Smt.Surekha Tripathy vs Smt.Nirmala Pattnaik

Plaintiff is the appellant against a confirming judgment in a suit for permanent injunction.

The case of the plaintiff is that she is the owner in possession of the suit land. She purchased the suit land by means of a registered sale deed

no.1723 of 1968. In M.C.No.133 of 1986, the land was demarcated by the Tahasildar on 28.8.1986 in presence of the defendant and her

husband. The defendant filed an application before the Tahasildar, Berhampur for demarcation of the land. The Amin visited the spot and

demarcated the land in presence of the parties. The defendant and her husband threatened to remove the fence from the suit land. With this factual

scenario, she instituted the suit seeking the relief mentioned supra.

The defendant entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendant is that she

acquired 70 x 7 sq.ft. under the instrument dated 9.1.1976. She has not encroached upon the suit land. She is not aware of the demarcation made

by the Amin.

On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary. Learned trial court

dismissed the suit holding, inter alia, that the plaintiff has not established her title and possession over the suit land. The unsuccessful plaintiff filed

Title Appeal No.57 of 1989 before the learned District Judge, Ganjam, Berhampur. Learned appellate court came to hold that there is boundary

dispute between the parties. The plaintiff has not appended any map of the disputed property in compliance with the requirement of Order-VII

Rule 3 C.P.C., but just a sketch thereof. Held so, it dismissed the appeal.

The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.1, 3 & 4 of the appeal memo. The same are :

For that in view of the fact that the documents, under Exts.F, G and H which support the plaintiff''s case for demarcation of the suit land were

filed on behalf of the defendant and marked on consent, the contents thereof are admissible and no further proof of the same is necessary.

For that in view of the fact that P.W.1 who is the husband of the plaintiff categorically stated that the suit land measuring 12'' x 7'' 6"" is a portion

of the land purchased by the plaintiff from Champa Bedatiani under Ext.1 the finding of the learned Munsif in para-13 of his judgment to the effect

that there is no satisfactory evidence on record that the disputed property as per plaint schedule is within the land of the plaintiff purchased by her

as per Ext.1 is perverse being contrary to the evidence on record. And in such view of the matter the conclusion drawn is legally sustainable and

any other reasonable person would have come to such conclusion under the fact and circumstances of the case.

For that whether the lower appellate court having not dealt with the issues already framed in the case, the evidence on record and the points

raised in the memorandum of appeal has exercised its jurisdiction legally and properly, as conferred under the law as an appellate authority.

Heard Mr.Sidhartha Mishra, learned Advocate on behalf of Mr.B.B.Ratho, learned Senior Advocate for the appellant and Mr.Buddhiram Das,

learned Advocate on behalf of Mr.N.C.Pati, learned Advocate for the respondent.

Mr.Mishra, learned Advocate for the appellant submits that in the plaint the plaintiff has given the description of the property, which is sufficient

to identify it. Learned appellate court has not discussed the evidence, either oral or documentary. The finding of the learned appellate court that the

plaintiff has not complied with the requirement of Order 7 Rule 3 C.P.C. is perverse.

Per contra, Mr.Das, learned Advocate for the respondent submits that both the courts held that the defendant has not encroached upon any

portion of the suit land. There is no perversity in the findings of the courts below.

Order 7 Rule 3 C.P.C. postulates that where the subjectmatter of the suit is immovable property, the plaint shall contain a description of the

property sufficient to identity it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the

plaint shall specify such boundaries or numbers.

On a cursory perusal of the schedule of the plaint, it is apparent that the plaintiff has furnished the schedule of the property by assigning khata

number, plot number, area, mouza, district and the area encroached upon by the defendant along with boundary thereof. The words ""plaint shall

contain a description of the property sufficient to identify it"" connote that the plaint shall contain the schedule of the property sufficient to identify it.

Learned appellate court in para-8 of the judgment came to hold that ""though there was boundary dispute, the plaintiff in compliance with the

requirement of Order 7 Rule 3, C.P.C. had not appended any map of the disputed property but just a sketch thereof"". In the same paragraph, it

held that ""in the same she had identified the disputed strip as touching the northern most boundary line and described that the same was bounded to

the south and east by the land of the defendant. The map of Survey Plot no.106, the whole of which belongs to her, drawn in Ex.H indicates that

the eastern most boundary line of that strip running north to south is more than 70 ft. long and yet, in the plaint schedule describing the disputed plot

that lies, attached to her plaint, the land of the defendant has been shown as touching the land of the defendant though the north south length of that

boundary line as per her schedule is only 10 feet."" The judgment suffers from internal inconsistencies. The finding of the learned appellate court that

the plaintiff has not appended any map of the disputed property in compliance with the requirement of Order 7 Rule 3 of C.P.C. is perverse.

The apex Court in the case of B.V.Nagesh and another v. H.V. Sreenivasa Murthy, 2010 (13) SCC 530 held :

How regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order

41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state:

a) the points for determination;

b) the decision thereon;

c) the reasons for the decision; and

d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless

restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the appellate Court must,

therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions

put-forth, and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with

all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be

heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by

giving reasons in support of the findings. (Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 = JT (2001) 2 SC 407 and Madhukar

and others vs. Sangram and others, (2001) 4 SCC 756)

5) In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the

obligation placed on it as a first appellate Court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been

noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls

short of considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties,

we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in

accordance with law.

In Mahendranath Parida Vrs. Purnananda Parida and others, AIR 1988 Ori. 248, this Court held that when the controversy is as to

identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties can

be aware of the report of the Commissioner and can go to trial prepared.

Learned appellate court has not discussed oral or documentary evidence of the parties, but abruptly came to a conclusion. In view of the same,

the impugned judgments are set aside. The matter is remitted back to the learned trial court. It is open to the parties to adduce further evidence. In

order to avoid further delay, the parties shall appear before the learned trial court on 1st March, 2018. Learned trial court shall dispose of the suit

within a period of six months thereafter keeping in view the law laid down in Mahendranath Parida (supra).