Orissa High Court
Procedure vs Siba Prasad Raju(Dead) And Others on 17 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.411 of 2001
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Ratnakar Sahoo(dead) and others .... Appellants
-versus-
Siba Prasad Raju(dead) and others .... Respondents
Appeared in this case:-
For Appellants : Mr. D.P. Mohanty, Advocate
For Respondents : Mr. S.S. Rao, Senior Advocate
assisted by Mr. B.K. Mohanty,
Advocate
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 03.01.2025 / date of judgment : 17.01.2025 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellant in this 2nd appeal was the plaintiff before the trial court in the suit vide T.S. No.09 of 1986 and respondent no.1 before the 1st appellate court in the 1st appeal vide T.A. No.10 of 1993.
3. The respondents in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.09 of 1986 and appellants before the 1st appellate court in the 1st appeal vide T.A. No.10 of 1993. The suit of the plaintiff(appellants in this 2nd appeal) against the defendants(respondents in this 2nd appeal) vide T.S. No.09 of 1986 was a suit for declaration, confirmation of possession and for permanent injunction.
4. The suit properties are Hal Plot No.2359 under Hal Khata No.475 Ac.0.06 decimals, which corresponds to part of Sabik Plot No.769 under Sabik Khata No.184.
As per plaintiff's case, the area of Sabik Plot No.769 under Sabik Khata No.184 was Ac.0.52 decimals in Mouza Patnagarh and the said Ac.0.52 decimals properties were the ancestral properties of the plaintiff, in which, the father of plaintiff, i.e., Dharanidhar Sahoo along with two brothers of the father of the plaintiff, i.e., Sridhar Sahoo and Gouri Sahoo were the joint owners.
Out of that Ac.0.52 decimals of Sabik Plot No.769, Dharanidhar Sahoo, Sridhar Sahoo and Gouri Sahoo sold Ac.0.16 decimals of land to the predecessors of the defendants, i.e., Rama Raju and Narayan Raju by executing and registering sale deed dated 29.10.1954 and delivered possession thereof. After selling Ac.0.16 decimals of land from Sabik Plot No.769 to the predecessors of the defendants, the remaining Ac.0.36 decemals of that Sabik Plot No.769 remained with Dharanidhara Sahoo, Sridhar Sahoo and Gouri Sahoo.
Page 2 of 18
When Rama Raju and Narayan Raju died leaving behind the defendants as their successors, then, the defendants became the owners of the above purchased Ac.0.16 decimals of land from Sabik Plot No.769 by their predecessors, i.e., Rama Raju and Narayan Raju and they(defendants) have been possessing that Ac.0.16 decimals of land jointly. The said Ac.0.16 decimals has become Hal Plot No.2359 Ac.0.16 decimals in the Hal RoR under Hal Khata No.475, which has been recorded jointly in the names of the defendants.
When, after selling Ac.0.16 decimals of land from Sabik Plot No.769, the predecessors of the plaintiffs, i.e., Dharanidhar Sahoo, Sridhar Sahoo and Gouri Sahoo were the joint owns and in possession over rest Ac.0.36 decimals of land of Sabik Plot No.769, they(Dharanidhar Sahoo, Sridhar Sahoo and Gouri Sahoo) partitioned their said Ac.0.36 decimals of land of Plot No.769 along with their other joint properties between them and in such partition, the above Ac.0.36 decimals of land of Sabik Plot No.769 had fallen in the share of the father of the plaintiff, i.e., Dharanidhar Sahoo. Accordingly, Dharanidhar Sahoo became the exclusive owner over the said Ac.0.36 decimals of land of Sabik Plot No.769.
After partition, the Hal settlement RoR in respect of the said Ac.0.36 decimals of land of Sabik Plot No.769 was published exclusively Page 3 of 18 in the name of Dharanidhar Sahoo(father of the plaintiff) under Hal Khata No.458 Plot No.2360 Ac.0.36 decimals.
When Dharanidhar Sahoo died leaving behind the plaintiff as his only successor, then, the above Ac.0.36 decimals of land of Hal Plot No.2360 devolved upon the plaintiff and as such, the plaintiff is the exclusive owner of Ac.0.36 decimals of land of Hal Plot No.2360 and he(plaintiff) had/has been possessing the same.
