Orissa High Court
The State Of Orissa vs Madhusudan Naik .Since Dead. Through ... on 2 February, 2018
Equivalent citations: AIRONLINE 2018 ORI 171
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.187 of 1989
From the judgment and decree dated 09.02.1989 and 27.02.1989
respectively passed by Shri B. Panigrahi, learned District Judge,
Kalahandi, Bhawanipatna in T.A. No. 09/85 confirming the judgment
and decree dated 22.01.1985 and 31.01.1985 respectively passed by
Shri A.K. Parichha, learned Sub-ordinate Judge, Bhawanipatna in T.S.
No. 29 of 1980.
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The State of Orissa .... Appellant
Versus
Madhusudan Naik (since dead)
through his L.Rs. and another .... Respondents
For Appellant ... Mr. R.P. Mohapatra, A.G.A.
For Respondents ... Mr. Tusar Kumar Mishra, Adv.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing and judgment: 02.02.2018
DR.A.K.RATH, J.Defendant no.1 is the appellant against a confirming judgment.
02. Madhusudan Naik, predecessor-in-interest of the respondent no.1 (a) to 1(h), as plaintiff instituted a suit for declaration of right, title, interest over the suit land, confirmation of possession and in the alternative for recovery of possession. The dispute pertains 2 to a tank appertaining to an area of Ac.5.79 dec. of village Bhatel in the district of Kalahandi.
03. The case of the plaintiff was that his grand-father Bhaja Gaountia excavated the suit tank in the year 1915-20 for irrigation of his land. Bhaja was in possession of the same. After death of his grand-father, his father Duryodhan was in possession of the suit tank. Thereafter he is in possession of the same. The suit tank had been recorded in the name of the State in the settlement. By mistake the suit tank was omitted from the Unnati Sadhana List of the village. Taking advantage of the wrong recording of the suit tank in the name of the State in the settlement, the Grama Panchayat, defendant no.2 claimed that the suit tank had been transferred to it by the Sub- Divisional Officer. The Grama Panchayat was not in possession of the suit tank. In the year 1970, defendant no.2 did not allow him to take water or catch fish from the tank. With this factual scenario, he instituted the suit seeking the relief mentioned supra.
04. The defendant no.1 filed a written statement denying the assertions made in the plaint. According to defendant no.1, the suit tank was excavated by Bhaja over a piece of Government land. He excavated it as a Gaountia for the communal use of the villagers. Neither plaintiff nor his ancestors were in possession of the suit tank. The suit tank belonged to the State. The same had been recorded in the name of the State in 1955-56 settlement. The State was in possession of the suit tank. In the year 1958, the Sub-Divisional Officer transferred the suit tank in favour of defendant no.2. The defendant no.2 is in possession of the suit tank. The plaintiff had no right, title and interest over the same. It was further pleaded that the suit was barred by limitation.
305. On the, inter se, pleadings of the parties, the learned trial court struck nine issues. The learned trial court came to hold that Bhaja, ancestor of the plaintiff, had excavated the suit tank. The cause of action arose in the year 1970. The suit was instituted in the year 1980. Therefore, the suit was within time. Gram Panchayat is not in possession of the suit tank. Held so, it decreed the suit. The defendant no.1 unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Kalahandi, Bhawanipatna in T.A. No. 09 of 1985, which was eventually dismissed. It is apt to state here that during pendency of the appeal, the original plaintiff died and his legal representatives were substituted.
06. The appeal was admitted on the substantial questions of law enumerated in the ground nos. B, C and F of the appeal memo. The same are:-
"(b) Whether the plaintiff having not challenged the Settlement R.O.R. of 1955-56 it was open for him to challenge the same in 1980 after a long lapse of 16 years ?
(c) Whether the finding of the learned Sub-Judge on issue no.1 as to the ownership and capacity in which the suit tank was excavated by the Gauntia can be sustained in law in view of the Ramdhyani's report and in absence of any material whatsoever on record ?
