JUDGMENT : Heard Mr. K. Tari learned counsel for the appellant and Ms. T. Jini learned counsel for the respondent no.1. Respondents No.2. Respondent No.3 have not entered any appearance though notice served upon them was completed. 2. This is a Regular First Appeal directed against the Judgment and decree dated 28.01.2019 passed by the learned Civil Judge (senior Division), West Siang District, Aalo in Title Suit No. 03 of 2016. 3. Facts of the case in a nutshell is that the plaintiff/appellant herein filed a Title Suit No. 03/2016 against the defendants/respondents, for declaration of title, rights and interest over the suit land measuring 5565 Square feet (8 meter in breadth and 100 meter in length) and another adjoining land measuring 4320 square feet (80 feet in breadth and 54 feet in length) located at market area, Likabali. The Respondents/defendants have filed their respective written statements in defense of the case. On the basis of the rival pleadings of the parties, the learned court of Court framed as many as 6 (six) issues as follows : 1. Whether the suit is maintainable in its present form and context? 2. Whether the plaintiff has acquired the landed property measuring about 5565 square feet and 4320 square feet of land situated at Likabali, described in the schedule since 1960 and was peaceful possession till 2013? 3. Whether the plaintiff has constructed any structure (grocery Shop) over their suit land and was in possession of the same till the year 2013? 4. Whether the plaintiff has got right, title, interest and ownership over the suit land? 5. Whether the plaintiff is entitled to decree as prayed for? 6. To what other relief or reliefs the parties are entitled for. 4. 4. Whether the plaintiff has got right, title, interest and ownership over the suit land? 5. Whether the plaintiff is entitled to decree as prayed for? 6. To what other relief or reliefs the parties are entitled for. 4. That, after framing of issues the Appellant/Plaintiff adduced as many as 9 (nine) witnesses and 20 (twenty documents were Exhibited and the defendant/respondent No.1 adduced as many as 4 (four) witnesses, Thereafter, upon hearing the counsel for the parties concerned, the learned trial court below has, by the impugned Judgment and Decree dated 28.01.2019, partly decreed in favour of appellant/plaintiff declaring inter alia that appellant/plaintiff is the actual owner in respect of land measuring 4320 square feet and partly decreed against the appellant/plaintiff in respect of land measuring 5565 square feet at Likabali market area, thereby declaring that the appellant/plaintiff had never acquired or possessed the land which is the Lipu Link road. Hence, on being aggrieved and dissatisfied with the said Judgment and the partly decreed dated 28.01.2016, the appellant have filed the present appeal. 5. Mr. K. Tari learned counsel for the appellant submits that the learned trial court below has failed to properly appreciate the evidence on record in not finding that the preponderance of evidence and probability was in favour of the Appellant/Plaintiff and erroneously decided the Issue No.2, by holding that the plaintiff had never acquired or possessed the land measuring 5565 sq feet (8 meter by 212 feet) which is the Lipu Link Road. Whereas evidences of the appellant/plaintiff proved that the plaintiff has acquired and possessed said land since 1960. The affidavit dated 22.09.1992, by the plaintiff/appellant, declared himself as owner and possessor of a plot of land,he possessed the land measuring 5565 square feet at Likabali market area since 1960 anda road was being constructed by the appellant/plaintiff for his personal convenience, however, the learned court below had declared/decreed that said suit land was Lipu Link road in absence of any documentary evidence.That, the learned court below ought to have drawn a presumption of title in favour of the appellant/plaintiff, who are admittedly-in possession of the said disputed land, on the basis of the doctrines of possession follows title as contemplated under section 110 of the Evidence Act. 6. 