Hikmat Saha & Another vs Raso Saha

D. Dash, J

The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short ‘the Code’) seek to assail the judgment and

decree passed by the learned District Judge, Jajpur in RFA No.27 of 2010.

By the said judgment and decree, the First Appellate Court has set aside the judgment and decree passed by the Trial Court in dismissing the suit. The

First Appellate Court having allowed the Appeal in part has restrained these Appellants permanently from making any construction over the suit land

and cause any obstruction in its user as passage with further direction to remove the brick wall and fence constructed thereon the said suit land. When

the unsuccessful plaintiff had carried the First Appeal now, this Second Appeal has been filed by the Defendants who have suffered from the

judgment and decree passed by the First Appellate Court.

In order to bring in clarity and avoid confusion; the parties hereinafter have been referred to as per their position assigned as would have been so

assigned had the event taken place during suit.

The Plaintiff’s case is that the suit land stands jointly recorded in his name as also others including Defendant No.1. Plaintiffs admitted that

Defendant No.1 was the original recorded owner of the said plot of land and he sold the land from out of that plot to the extent of 10 Biswa and 14

Gandas to the Plaintiff and others vide registered sale-deed No.354 dated 18.02.1986; admitted in evidence and marked Ext.3. It is stated that this part

of the sold land is situated towards Eastern side. It is the further case of the Plaintiff that he with other purchasers have been using the suit land as

passage to approach the public road that exists towards the Southern of the suit plot. In support of the same, the plaintiff had pleaded one more point

that on the same day, the Plaintiff also sold an area of Ac.0.01 decimals 5 Biswa and 5 Gandas of land out of that suit Plot No.296 by registered sale-

deed to his wife-Defendant No.2 which has been admitted in evidence and marked as Ext.4. According to the Plaintiff, the land under Plot

No.296/1039 is a private road for user of the Plaintiff, Defendant No.1 and others who were tenants of the land under the Hal ROR; wherein the

kisam of the land also finds mention as ‘Road’ and the portion has been so carved out in the village map, Ext.A. It is stated that he has the

houses on 292, 293 situated on the northern side of the suit land which leads to the village road on its southern end. It is his case that they are using the

suit land to approach the village road from their respective houses and that is the only passage for ingress and egress to their dwelling houses. It is

alleged that Defendant No.2, in collusion with Defendant No.1, keeping on eye over the property and somehow to mount pressure upon the Plaintiff

and others and coerce them raised a brick wall on northern end of the passage causing great hardship and to their utter disadvantage and for that

Plaintiff has been compelled to file the Suit for permanent injunction. It is also stated that during pendency of the Suit, the brick wall was also put up

further on the northern end of the suit plot, the Defendant No.1 further made constructions over there causing further obstructions in the user of the

suit land as passage.

The Defendants in their joint written statement have admitted that the suit land was a part of the land under Plot No.296 and was recorded as

‘Ghoroi Rasta’ (Private Road) in the name of Defendant No.1 the Hal ROR. According to them, this was the part and parcel of the homestead

land under Plot No.295 consisting Ac.0.04 decimals under Gharabari kisam; whereas land under Plot No.294 measuring Ac.0.05 decimals is a Tank/

Gadia. It is further stated that the Title Suit No.265/1987 filed by the other co-sharers of the Plaintiffs for permanent injunction and correction of the

ROR having been withdrawn, thereafter the Defendant No.1 filed T.S. No.05 of 1988 where the land under Plot No.296 has been declared as

exclusive land of Defendant No.1 with further declaration that the recording of the same as under private passage category or kisam is illegal. These

Defendants have denied that the Defendant No.1 had sold the land to the Plaintiff and others through registered sale-deed dated 18.02.1986. In so far

as the land under Plot No.296 towards the eastern side are concerned, they also deny the Plaintiff and other purchasers using the said land as passage

to approach the public road existing towards southern side of the suit plot and also deny to have sold same area of land under that Plot No.296 to the

Defendant No.2. According to the case of the Defendant No.2, there was neither any sale nor delivery of possession of the land as pleaded. They

state that the sale-deed if any are illegal and void.

The Trial Court, on the above rival pleadings, has settled seven issues. On going through the evidence and upon their analysis, it has answered

important issues as to the entitlement of the Plaintiff to the relief permanent injunction as well as mandatory injunction as prayed.

The said answers are based upon the conclusions as can be seen from the discussions made which for better appreciation are reproduced below:-

“7. In this case the plaintiff’s claim is that the suit land is a road and used by the plaintiff along with other purchasers like Matto Saha (his brother), Sahara Biwi

and Sayed Hazmat Saha along with the defendants jointly. According to the defendant the plaintiff cannot raise this point as this issue is hit under the provision of

Rs Judicata and law of estoppels. Learned counsel for the defendant argued that the other co-sharers filed the T.S. No.265/87 against the present Deft.no.1 and same

was dismissed as withdrawn U/o.23, R-1 CPC receiving the right to file a fresh suit. In the said suit vide Misc. Case No.267/87 the prayer of the plaintiff for injunction

against present defendant was dismissed. The plaintiff in that suit have not brought any fresh suit. So the present plaintiff who is the brother of one of the plaintiffs

in that suit and claims the same right under the same colour of title this issue is hit by law of estoppels and hit under section 11 of the CPC.

The present plaintiff was not a party to the suit, that suit was not decided on merit. The order passed in the Misc. Case No.267/87 while dispossessing a petition U/o.

