counsel for the Appellant fail. 10. For the aforesaid discussion and reasons, this Court finds that no substantial question of law arises in this case meriting admission of this Appeal. 11. Accordingly, the Appeal stands dismissed. No order as to cost. 12. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Courts website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Courts Notice No.4587, dated 25th March, 2020 as modified by Courts Notice No.4798, dated 15th April, 2021.