6. The learned counsel for the plaintiff appellant further submits that the learned court below had failed to appreciate the plaintiffs’ evidence wherein in the sketch map Exhibit No.2 prepared by the Junior Engineer PWD and counter signed by the General Secretary of Likabali Market and MLA, and the paper exhibit No. 7 which is Keba report dated 31.05.2013. The sketch map Exhibit No.2 showing that the A and B land belongs to the appellant/plaintiff and Keba the report (exhibited no.7) are relevant to prove the fact that the appellant/plaintiff is in possession of the disputed land for more than 50 years. The learned court below has completely ignored the pleadings of the parties and the evidences of appellant/plaintiff, more particularly PW3 who deposed that the appellant/plaintiff is the actual owner of suit lands. He being an Ex-ASM (Anchal Samiti member) deposed that the suit land (5565 square feet) was never included under the panchayati territorial jurisdiction, the suit land was never maintained/renovated or under any purported panchayat scheme rather it was the plaintiff who maintained and possessed the suit land since time immemorial and for his personal usage. That further, PW-3 had also deposed that he being the then President of Lipu Village Welfare Committee and on being accompanied by General Secretary of Lipu Village Welfare committee had also jointly certified vide certificate dated 26-8-2013 (exhibit 13) that the suit land absolutely belongs to the plaintiff and same does not falls under the jurisdiction of Lipu village or Lipu link road. 7. The learned counsel for the plaintiff/appellant further submits that the learned court below had failed to apprise the depositions of the PWs who had all deposed that suit land (5565 squarefeet) was under the occupation of the plaintiff/appellant and under his possession back in the year 2000.That the defendant No. 1 claimed himself to be the actual owner of the suit land and he had accordingly donated the suit land to the Lipu village for a link road, but, during the trial the defendant had not exhibited a single document to corroborate his purported claim and thus in such circumstance declaring the suit land to be a village Link road by the learned court below is not tenable. That the appellant/plaintiff acquired the suit land (5565 Sq.feet) in the year 1960 and the appellant/plaintiff has constructed a Ghumti in 1980, he was in possession of said Ghumti for more than 33 years till 2013 when he was asked to dismantle it without having an opportunity to be heard by the Deputy Commissioner. The the impugned judgment is itself contradictory because the Lipu village was declared only in the year 1992. It was established that the appellant/plaintiff used the suit land as a personal link road for his sole convenience and it is still being used without any disturbance on the rural link road. 8. The learned counsel for the appellant also submits that the defendants have not claimed that the suit land was a public road nor have the villagers made any claim that the suit land was a public road and, however learned Civil Judge (senior Division) had erroneously decided the issue out of pleadings inasmuch as without framing an issue pertaining to the question of easement rights upon the suit land (5565 square feet).That the impugned judgment and decree dated 28-1-2019 is not tenable and same is liable to be dismissed. 9. The learned counsel for the plaintiff/appellant has relied in the case of Duryodhan Samal & Others vs. Padma Charan Biswal & Others reported in (1996) AIR (Orissa) 47 para 11 which has held as follows: “11. In the instant case, taking into account the situation of the respective houses of the parties, the village road and other relative positions and further keeping in view the proved fact that the disputed lands are the front courtyard of the plaintiffs and the same is used by other persons of the village as well as both the parties, there can be no presumption that the land is used as of right. The defendant claims for having acquired a prescriptive right of easement of way on the disputed land for the beneficial enjoyment of his own tenament and in order to go to the public road using the disputed lands. The evidence is clear that such user is not exclusive to him. It is also used by some other persons of the village including the parties. If we keep in view the principles decided by this Court in the case of Khandeswar Champati and Others Vs. The evidence is clear that such user is not exclusive to him. It is also used by some other persons of the village including the parties. If we keep in view the principles decided by this Court in the case of Khandeswar Champati and Others Vs. Gokulananda Jena and Others, in the present case neither the right is claimed as a customary right by some of the inhabitants of the particular village nor such a right is claimed by the public at large which can be acquired only by dedication. In the peculiar facts and circumstances of the case, it would not be proper to hold that the defendant's user of the disputed land along with others in the manner admitted by him can be said to be the user of the defendant as of right. Rather, it makes out a case of permissive possession so far as it relates to the case of the defendant alone and more appropriately an implied permission since there is no direct proof of any such permission.” 