SUSAMA RANI DHALA vs NIRUPAMA BISWAL AND ANOTHER

Dr.A.K.RATH, J.

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

The case of the plaintiff is that she purchased Ac.0.18½ dec. of land out of Ac.0.673 dec. from the middle east portion appertaining to khata

no.228, plot no.336 of mouza-Tangi, Dist-Khurda from the recorded owner by means of a registered sale deed dated 5.2.1991. Prior to that, defendant

no.1 purchased Ac.0.082 dec. of land from the extreme east of the suit plot. Defendant no.1 and her husband, defendant no.2 have constructed a

house thereon with boundary wall around it. Her land situates adjoining to the west of the boundary wall of the defendants. When she intended to

construct a house, the defendants, who have no semblance of right, title and interest, entered into the suit land and dug earth. With this factual

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

The defendants filed written statement denying the assertions made in the plaint. The specific case of the defendants is that they have constructed

a dwelling house over Ac.0.046 dec. of land out of Ac.0.082 dec.. The balance area of Ac.0.036 dec. is lying vacant. They have gathered stones in

the vacant portion of the land. They have not encroached upon the land of the plaintiff.

On the inter se pleadings of the parties, learned trial court framed five issues. Parties led evidence, oral and documentary, to substantiate their

cases. Learned trial court decreed the suit with the finding that the plaintiff has right, title, interest and possession over the land purchased by her. The

defendants have not encroached upon any portion of the land of the plaintiff. The defendants filed T.A.No.61/5 of 1997/1995 before learned District

Judge, Khurda at Bhubaneswar. Learned appellate court came to hold that neither party claimed ownership and possession of the land beyond their

purchased land. There is no trustworthy evidence that the defendants have ever created any disturbance over the suit land. Held so, it allowed the

appeal.

The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.2 (a) (b) and (d) of the appeal memo: The same

are:

“a) Whether the learned appellate court is justified in recording a finding that there is no cause of action for the plaintiff to file the present suit ?

b) Whether the learned lower appellate court is justified to dismiss the suit for permanent injunction having confirmed the findings of the trial court that

the plaintiff has the right, title and interest and possession over the suit land, i.e., the purchased land of the plaintiff ?

d) Whether the finding as recorded by the lower appellate court that excepting P.W.2 name has deposed regarding any disturbance created by the

defendants in the suit land is sustainable and perview ?â€​Â

Heard Mr.S.P.Mishra, learned Senior Advocate along with Mr.L.K.Moharana, learned Advocate for the appellant and Mr.Nilakantha Jujharsingh,

learned Advocate for the respondents.

Mr.Mishra, learned Senior Advocate for the appellant submitted that plaintiff is the owner in possession of Ac.0.18½ dec. of land. Since the

defendants created disturbance, the suit was instituted. P.W.2 categorically stated that prior to 7 to 8 months, defendant no.2 was digging earth in the

suit land. His evidence was discarded. No reason has been assigned.

Per contra, Mr.Jujharsingh, learned Advocate for the respondents submitted that neither party claimed title over the land beyond their purchased

land. The defendants had not created any disturbances over the possession of the plaintiff. Learned appellate court held that there is no evidence on

record that the defendants have created disturbances over the possession of the plaintiff. There is no perversity in the said findings.

Title of the parties with respect to their respective plots is not in dispute. The plaintiff asserts that the defendants dug earth on a portion of the suit

land. Defendants deny the same.

The defendants do not deny or dispute the title of the plaintiff over the suit land. Both the courts, on an anatomy of pleadings and evidence, held

that the defendants have not encroached upon the plaintiff’s land. These are essentially findings of fact. There is no perversity in the same. The

substantial questions of law are answered accordingly.

Resultantly, the appeal fails and is dismissed. No costs.