Orissa High Court
Dandapani Sahu vs Budhuram Lohar And After Him Smt. ... on 10 January, 2007
Author: R.N. Biswal
Bench: R.N. Biswal
JUDGMENT R.N. Biswal, J.
1. This Second Appeal is on behalf of the plaintiff.
2. As per the plaint, the plaintiff came to Rourkela in January, 1956 and occupied Ac. 0.5 decs, and Ac. 0.5.1/2 decs, of land out of plot No. 411 and 412 respectively of mouza-Mahulpali, as the same were lying vacant then. He constructed three huts contiguously over an area measuring Ac. 0.01.1/2 decs, appertaining to plot No. 411 and fenced the remaining portion of the said plot and the entire plot No. 412 with AMARI bush and utilized the same as Bari and cowshed. He had been possessing the said land peacefully, openly and exclusively as a matter of right till 1971 when the defendant forcibly dispossessed him out o an area of 41' X 30' of land described in detail in the plaint schedule. So he was compelled to initiate a proceeding under Section 145 of Cr.P.C. vide Criminal Misc. Case No. 137 of 1971 in the Court of Sri P. K. Jena, Magistrate First Class, Panposh at Uditnagar against the defendant wherein possession was declared in favour of the latter. The defendant is a stranger to the property and was never in possession of the said land, whereas the possession of the plaintiff matured to title. Hence he filed Title Suit No. 26 of 1972 in the Court of the Munsif, Panposh with prayer for declaration of his title and possession over the suit land, as described in the schedule of the plaint, recovery of possession of the same and for declaration that the order passed in Criminal Misc. Case No. 137 of 1971 is not binding on him.
3. Though summons were served on the defendant, he did not enter appearance before the trial Court and as such he was set ex parte on 24.11.1972. On 17.1.1973 the plaintiff examined himself as P.W.1 and one Simadri as P.W.2. After assessing their evidence and other documentary evidence the trial Court dismissed the suit on the same day. Plaintiff preferred Title Appeal No. 9 of 1973 before the Sub-Judge, Rourkela against the said order of dismissal which was allowed ex parte. An application for amendment of the plaint filed by the plaintiff in the said appeal was also allowed in absence of the Respondent. Misc. Case No. 18 of 1974 filed on behalf of the defendant before the first appellate Court to set aside the appellate ex parte decree having been dismissed on 3.7.1975, the defendant-respondent preferred M.A. No. 119 of 1975 before this Court wherein this Court set aside the ex parte appellate decree and remanded the matter to hear the appeal afresh. The first appellate Court allowed Title Appeal No. 9 of 1973 vide order dated 6.7.1977. The defendant-Respondent challenged the said order before this Court in Second Appeal No. 250 of 1977, which on being allowed on 12.12.1978 the matter was remanded back with direction to dispose of the amendment application on hearing both parties once again before hearing the appeal on merit.
4. The defendant-Respondent in his written statement, filed before the first appellate Court in Title Appeal No. 9 of 1973 on 7.4.1979 contended that Nabaghana Palei, Govinda Sahu and one Bisoi had constructed the three huts over plot No. 411 and resided there. In or about the year 1971 plaintiff purchased the two huts belonging to, Govinda Sahu and Nabaghana Palei and possessed the same. Defendant raised a temporary structure over 41' X 30' of land out of sabik plot Nos. 411 and 412 and used the same as cowshed and store house of manure. The portion of land over which the defendant constructed his house along with the land over which he raised the structure for storing manure and the remaining portion of plot No. 412 being renumbered as plot No. 1027 was recorded in his name in the current settlement. The rest portion of plot No. 411 having been re-numbered as plot No. 1027/1247 was recoded in the name of one Baidyanath Ganguly with note of possession in favour of defendant. In the year 1970 defendant demolished the kutcha house which was being used as cowshed and constructed a pucca house over it. When the construction reached the roof level, (he plaintiff with an evil design and ill motive filed 1 C.C. Case No. 3 of 1971 and Criminal Misc. Case No. 137/1 of 1971 which however ended in favour of the defendant. It is the specific case of the defendant that the plaintiff was never in possession of the suit land or any portion thereof at any point of time. He further pleaded that the description of the suit land was not specific. Under such premises he pressed to dismiss the suit.