10. Ms. T. Jini learned counsel for the respondent no.1 on the other hand submits that in the sketch map of the land exhibited as Exhibit No.2 prepared by the Surveyor, PWD and counter signed by the General Secretary of Likabali Market and a MLA was prepared by him in the year 1991-1992 which also showed the portion of land belonging to the respondents 2 and 3 were the portion of land which was gifted to them by the defendant/respondent no.1, this document depicts that the suit land (5565 square feet) lies within the land of the plaintiff. That the said plot of land was donated by the defendant no.1 as Lipu Village Link road and the plaintiff/appellant had no right to claim this land. The surveyor, PWD has admitted that this sketch was not a legal document. That the Keba decision dated 03.08.2013 and 29.08.2015 was signed by both the parties which decided that the defendant no.1 had donated the suit land of 5565 Sq. feet for the Lipu Village Linkroad on the request of the villagers. The Indian Easement Act and Section 25 of the Limitation Act 1963 provides that if there has been a peaceable enjoyment without interruption for 20 years and in such a case the use of way shall be absolute. feet for the Lipu Village Linkroad on the request of the villagers. The Indian Easement Act and Section 25 of the Limitation Act 1963 provides that if there has been a peaceable enjoyment without interruption for 20 years and in such a case the use of way shall be absolute. That the suit land (5565 square feet) which is the Lipu village road has been used by the plaintiff/defendant and the public of Lipu village since 1960. 11. Having heard the submission of the learned counsels for both the parties, the court finds that it need not look into that part of the decreed with regard to the suit land of 4320 square feet situated at Likabali which was decided in favour of the plaintiff appellant. The only point for consideration in this appeal is whether the learned court below had failed to appreciate the plaintiff evidence and decreed that the suit land of 5565 square feet did not belong to the plaintiff/appellant but that it was a Lipu link road used by the villagers. 12. It is seen from the statements of the witnesses that the dispute over the suit land has been pending for a long time. The matter was first taken up at the Bango level Keba on 21.09.1993,10.03.1998 and 25.01.2005 wherein the matter was decided in favour of the Plaintiff/Appellant, however in 03.08.2013 and 29.08.2015 the matter was decided against the plaintiff/appellant by holding that the suit land was donated by the defendant No.1 for the Lipu village link road. Pw1 is the plaintiff who has deposed how he had been in possession of the suit land of 5565 Sq. feet since 1960 and how he has been maintaining the road since it belonged to him though it was also used by the villagers. He stated that he had constructed a shop(Gumti) on the land in 1980 and dismantled it in 2013 on the wrongful orders of the DC. Pw2 is the son of PW1 who has constructed a house over the suit land measuring 4320 sq. feet which was decreed in their favour. 13. He stated that he had constructed a shop(Gumti) on the land in 1980 and dismantled it in 2013 on the wrongful orders of the DC. Pw2 is the son of PW1 who has constructed a house over the suit land measuring 4320 sq. feet which was decreed in their favour. 13. The plaintiff/appellant had exhibited Exhibit P-2 which showed that the plaintiff possessed the suit land when the survey was done in the year 1991-1992 by the surveyor PWD, the surveyor deposed as PW-6 he stated that it Exhibit-2 was not a legal document since he was not authorised by any official and he had not prepared the sketch in his official capacity. Though he has admitted during his examination that the signatures of the Defendants was not taken on the sketch map demarcating their land, the content and correctness of the demarcation was not questioned. 14. Plaintiff witness no3. was the President of Lipu Village Welfare Committee and he has not claimed that the suit land of 5565 Sq.feet was the Lipu link road. He deposed that the appellant/plaintiff was the actual owner of suit lands and that he being an Ex-ASM (Anchal Samiti member) deposed that the suit land (5565 square feet) was never included under the Panchayati territorial jurisdiction and the suit land was never maintained/renovated under any purported panchayat scheme. It was the plaintiff who maintained and possessed the suit land since time immemorial and for his personal usage. PW-3 had also deposed that he being the then President of Lipu Village Welfare Committee and on being accompanied by General Secretary of Lipu Village Welfare committee had jointly certified vide certificate dated 26-8-2013 (exhibit 13) that the suit land absolutely belongs to the plaintiff and same does not falls under the jurisdiction of Lipu village or Lipu link road. 15. PW-4, deposed that in the year in between 2007-2008 the plaintiff/appellant approached him for dumping of sand and soils upon the suit land (5565 square feet) and accordingly, he dumped sand and soils upon the suit land which was in possession and occupation of plaintiff/appellant and the suit land it was totally maintained by the plaintiff. The other PWs are the government servants who deposed regarding the decision of the keba on 21.09.1993, 10.03.1998 and 25.01.2005. 