39, R-1 & 2 CPC (Ext. B) culminates with the final decision of the suit. The suit was dismissed as withdrawn, reserving the right to fresh suit as per Ext.C. So without

any hesitation it can be said that this issue was neither finally adjudicated in the former suit nor the present plaintiff was a party to that suit. Hence the argument of

the ld. Counsel of the plaintiff that the suit is hit U/s.11 of the CPC and barred by law of estoppels has got no force this issue is accordingly answered in favour of the

plaintiff.

According to the plaintiff the recorded tenants of the suit land use the same as road to approach the village road situates on the southern side and the same is the

only road for the plaintiff. At the outset, it is mentioned here that neither the plaintiff has averred nor sought any relief of passage by prescription i.e. the plaintiff has

not asked for any right of easement but the plaintiff’s claim is based on his title which he acquired through RSD under Ext.3. As per Ext.3 the kissam of the suit

land is Gharoi Rasta. Ext.3 is the mutation ROR which is prepared at the instance of the plaintiff in Mutation Case No.1198/90 the said plot is carved out from the

original plot No.296 under Khata No.258 which was recorded in the name of Deft. no.1 and the kissam was Gharoi Rasta. Def. No.1 had instituted TS 5/88 before the

Court of Munsif, Jagatsinghpur against the State and in the said suit it was declared that the kissam of the suit land as recorded in the ROR is illegal and it is also

observed that the def.no.1 is using a small portion from out of the 6 dec. of plot as his private road but not the entire land. The village map prepared in the major

settlement operation under Ext.8 as it revealed a small portion out of the 296 is shown as road and the same touches the village road. From the village map under Ext.D

and from the judgment and decree passed in TS 5/88 which was instituted by the present defendant no.1 only a definite presumption is drawn that a portion of the 6

dec. out of MS Plot no.296 is being used by the plaintiff as a private road (Gharoi Rasta). So there is no hesitation to hold that whether in this case the plaintiff has

got any right, title and interest over the suit land but it is a fact that the suit land or a part of the suit land which is a portion of original Plot No.296 is used as private

road.â€​

The unsuccessful Plaintiff thus feeling aggrieved in view of the aforesaid, ultimately leading to the dismissal of the suit has, however, has been

successful in the First Appeal carried by him.

Learned counsel for the Appellants (Defendants), placing the substantial questions of law, as involved in the case as noted in the Memorandum of

Appeal standing to be answered in the Appeal, submitted that the findings of those two important issues as have been recorded by the First Appellate

Court are based on improper appreciation of evidence both oral and documentary and therefore, the final outcome in the First Appeal in granting the

decree for permanent and mandatory injunction against the Defendants cannot be sustained. He further submitted that the Trial Court having recorded

the answers on those two issues against the Plaintiff, the First Appellate Court is not right in upsetting the same and recording in favour of the

Plaintiff. He submitted that these are the substantial questions of law which arise in the case meriting admission of the Appeal.

Admitted case stands to the effect that originally the suit land was a part of the land under M.S. Plot No.296 and that very same land standing

recorded in the name of Defendant No.1 is noted as ‘Private Road’. This Plaintiff was not a party to the Title Suit No.05 of 1988 filed by the

Defendants in whose favour it had been decreed.

The Defendants do not deny to have put up the constructions over the suit land and they claim that it was on their own land and the Plaintiff and

others have nothing to do with the same so as to feel aggrieved thereby in any way.

The Plaintiff has proved the sale-deed, Ext.3 which stands in his favour. The certified copy of the registered sale-deed executed by the Defendant

No.1 in favour of Defendant No.2 on the same day has been proved and marked Ext.4. The record of right of the land appertaining to Khata No.233

and 254 in order to show that their dwelling house are over the land under Plot No.293 of Khata No.233 and 292 of Khata No.254 have also been

proved Exts.5 and 6; more importantly, the village map has been admitted in evidence and marked Ext.A. Oral evidence has been let in by the Plaintiff

as to the user of the suit land as passage from the time of his purchase of the land. The document being a registered sale-deed it has been attacked by

the Defendants to be a sham one. However, the detail facts and circumstances in support of the said plea and surrounding the document required

under Order-6 Rule-4 of the Code have not been pleaded in the written statement. The claim appears to be vague and made just in a casual fashion.

On the guided principles of law that presumption of genuineness and due execution attached to a registered sale-deed, the assertion of the Defendants

in such a vague, general and casual manner without pleading such particular fact/s either direct or indirect and other surrounding circumstances have

to be ignored. Mere averment that the Vendor (Defendant No.1) being an innocent man, he has been defrauded is not at all enough. The Trial Court,

in the above state of affairs in the pleading and evidence, having placed the blame upon the Plaintiff in not proving the contents of the sale-deed by

leading evidence and held that he has failed to prove the title over the suit land was not at all right.

On the face of the evidence on record as to the user of the suit land as passage by the Plaintiff with others including the Defendant No.1, the First

Appellate Court, in my view has rightly rectified the grave mistake committed by the Trial Court in answering those two crucial issues. Therefore,

even though the First Appellate Court has reversed the findings of the Trial on these two issues, this Court finds all the justification and reasons to put

the seal of approval to those findings of the First Appellate Court wherein there surfaces no such illegality or infirmity which are seen to be based on

just and proper appreciation of evidence.

For the aforesaid discussion and reasons, the submission of the learned counsel for the Appellants (Defendants) that substantial questions of law are

involved in the case for being answered in this Appeal is stands repelled

Thus the Appeal does not merit admission.

Accordingly, the Appeal stands dismissed. No order as to cost.

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 Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No.4587 dated 25th March, 2020 as modified by Court’s Notice No.4798 dated 15th April, 2021.