When, on dated 20.10.1985, the defendants created disturbances in the possession of the plaintiff over his Hal Plot No.2360 disclosing that, the Map area of their Hal Plot No.2359 is covering Ac.0.06 decimals area of Hal Plot No.2360 of the plaintiff, for which, he(plaintiff) measured the Map area of Hal Plot Nos.2359 and 2360 through an Amin and compared the same with the recorded areas thereof in the respective Hal RoRs as well as with the filed position and came to know that, though he (plaintiff) is in possession over Ac.0.36 decimals of land of Hal Plot No.2360 as per recorded area thereof in the Hal RoR, but, in the Hal village Map, the area of that Hal Plot No.2360 has been reduced for Ac.0.06 decimals and the area of that Hal Plot No.2360 in the present Hal village Map has become Ac.0.30 decimals and that Ac.0.06 decimals area of Hal Plot No.2360 have been mixed with the Map area of Hal Plot No.2359 of the defendants.
Page 4 of 18
Likewise, the defendants are in possession over Ac.0.16 decimals of land of Hal Plot No.2359 and the recorded area in the Hal RoR of that Hal Plot No.2359 is Ac.0.16 decimals, but, in the Hal village Map, the area of that Hal Plot No.2359 has become Ac.0.22 decimals, which is Ac.0.06 decimals excess than the recorded area of that Hal Plot No.2359. Accordingly, the reduced Ac.0.06 decimals area of Hal Plot No.2360 has been mixed with the Map area of Hal Plot No.2359, for which, erroneously, the Map area of Hal Suit Plot No.2359 has become Ac.0.22 decimals instead of Ac.0.06 decimals and the Map area of Hal Plot No.2360 has become to Ac.0.30 decimals instead of Ac.0.36 decimals. So, he (plaintiff) approached the civil court by filing the suit vide T.S. No.09 of 1986 against the defendants praying for declaration of his right, title and interest only in respect of Ac.0.06 decimals area in the Hal Map of Hal Plot No.2359 and to confirm his possession thereon and to injunct the defendants permanently from creating any sort of disturbances in respect of the said Ac.0.06 decimals excess area of Hal Map of Hal Plot No.2359 than its recorded area.
5. Having been noticed from the trial court in the suit vide T.S. No.09 of 1986, the defendants contested the same by filing their written statement denying the averments made by the plaintiff in his plaint taking their stands therein that, they(defendants) have been possessing the entire Page 5 of 18 Map area of Hal suit Plot No.2359 since the date of their purchase, i.e., since 29.10.1954 and accordingly, they(defendants) have title and possession over the same, but, the plaintiff has filed the suit on false and imaginary grounds in order to harass them(defendants), for which, there is no merit in the suit of the plaintiff. The same is liable to be dismissed against them(defendants).
6. Basing upon the aforesaid pleadings and matters in controversies between the parties altogether eight numbers of issues were framed by the trial court and the said issues are:-
ISSUES i. Whether the suit is maintainable?
ii. Whether there is any cause of action to file the suit?
iii. Whether the plaintiff is the rightful owner and in a peaceful possession over the suit land?
iv. Whether the defendants are in peaceful possession over the suit land on the strength of registered sale deed dated 29.10.1954 and they have perfected their right and title by way of adverse possession?
v. Whether the suit is under-valued?
vi. Whether the plaintiff is entitled to get any relief as
prayed for?
vii. Whether the suit is bad for non-joinder of necessary
parties? and
viii. Whether the suit is barred by law of limitation?
7. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants in the suit vide T.S. No.09 of 1986, the Page 6 of 18 (plaintiff) examined four numbers of witnesses on his behalf including him as P.W.1 and relied upon the documents vide Exts.1 to 4/a including report of the Amin as Ext.4.
On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants also examined four numbers of witnesses from their side including defendant no.2 as D.W.4.
8. After conclusion of hearing of the suit vide T.S. No.09 of 1986 and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendants.
9. Basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiff and against the defendants, the trial court decreed the suit of the plaintiff vide T.S. No.09 of 1986 on contest against the defendants as per its judgment and decree dated 11.10.1993 and 11.11.1993 respectively and declared the right, title and interest of the plaintiff in respect of Ac.0.06 decimals area of Hal Plot No.2359 in the Hal Map and confirmed his possession on the same and restrained the defendants from creating any sort of disturbances in the peaceful possession of the plaintiff thereon assigning the reasons on the basis of the report of the Amin(P.W.4) vide Ext.4 and his evidence that, after selling Ac.0.16 decimals of land from Sabik Plot No.769 out of Page 7 of 18 Ac.0.52 decimals of land to the defendants on dated 29.10.1954 by the predecessors of the plaintiff, the plaintiff is the owner and in possession over the remaining Ac.0.36 decimals of land of Sabik Plot No.769, which has become Hal Plot N.2360 in the Hal RoR under Hal Khata No.458, but, the map area of Hal Plot No.2360 has become Ac.0.30 decimals instead of Ac.0.36 decimals, whereas the map area of Hal Plot No.2359 under Hal Khata No.475 has become Ac.0.22 decimals instead of Ac.0.16 decimals, for which, the map area of Hal Plot No.2359 in the Hal Map has been erroneously prepared mixing Ac.0.06 decimals area of Hal Plot No.2360 of the plaintiff with the same, in which, the plaintiff is the owner, but, defendants are not the owners of the same, for which, the defendants have no interest on the same.