16. The other PWs are the government servants who deposed regarding the decision of the keba on 21.09.1993, 10.03.1998 and 25.01.2005. 16. On examination of the statements of the defendant witnesses Dw 1 who had stated that he had donated the suit land (5565 square feet) in the year 1980 for construction of work. He has also stated that since he was not residing in the village he did not have much knowledge of the Keba sittings though he was present in the Keba meeting in the year 2013 where he had not filed any complain but a complaint was filed by defendant No.2 and 3. He did not have any documents to show that he had donated the suit land for Lipu Link road. DW 2 and DW3 are the defendants no.2 and defendant No.3. They have both deposed that they attended the Bango Level Keba on 29/08/2015 wherein it was decided that the defendant no.1 had donated the suit land (5565 square feet) for Lipu Link road and the plaintiff/appellant should not block the road. 17. Dw 4 is one of the members who had attended the Banga level Keba dated 29/08/2015. He stated that the Keba members examined he witnesses and came to a decision that the Lipu Link road was donated by the defendant No.1 and that the plaintiff had no right to block the road and that he shall no right to claim back the road. He had also stated that in the year 1980 the defendant No1 had donated the link road and in 1983 a mass social service was conducted by self help group of Lipu village and during that time the Lipu Link road was extended and modified. He has however, on cross examination, stated that the road for which they conducted social service in the year 1983 was a different road and not the road in the disputed area. 18. On considering the evidence adduced by both the parties in the trial court, I find that from the evidence adduced by plaintiff/appellant in the trial court, there are sufficient grounds to conclude that the preponderance of evidence and probability was in favour of the Appellant/Plaintiff. 18. On considering the evidence adduced by both the parties in the trial court, I find that from the evidence adduced by plaintiff/appellant in the trial court, there are sufficient grounds to conclude that the preponderance of evidence and probability was in favour of the Appellant/Plaintiff. The plaintiff in his examination in chief mentioned that the suit land was occupied by him in 1960, he has been in possession of the suit land ever since, it is made out from the plaintiff witnesses that he has been maintaining the suit land (5565 square feet) and though it was also used by the villagers, there is no evidence to show that the villagers had taking part in the maintenance of the road, the decisions of the Keba meetings held on 21.09.1993, 10.03.1998 and 25.01.2005 have been produced in evidence which were all in favour of the plaintiff/appellant. It is not disputed that he had a shop (Gumti) on the suit land in 1980 which he dismantled only in 2013. The contents of the sketch map of the disputed suit land exhibited in the court, showing that the suit land (5565 sq. feet) belonged to the ‘plaintiff/applicant, was not disputed during cross examination. Pw3 who was the Ex-ASM (Anchal Samiti member) had categorically stated that the suit land (5565 square feet) was never included under the Panchayati territorial jurisdiction and this statement was not refuted by the defendants. No documents or witness was produced by the defendants to substantiate their claim that the defendant no.1/Respondent No.1 had gifted the suit land for the purpose of Lipu village Link road in the trial court. 19. In view of the above findings, the court is of the considered view that the appellant/plaintiff has proved his ownership right over the suit land and this court finds it fit to partially set aside and quash the impugned Judgement and degree dated 28.01.2019 passed by the learned Civil judge (senior Division), West Siang District with regards to the finding that the plaintiff had no title or ownership right over the plot of land measuring 5565 Sq. feet (8 meter in breadth and 212 feet in length) as the same is the Lipu Village Link Road connecting BRTF road only. 20. Accordingly RFA No. 06(AP) 2019 stands allowed and disposed of.