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2023 DIGILAW 233 (ORI)

Akshaya Kumar Majhi v. Satyanarayan Rajkua

2023-12-20

D.DASH

body2023
JUDGMENT D. Dash, J. The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dated 26.12.2022 and 05.01.2023 respectively passed by the learned Additional District Judge, Kuchinda in R.F.A. No.07 of 2017. The Respondent No.1 as the Plaintiff had filed the suit for declaration of his possessory title over the suit land and issuance of permanent injunction against the present Appellant (Defendant No.3) from entering into the suit land, constructing any house over there as also interfering in the peaceful possession of the Plaintiff over the same. The suit having been decreed, this Appellant (Defendant No.3) having suffered from the same have carried the Appeal under section-96 of the Code, which has also been dismissed. Hence, the present 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. Plaintiff's Case: - One Katsu Ranbida died had leaving behind two daughters namely, Ganga and Jamuna. Ganga and her husband died issueless. Subasini is the sister of Jamuna's husband who had died leaving behind the Plaintiff as his son. The suit land belongs to the State and stood recorded as such in the record of right. It is stated that the same was in possession of Kastu Ranbida and therefore, the Settlement Authority upon enquiry, ascertaining the possession of the field had noted the said possession of Kastu in the remark column of record of right. After death of Kastu, his two daughters Ganga and Jamuna continued to possess the suit land. Since they had no issue, they orally gifted the suit land in favour of the Subasini who is the sister of the husband of Jamuna and she is the mother of the Plaintiff. So, it is said that Subasini came to possess the suit land being so gifted and having accepted the said gift and thereafter, the Plaintiff is the possession of the same having got it from his mother. The Defendant No.3 who has no right, title, interest and possession over the suit is said to have trespassed over the same on a fine morning and for that the Plaintiff when reported the matter to the Tahasildar, Kuchinda, the local R.I. has been directed to demarcate the suit land. The Defendant No.3 who has no right, title, interest and possession over the suit is said to have trespassed over the same on a fine morning and for that the Plaintiff when reported the matter to the Tahasildar, Kuchinda, the local R.I. has been directed to demarcate the suit land. Thereafter, the encroachment proceeding was initiated against Defendant No.3 and the Plaintiff also initiated the proceeding under section-145 of the Cr.P.C., when the Defendant No.3 proceeded with construction. The Defendant No.3 since did not obey the order of restraint, the Plaintiff had to file the suit. 4. The Defendant No.2 has submitted in the written statement that the wife of the Defendant No.3 had put up unauthorized structure of the Government land and therefore, proceeding under the Orissa Prevention of Land Encroachment Act, 1972 (for short hereinafter called as "the OPLE Act') has been initiated being numbered as Encroachment Case No.32 of 2015 and therein stopping of construction, order had been passed and finally, the wife of Defendant No.3 had been directed to remove from the said encroachment and make it free or else to face legal consequence through the process of law. The Defendant No.3 did not appear in the suit and was set exparte. 5. The Trial Court on the above rival pleadings having framed in total six (6) issues, upon examination of evidence and evaluation of the same has arrived at the following findings: - (i) the illegal possession note in favour of Kastu Ranbida will not ripe into possessory title and the Plaintiff cannot acquire title by way of adverse possession over the suit land; and (ii) in view of the evidence on record, the possession of the Plaintiff having been found over the suit land, the Defendant No.3 has been found to have made trespass over the same and therefore, the Plaintiff is entitled to decree for injunction. 6. In the First Appeal filed by the Defendant No.3, these findings have been affirmed and the decree of permanent injunction against the Defendant No.3 has been confirmed. 7. The Appeal has been admitted to answer the following substantial question of law:- "Whether the Courts below accepting the pleadings of the Plaintiff remaining uncontroverted and the evidence remaining unchallenged could have gone to decree the suit granting the reliefs as prayed for against the Defendants?" 8. 