10. On being dissatisfied with the aforesaid judgment and decree dated 11.10.1993 and 11.11.1993 respectively passed in T.S. No.09 of 1986 by the trial court in favour of the plaintiff and against the defendants, they(defendants) challenged the same by preferring the 1 st appeal vide T.A. No.10 of 1993 being the appellants against the plaintiff arraying him(plaintiff) as respondent.
11. After hearing from both the sides, the 1st appellate court allowed that 1st appeal vide T.A. No.10 of 1993 of the defendants and set aside the judgment and decree passed by the trial court and dismissed the suit Page 8 of 18 of the plaintiff vide T.S. No.09 of 1986 discarding/rejecting the evidence of the Amin (P.W.4) as well as his report vide Ext.4 as per its judgment and decree dated 03.08.2001 and 28.08.2001 respectively assigning the reasons in paragraph no.11 of that judgment and decree of the appellate court that, "when the Amin, i.e., P.W.4 has stated in his evidence that, as he did not find any fixed point and started his measurement from the neighbouring house not from the road or temple or any permanent structure or old tree etc., for which, his evidence and his report cannot be held to be accurate and his report vide Ext.4 could not have been relied on and when the evidence of the Amin (P.W.4) and his report vide Ext.4 have become inadmissible on the ground of making measurement without any fixed point, for which, the 1st appellate court set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff."
12. On being aggrieved with the aforesaid judgment and decree dated 03.08.2001 and 28.08.2001 respectively passed by the 1st appellate court in T.A. No.10 of 1993 in favour of the defendants and against the plaintiff, he(plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants arraying them(defendants) as respondents.
Page 9 of 18
13. This 2nd appeal was admitted on formulation of the following substantial question of law, i.e.:-
Whether the 1st appellate court is correct in ignoring the report of the civil court Amin commissioner vide Ext.4 for setting aside the judgment and decree of the trial court?
14. I have already heard from the learned counsel for the appellant and learned counsel for the respondents.
15. It is the undisputed case of the parties that, the suit Hal Plot No.2359 Ac.0.16 decimals under Hal Khata No.475 is in the name of the defendants and its adjacent plot vide Hal Plot No.2360 Ac.0.36 decimals under Hal Khata No.458 is in the name of the plaintiff and both Hal Plot Nos.2359 and 2360 correspond to Sabik Plot No.769 Ac.0.52 decimals under Sabik Khata No.184.
It is also the undisputed case of the parties that, the area of Sabik Plot No.769 was Ac.0.52 decimals and the said Sabik Plot No.769 was the ancestral properties of the plaintiff. The predecessors of the plaintiff have sold Ac.0.16 decimals of land out of Ac.0.52 decimals from Sabik Plot No.769 in favour of the predecessors to the defendants on dated 29.10.1954. The area of the Hal RoR of suit Hal Plot No.2359 under Hal Khata No.475 in the names of the defendants is Ac.0.16 decimals, which has been recorded correctly according to their purchase. Page 10 of 18
The area of Hal Plot No.2360 under Hal Khata No.458 in the favour of the plaintiff is Ac.0.36 decimals, which has been recorded correctly according to the title and possess of plaintiff.
The plaintiff is in possession over entire Ac.0.36 decimals areas of his Hal Plot No.2360. The defendants are in possession over entire Ac.0.16 decimals areas of their Hal Plot No.2359.
The dispute between the plaintiff and the defendants is that, the areas of Hal Plot Nos.2359 and 2360 in the Hal village Map have not been prepared inconformity with the areas in the Hal RoRs of the said Hal Plot Nos.2359 and 2360.
16. According to the plaintiff, the Map area of suit Hal Plot No.2359 has become erroneously Ac.0.22 decimals instead of Ac.0.16 decimals and likewise, the Map area of its adjacent plot vide Hal Map of Plot No.2360 has become erroneously Ac.0.30 decimals instead of Ac.0.36 decimals.
