Angira Mishra vs Smt. Rasmita Hota & Others

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.

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.

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. 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.

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. 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.

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.

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.

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.

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).

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. 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.

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.

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.

The Appeal is accordingly dismissed. However, in the peculiar facts and circumstances, no order as to cost is passed.