7. The Appeal has been admitted to answer the following substantial question of law:- "Whether the Courts below accepting the pleadings of the Plaintiff remaining uncontroverted and the evidence remaining unchallenged could have gone to decree the suit granting the reliefs as prayed for against the Defendants?" 8. Mr.P.K. Kar, learned Counsel for the Appellant (Defendant No.3) submitted that the Courts below ought not to have passed the decree for permanent injunction as against the Defendant No.3 on the face of the pleading (W.S.) filed by the Defendant No.2 that the wife of the Defendant No.3 namely, Uma Mirdha has put up unauthorized construction over the suit land. He submitted that the Plaintiff having not proved through clear, cogent and acceptable evidence as to when the Defendant No.3 trespassed over the suit land and thereby, interfered with his possession over the suit land, the Trial Court ought not to have decreed the suit. He next submitted that it having been shown from the side of the Defendant No.2 that the wife of the Defendant No.3 has already put up certain construction over the suit land, without the prayer for recovery of possession, no decree for permanent injunction could have been passed; particularly in the factual scenario when the State has already taken steps under the special statute to drive out the Defendant No.3 and his wife from the suit land. 10. Mr. G.N. Rout, learned Additional Standing Counsel for the State-Respondent Nos.2 & 3 submitted that the land being owned by the State, when an order has already been passed in the encroachment proceeding against the wife of the Defendant No.3, the decree of permanent injunction as prayed for by the Plaintiff ought not to have been passed without a clear finding that he was in possession of the suit land for quite a long period. He also submitted that the wife of Defendant No.3 against whom the encroachment proceeding is running was a necessary party to the suit. He, therefore, urged that the suit is liable to be dismissed. 11. Mr. P.K. Nayak, learned Counsel for the Respondent No.1 submitted all in favour of the finding of the Courts below. According to him, the concurrent finding returned by the Courts below are not liable to be tinkered with by the Court in seisin of the Second Appeal, when no such perversity is shown to have been surfacing therein. 11. Mr. P.K. Nayak, learned Counsel for the Respondent No.1 submitted all in favour of the finding of the Courts below. According to him, the concurrent finding returned by the Courts below are not liable to be tinkered with by the Court in seisin of the Second Appeal, when no such perversity is shown to have been surfacing therein. He further submitted that the Plaintiff being the prior possessor has every right to protect the possession as against the trespasser like the Defendant No.3 who wanted to dispossess the Plaintiff. 12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 13. The Plaintiff asserts his possession over the suit land to have been since long with him and prior to him with her mother, as it can be seen from the averments taken in the plaint and lastly, it is said that he came to possess the suit land being so gifted by two daughters, who were having no heir and were in possession of the same, after the death of their father. The Courts below appear to have completely shut their eyes to some foundational facts. The Plaintiff simply states that Kastu Ranbida was in possession and thereafter, his two daughters Ganga and Jamuna came to possess and gifted the suit land in favour of Subasini, who happens to be the mother of the Plaintiff. It is unknown a concept in law that possession of a piece of immovable property can be gifted to another by the prior possessor. Furthermore, when it is nowhere stated that Subasini had accepted the gift and being put in possession started to possess the suit land as like the two donors namely Ganga and Jamuna, the story projected by the Plaintiff is per se not acceptable. Secondly, the admitted owner of the property in question i.e. the State being a party to the suit, in my considered view, the Courts below could not have passed a decree of permanent injunction in favour of the Plaintiff as against the Defendant No.3 alone in a split-up manner when the possessory title over the property in question as claimed by the Plaintiff has been negated. Therefore, the suit in any case is liable to be dismissed. The Courts below are thus found to have erred both on facts and law in granting the decree of permanent injunction as against the Defendant No.3 in protecting the possession of the Plaintiff over the suit land. The substantial question of law is accordingly answered against the Plaintiff. 14. Resultantly, the Appeal stands allowed. No order as to cost.