An Amin(P.W.4) was deputed by the trial court in the suit for measurement of the areas of suit Hal Plot No.2359 and Hal Plot No.2360 in the map as well as in the spot/field and to submit a report about the same. Accordingly, Amin(P.W.4) had visited the spot for its measurements and after measurement, he(Amin, P.W.4) submitted report Page 11 of 18 vide Ext.4 before the trial court stating that, the area of suit Hal Plot No.2359 has enhanced for Ac.0.06 decimals in the Hal Map and the area of the Hal Plot No.2359 in the Hal Map has become Ac.0.22 decimals instead of its recorded area Ac.0.16 decimals in the Hal RoR. Likewise the area in the Map of Hal Plot No.2360 has reduced for Ac.0.06 decimals, and the area of the same in the Hal Map has become Ac.0.30 decimals.
17. So, by taking into account the evidence of the Amin(P.W.4) and his report vide Ext.4, the learned trial court decreed the suit of the plaintiff, but, whereas, the learned 1st appellate court set aside the same discarding/ignoring the report of the Amin vide Ext.4 assigning the reasons that, when, Amin(P.W.4) himself has admitted in his deposition that, he did not find the fixed point for the measurement, for which, his report vide Ext.4 cannot be held to be accurate and the same could not be relied upon for acceptance in order to pass any decree on the prayers of plaintiff.
In this 2nd appeal, a question arises, whether the above findings of the 1st appellate court discarding/ignoring the report of the Amin vide Ext.4, on the ground of preparation of the same through measurement without fixed point is sustainable under law.
Page 12 of 18
18. The law regarding the evidentiary value of a report of Amin through measurement like this suit/appeal at hand without fixed point has already been clarified by the Hon'ble Courts in the ratio of the following decision:-
(i) In a case between Sumitra Devi and another vrs.
Dinesh and others : reported in 2022(I) Civil Court Cases-642 & 2022(3) CCC-38 (Uttararkhand) that, measurement of the suit properties by the Amin on being deputed as per Order-26, Rule-9 of the C.P.C. without establishment of fixed point cannot be acceptable under law.
19. Herein this suit/appeal at hand, when the Amin(P.W.4) has deposed in his evidence that, no fixed point was established by him for measurement of the suit Plot No.2359 and its adjacent Plot No.2360, then at this juncture, in view of the principles of law enunciated by the Hon'ble Courts in the ratio of the aforesaid decision, his report vide Ext.4 on the basis of measurement without fixed point cannot be acceptable under law. For which, the findings and observations made by the learned 1st appellate court in paragraph-11 of its judgment in dismissing the suit of the plaintiff setting aside the judgment and decree of the trial court discarding/rejecting the Amin report vide Ext.4 cannot be held as erroneous.
20. The 1st appellate court has set aside the entire judgment and decree of the trial court on the sole ground, i.e., for the rejection of the report of Page 13 of 18 Amin vide Ext.4, as the judgment and decree of the trial court was passed on the basis of the said Amin report vide Ext.4.
It is the settled law that, dismissal of suit for any irregularity in Amin's report cannot be sustainable under law, because, as per law, when, the report of the Amin is discarded/rejected, it is the proper course for the court either to issue a fresh Amin or to remand the matter for re- consideration or to pass an order for re-appointment of another Amin for the same purpose.
21. On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and the Apex Court in the ratio of the following decisions:-
(i) In a case between Laly Joseph@ Laly Sebastian vrs.
K.U. Francis- : reported in 2023(2) Civil Court Cases- 472(Kerala)- (D.B) (Para-10.)--What should be the duty of the court on Amin Commissioner's report given under Order-26, Rules-9, 10 and 14 of the C.P.C. that-
(1) Court can set aside commissioner's report, if Court is totally dissatisfied with commissioner's report.
(2) Court can remit commission for further inquiry.
(3) Court can appoint a fresh commission without setting aside the earlier commission report and (4) Court can very well appreciate both the reports, i.e., 1st and 2nd and decide accordingly at the time of trial.
(ii) In a case between Yasin Gulab Shikalkar vrs. Maruti Nagnath Aware and others : reported in 2023(2) Civil Court Cases-674(Bombay) that, when the appointed Page 14 of 18 commissioner fails to present before the court, correct picture prevails at the site, trial court itself is empowered to appoint an another court commissioner and there is no question of attracting principle of res judicata.
(iii) In a case between R.V. Ganesa Naicker vrs. Painter Selvaraj and another: reported in 2019(1) CCC-24 & 2018(I) Civil Court Cases-470 (Madras) that, while the court expressing dissatisfaction on first commissioner's report, court is expected to set aside first commissioner's report for issuance of 2nd commission.