5. Pursuant to the order dated 12.12.1978 of this Court in Second Appeal No. 250 of 1977 the first appellate Court first heard on the amendment petition and allowed it. It also allowed the appeal and remanded back the suit to the trial Court for fresh disposal with a direction to frame issues arising out of the pleadings of both parties and give opportunity to both of them to adduce necessary evidence both oral and documentary. Accordingly, on 5.9.1983 plaintiff was examined as P.W.1 and one Bhaskar Patnaik as P.W.2 before the trial Court. Similarly on 12.9.1983 Budhiram Mistry, the original defendant, examined himself as D.W.1, besides examining one Abhayapada Banarjee as D.W.2. The defendant also filed some documents which were marked as Exts. A, B, C and D. After assessing the evidence, the trial Court dismissed Title Suit No. 26 of 1972 on 21.9.1983 on the ground that the suit land was not specific. Plaintiff preferred Title Appeal No. 7 of 1983 against the said order of dismissal before the Sub-Judge, Rourkela who on 3.3.1984 allowed the appeal and remanded the matter to the trial Court for fresh disposal on merit after giving the plaintiff adequate opportunity to adduce evidence specifying the suit property and also to allow the defendant to lead evidence on that score. Accordingly on 22.1.1985 the plaintiff examined himself as P.W.1, besides examining Udayanath Swain on 23.1.1985 as P.W.2. On 6.2.1985 Budhiram Mistry (defendant) was examined as D.W.1. After hearing the counsel for the parties, the trial Court dismissed the suit on 26.2.1985, against which plaintiff preferred Title Appeal No. 2 of 1985 before the first appellate Court. The Title Appeal having been dismissed, he preferred the present Second Appeal wherein the following two substantial questions of law have been framed:
(1) Whether non-consideration of the evidence of Bhaskar Patnaik who was examined by the plaintiff before remand shall vitiate the judgment ?; and (2) Whether plaintiff's suit can be decreed on the basis of possessory title ?
6. Learned Counsel appearing for the appellant submitted that the trial Court as well as the appellate Court did not consider the evidence of Bhaskar Patnaik examined on behalf of the plaintiff on 5.9.1983. So the judgment of the trial Court as well as the appellate Court should be vitiated on that ground alone. As discussed earlier, the plaintiff was examined as P.W.1 and one Simadri as P.W.2 on 17.1.1973. The first appellate Court while remanding Title Appeal No. 9 of 1973 on 3.9.1979 directed the trial Court to frame issues arising out of the pleading of both parties and give them opportunity to adduce fresh evidence and dispose of the case on merit. Accordingly on 5.9.1983 plaintiff examined himself as P.W.1, besides examining Bhaskar Pattanaik as P.W.2. Similarly, on 12.9.1983 Budhuram Mistry (original defendant) examined himself as D.W.1 and one Abhayapada Banarjee was examined as D.W.2. Again, in compliance to the direction of first appellate Court in Title Appeal No. 7 of 1983 to adduce evidence with regard to specification of the disputed land, plaintiff examined himself as P.W.1 on 22.1.1985, besides examining Udayanath Swain as P.W.2 on 23.1.1985 before the trial Court. Budhuram Mistry was examined on 6.2.1985 to nullify the evidence of P.Ws.1 and 2 examined in this regard. On perusal of the judgment of the trial Court it is found that it has considered the evidence of Bhaskar Pattanaik, examined as P.W.2 on 5.9.1983. The first appellate Court has also considered the evidence of P.W.2, but it has not named him. As discussed above, three witnesses have been examined as P.W.2 in different dates. They are Simadri, Bhaskar Pattanaik and Udyanath Swain. So it creates confusion as to whether the first appellate Court considered the evidence of Bhaskar Pattanik who was examined on 5.9.1983. In his evidence this witness admitted that the defendant had filed a suit against him and some others by virtue of a power of attorney executed in his favour by Baidyanath Ganguly. In the impugned judgment the trial Court did not rely on the evidence of P.W.2 (Bhaskar Pattanaik) as defendant had filed a suit against him and others as the power of attorney holder of Mr. Ganguly. As such, it clearly sows that first appellate Court has also considered the evidence of Bhaskar Pattanaik (P.W.2). So, it cannot be said that the trial Court as well as the first appellate Court had not considered the evidence of Bhaskar Patnaik who was examined as P.W.2 on 5.9.1,983 and as such the question of vitiating the judgment of the trial Court as well as the first appellate Court for non-consideration of his evidence does not arise.
7. The plaintiff has prayed for declaration of his title and possession over the suit land. Title may either be proprietory or possessory. Here in the present case the plaintiff filed the suit basing on his previous possession over the suit land. Hence the suit was essentially for possession and not for title, even though the prayer is for title also. The first appellate Court dismissed the appeal on the ground that the appellant-plaintiff failed to establish his adverse possession over the suit land. As discussed earlier, in effect the prayer of the plaintiff in the pleading was for declaration of possessory title. So he was not required to prove adverse possession over the same. In fact no issue was framed by the trial Court with regard to adverse possession also. So the first appellate Court committed error in dismissing the appeal holding that the plaintiff-appellant failed to prove his adverse possession over the suit land. The plaintiff filed the suit as possession over the suit land was declared by the Executive Magistrate in favour of the defendant in a proceeding under Section 145 of Cr.P.C. He can succeed if he can prove his previous possession constituting possessory title, provided the defendant has not a better title than his. Admittedly, neither of the parties is the proprietory title holder of the suit land. A possessory title is good against every one who does not have a better title. In the case at hand the appellate Court did not at all consider the evidence adduced by the defendant. He ought to have assessed the evidence of both the parties to find out who was in possession of the disputed land prior to alleged forcible dispossession of the plaintiff and would have disposed of the appeal in accordance with law. Under such circumstances, it would be just and proper to remand the matter again to the first appellate Court to assess the evidence of both the parties and pass appropriate order.
Accordingly, the Second Appeal is allowed, the judgment and decree of the first appellate Court are set aside and the matter is remitted back to it with direction to dispose of the appeal three months from the date of receipt of this order on the basis of the observations made, after giving opportunity of hearing to the parties.