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HIGH COURT OF ORISSA
S. K. Ray, J.
HARIHAR RAM - Appellant
Versus
BEDA RAM - Respondent
Second Appeal 311 Of 1970
Decided On : MARCH 15, 1974
RIGHT OF WAY - CUSTOM - PRESCRIPTION - PUBLIC ROAD - DEDICATION - EVIDENCE - BURDEN OF PROOF - INTERPRETATION OF RECORD-OF-RIGHTS - ADMISSIBILITY OF EVIDENCE - RELEVANCE OF EVIDENCE - SUFFICIENCY OF EVIDENCE - INFERENCE FROM EVIDENCE - PRESUMPTION OF CORRECTNESS OF RECORD-OF-RIGHTS - SHIFTING OF BURDEN OF PROOF - DISMISSAL OF SUIT - EFFECT ON OTHER RIGHTS.
Fact of the Case:
Plaintiffs filed a suit for a declaration that defendant No. 1 has no right, title, and interest over Schedule 'b' land, that the entry in the record-of-rights of 1962 settlement of defendant No. 1's name in respect of the said land is wrong, that he has a right of way over the said land, and for permanent injunction restraining defendant No. 1 from setting up a shop or making any kind of construction upon the said land. The suit was later converted to a representative suit on behalf of the villagers of Gureipali.
Finding of the Court:
The court found that the disputed land, C. S. plot No. 191, was originally part of R. S. plot No. 280, which was recorded as a rasta in the record-of-rights. However, a portion of R. S. plot No. 280 was recorded as chalia, indicating the existence of a house. This portion was later carved out as C. S. plot No. 191. The court also found that the width of the Gureipali village road, excluding the disputed land, would be sufficient to accommodate all vehicular traffic and that the villagers would not be affected by the contemplated construction on C. S. plot No. 191.
Issues: 1. Whether the plaintiffs have a right of way over Schedule 'b' land? 2. Whether the disputed land, C. S. plot No. 191, was originally part of R. S. plot No. 280, which was recorded as a rasta? 3. Whether the plaintiffs have adduced sufficient evidence to prove their claim of a right of way over Schedule 'b' land?
Ratio Decidendi: 1. The court held that the plaintiffs cannot claim a right of way over Schedule 'b' land by prescription because prescription is not a recognized mode of acquisition of such a right for a limited section of the public, such as the villagers of Gureipali. 2. The court also held that the plaintiffs have not adduced sufficient evidence to prove that the disputed land, C. S. plot No. 191, was originally part of R. S. plot No. 280, which was recorded as a rasta. The court relied on the presumption of correctness of the record-of-rights, which indicates that a portion of R. S. plot No. 280 was recorded as chalia, indicating the existence of a house. 3. The court further held that the plaintiffs have not adduced sufficient evidence to show that the contemplated construction on C. S. plot No. 191 would affect the villagers' right of way over the Gureipali village road.
Final Decision: The court dismissed the suit, holding that the plaintiffs have failed to prove their claim of a right of way over Schedule 'b' land.
S. K. RAY, J.
( 1 ) THIS appeal is by the plaintiffs from the confirming decision of the lower appellate court.
( 2 ) ORIGINALLY plaintiff No. 1 filed this suit for a declaration that defendant No. 1 has no right, title and interest over Schedule 'b' land and that the entry in the recordof-rights of 1962 settlement of defendant No. 1's name in respect of the said land is wrong and that he has right of way over the said land and for permanent injunction restraining defendant No. 1 from setting up a shop or making any kind of construction upon the said land. Subsequently, by order of the High Court passed in C. R. No. 79 of 1967 the plaintiff was allowed to amend his plaint and to convert it to a representative suit under Order 1. Rule 8, C. P. C. on behalf of the villagers of Gureipali. By amendment, the original prayer (e) of the plaint was amended and a declaration was sought that the villagers of Gureipali have right of way over Schedule 'b' land.
( 3 ) SCHEDULE 'b' land measures about A0. 01 decimal and appertains to plot No. 191 in khata No. 14 of mouza Gureipali of the 1962 settlement. It appears from Ex. H, the parcha, read with the R. S. record-of-rights (Ex. Q) that C. S. Plot No. 191 comprising of 1 decimal has been carved out of the southern portion of K. S. Plot no. 280 which had been recorded as a rasta in Ex. Q. because the northern boundary of this C. S. plot No. 191 has been described to be a rasta. The C. S. record-of-rights of 1962 (Ex. G) shows that there is a house standing on C. S. plot no. 191. In the R. S. record-of-rights (Ex. Q), though R. S. plot No. 280 has been shown to be rasta, there was also mention of chalia on a part of it. In absence of anything to the contrary on the record rebutting the presumption of these recordsof-rights, it is bound to be held that there was a chalia on 1 decimal of land which was once a part of R. S. plot No. 280 but now constitutes a separate C. S. plot No. 191, The balance of R. S. plot No. 280 continues to be recorded as rasta. The R. S. map (Ex. 2) reflects the entries in the R. S. Record-of-rights (Ex. Q ). Similarly C. S. map, Ex. 1, reflects C. S. record-of-right (Ex. G), because there are dots in those r. S. and C. S. plots indicating the existence of a challa.
( 4 ) IT is now claimed in this suit that this C. S. plot No. 191 forms part of Gureipali village road. There is. in fact, a Gureipali village road which starts from village gureipali and meets the main Khandapara-Jatni road. It is at this junction of the village road with the main road that the disputed C. S. plot No. 191 containing a ghar is located. Admittedly, R. S. plot No. 280 belongs to Nrusingh Jew Thakur of kendeuapali Math and that the defendant No. 1 had taken a part of it, which now constitutes C. S. plot No. 191, on lease from the former and has been holding his shop there since the time of his father. The ownership of the deity is not in dispute, but subject to such ownership, Schedule 'b' land has constituted part of the Gureipali village road. There was no indication of dimension of the road as to its width and length in the plaint, but, as is disclosed from the evidence adduced on behalf of the plaintiffs as well as on behalf of defendants the suit land is 5 cubits x 4 cubits while the width of the Gureipali village road at the junction is 14 to 15 cubits according to some and 10 to 12 cubits according to others. The width of the main Khandapara Jatni Road is 10 to 12 cubits according to some and 8 to 10 cubits according to others. If the width of the disputed land is excluded, the width of Gureipali village road would be about 9 to 10 cubits at the place where C. S. plot No. 191 is located. Thus, if all manners of vehicles and traffic can pass over khandapara-Jatni road having a width of 10 to 12 cubits, the width of Gureipali village road excluding the disputed land will be sufficient to accommodate all such vehicular traffic and the villagers will not be affected by the contemplated
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