(f) Whether in view of the fact that the plaintiff was the highest bidder in 1966-67 for lease of the suit tank, the plea of possession from the time of his ancestor is available to the plaintiff and the finding of possession recorded by the learned courts below can be sustained in law ?"4
07. Heard Mr. R.P. Mohapatra, learned Additional Government Advocate and Mr. Swayambhu Mishra, learned Additional Standing Counsel for the appellant and Mr. Tusar Kumar Mishra, learned Advocate on behalf of Mr. C.R. Mishra, learned Advocate for the respondent no.1.
08. Learned counsel for the appellant submits that there is no evidence on record that Bhaja excavated the tank over his land. The R.O.R. was published in the year 1955 in the name of State. The cause of action arose in the said year. The suit was instituted in the year 1980. Though the plaintiff asserts that the cause of action arose in the year 1980, but the same is a myth. He further submits that the plaintiff took the plea that he was a minor when R.O.R. published in the year 1955. Plaintiff was 47 years at the time of institution of the suit. Thus he was born in the year 1933. By the time R.O.R. published in the year 1955, he was 25 years. He was not a minor. Under Article 58 of the Limitation Act, the period of limitation is three years to obtain any other declaration, when the right to sue first accrues. The suit was barred by time. Both the courts below committed a manifest illegality and impropriety in relying on Ext.3.
09. Per contra, Mr. Mishra, learned Advocate for the respondent no.1 submits that Bhaja was the Gaountia of the village. He excavated the tank in the year 1915-20. He was in possession of the suit tank. After him, the plaintiff was in possession of the suit tank. The suit tank had not been transferred to the Grama Panchayat at any point of time. The certified copy of the Unnati Sadhana List of the village Bhatel vide Ext.3 shows that Bhaja excavated the tank by spending money. Both the courts concurrently held that the plaintiff is the rightful owner in possession of the suit tank. There is no perversity in the findings of the courts below. He further submits that the 5 plaintiff was a minor when the R.O.R. was published in the year 1955. The cause of action arose in the year 1980. The suit was filed within the prescribed period of limitation.
10. In Mt. Bolo vs. Mt. Koklan and others, AIR 1930 P.C. 270, the apex Court held that there can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
11. The apex Court in the case of Daya Singh and another vs. Gurdev Singh (Dead) By LRs. and others, (2010) 2 SCC 194 placing reliance in the case of C. Mohammad Yunus vs. Syed Unnissa and others, AIR 1961 SC 808, held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, mere existence of an adverse entry into the revenue record cannot give rise to cause of action.
12. The suit was instituted in the year 1980. The plaintiff was 47 years. He was born in the year 1933. The R.O.R. was published in the year 1955. The plaintiffs assert that the defendant no.2 did not allow him to take water from the tank or catch fish in the year, 1970. The cause of action arose in the year, 1970. Under Article 58 of the Limitation Act, the period of limitation is three years to obtain any other declaration, when the right to sue first accrues. The right to sue accrued in the year 1970. Thus the suit was clearly barred by limitation.
13. There is neither any pleading nor evidence on record that Bhaja excavated the tank on his land. The learned appellate court held that Gounti system was abolished by the Press note dated 6 02.02.1956. Reliance placed on Ext.3 is totally misplaced. Ext.3 is a certified copy of the Unnati Sadhana List of the village Bhatel. Ext.3 shows that Bhaja had only improved the tank. Plaintiff failed to prove the title over the suit tank. After abolition of the Gounti system, the suit tank vested into the State free from all encumbrances. The same had not been settled in favour of Bhaja. There is no finding of the courts below that Bhaja had excavated the tank on his own land. Thus the inescapable conclusion is that the State is the paramount owner of the tank in question. The same has been transferred to the Grama Panchayat. The learned appellate court did not delve into the matter and came to an abrupt conclusion that the plaintiff is the rightful owner in possession of the suit tank.
14. The suit tank has been recorded in the name of the State in the R.O.R. In the case of Shri Raja Durga Singh of Solon Vrs. Tholu and others, AIR 1963 SC 361, the apex Court held that where a new entry is substituted for an old one it is that new entry which will take the place of old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry. The substantial questions are answered accordingly.
15. A priori, the impugned judgments are set aside. The appeal is allowed. Consequentially, the suit is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 2nd February, 2018/Puspanjali