Orissa High Court
Hikmat Saha & Another vs Raso Saha on 20 April, 2021
Equivalent citations: AIR 2021 ORISSA 81, AIRONLINE 2021 ORI 109
Author: D. Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
R.S.A. NO.194 OF 2018
---
In the matter of an application under section 100 of the Code of
Civil Procedure has assailed the judgment and decree passed by the
learned District Judge, Jajpur in RFA No.27 of 2010.
---
Hikmat Saha & Another :::: Appellants.
-:: Versus ::-
Raso Saha :::: Respondent.
For Appellants :::: M/s. Niranjan Prasad Patra,
A.C. Samal, D.N. Sahoo,
S.K.Swain, Advocate (A-1)
M/s. Akshya Kumar Behera,
Purna Chandra Behera,
Advocates (A-2).
For Respondent :::: None
----
P R E S E N T:
THE HONOURABLE SHRI JUSTICE D.DASH
-----------------------------------------------------------------------------------------
Date of Hearing: 09.04.2021 : Date of Judgment : 20.04.2021
-----------------------------------------------------------------------------------------
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
(( 2 ))
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.
2. 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.
3. 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
(( 3 ))
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.
4. 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
(( 4 ))
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.
5. 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
(( 5 ))
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.
8. 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."
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.
(( 6 ))
6. 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.
7. 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
(( 7 ))
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
(( 8 ))
questions of law are involved in the case for being answered in this
Appeal is stands repelled
8. 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.
.........................
D. Dash, J.
Orissa High Court: Cuttack Dated the 20th day of April, 2021/Narayan