(iv) In a case between Benudhar Mohapatra and others vrs. Collector-cum-District Magistrate, Nayagarh and others : reported in 2018(I) Civil Court Cases-
662(Orissa)--In a suit for declaration and for correction of map prepared in the settlement, there is no impediment to appoint Amin Commissioner to ascertain measurement of land.
(v) In a case between Ram Lal and others vrs. Salig Ram and others : reported in 2019(I) CLR(S.C.)-825--The dismissal of suit for any irregularity on the part of the local commissioner, not justified, but, proper course for the High Court either to issue a fresh Commissioner or to remand the matter for reconsideration.
(vi) In a case between Vijay Singh vrs. Jamshed Ali and others : reported in 2021(4) Civil Court Cases-
200(Delhi)--When there is dispute, i.e., whether the disputed property falls within the Khasara as claimed by the petitioner or when Khasara as claimed by the respondent, in that case, one of the proper method for ensuring a complete and just adjudication of said dispute is by way of demarcation of property.
(vii) In a case between Jala Swamydas and others vrs.
Jadani Sumayun Raju : reported in 2006(1) Civil Court Cases-73 (Andhara Pradesh)--That, without setting aside the report of the 1st commissioner, a 2nd commissioner for the self-same purpose cannot be appointed.
(viii) In a case between Durgam Mangamma vrs. P. Mohan and others : reported in 1991 Civil Court Cases-294 (Andhra Pradesh)--That, 2nd Commissioner under Order-26, Rule-9 of the C.P.C. cannot be appointed for Page 15 of 18 the same purpose unless and until 1st report is expunged.
(ix) In a case between Ram Lakhan and another vrs.
District Judge and others : reported in 1993 Civil Court Cases-332 (Allahabad)--Second Commissioner as per Order-26, Rule-9 of the C.P.C. can be appointed when in the opinion of the court, report of 1st Commissioner is insufficient or it is desirable to obtain further details.
22. Here, in this suit/appeal at hand, the dispute between the parties has arisen only due to the conflict between the recorded areas of Hal Plot Nos.2359 and 2360 in the Hal RoR and the areas thereof in the Hal Map.
When in view of the ratio of the aforesaid decisions, the said conflict between the parties cannot be ascertained by oral evidence without appointment of survey knowing Amin commissioner and when the trial court has passed the judgment and decree only on the basis of Amin report vide Ext.4 and when the learned 1st appellate court set aside the judgment and decree of the trial court discarding/rejecting the said report of the Amin vide Ext.4 due to preparation of the same through measurement without fixed point, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions of Hon'ble Courts and Apex Court, it should be the duty of the High Court in this 2nd appeal to remand the matter, i.e., the suit vide T.S. No.09 of 1986 to the trial court for its adjudication afresh after setting aside the judgments and decrees of the trial court as well as 1st appellate court Page 16 of 18 directing the trial court to decide the same again after deputing a fresh Amin commissioner for answering appropriate questions through its fresh report giving them(parties) liberties for making necessary amendments, if requires, in their respective pleadings in order to decide their controversies between them finally in the suit for all times to come.
For which, there is justification under law for making interference to a limited extent with the judgments and decrees passed by the trial court and 1st appellate court through this 2nd appeal preferred by the appellant(plaintiff). So, there is some merit in the 2nd appeal of the appellant. The same is to be allowed in part.
23. In result, this 2nd appeal preferred by the appellant(plaintiff) is allowed in part, but, without cost.
24. The judgments and decrees passed by both the courts, i.e., by the trial court and 1st appellate court in T.S. No.09 of 1986 and T.A. No.10 of 1993 respectively are set aside.
25. The matter, i.e., suit vide T.S. No.09 of 1986 is remanded back (remitted back) to the trial court, i.e., to the court of learned Munsif, Patnagarh for its de novo and fresh trial by deputing a 2nd survey knowing Amin commissioner for answering the appropriate questions put to him concerning the real controversies between the parties giving Page 17 of 18 liberty to the parties for making necessary amendments, if any, in their respective pleadings.
26. The trial court is directed to decide the suit vide T.S. No.09 of 1986 afresh on the basis of fresh evidence and fresh Amin report without using the earlier evidence in any manner within a period of seven months positively from the date of communication of this judgment to the trial court.
27. The parties in this 2nd appeal are directed to appear before the trial court on dated 31.01.2025 in the suit vide T.S. No.09 of 1986 for the purpose of receiving the directions of that court as to further proceedings of the suit.
( A.C. Behera ) Judge Orissa High Court, Cuttack The 17th of January, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 17-Jan-2025 15:58:54 Page 18 of 18