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2014 Supreme(Ori) 225
HIGH COURT OF ORISSA, CUTTACK
RAGHUBIR DASH, J.
Mohanlal Kheta (dead) after him, his L.Rs. Smt. Godavari Ben & Others – Appellants
Versus
State of Orissa and Another – Respondents
MISC. Appeal No. 249 of 2000
Decided On : 18.08.2014
For Appellants: M/s. A.K. Nanda, S.M. Rao, J. Nayak & G.N. Sahu.
For Respondents:Additional Government Advocate.
The court emphasized the need for proper adjudication of the dispute and found that the lower appellate court's order of remand was not in accordance with the provisions of Order 41 of C.P.C.
Headnote:
Easementary Right - Property Dispute - [Order 41 Rule 23, Order 41 Rule 25 of C.P.C.] - The court discussed the identification and ownership of the suit land, the ambiguity in the Amin Commissioner's report, and the need for proper adjudication of the dispute. The court found that the lower appellate court's order of remand was not in accordance with the provisions of Order 41 of C.P.C. and set it aside, allowing the matter to be remanded for disposal in accordance with the law.
Fact of the Case:
The appellant filed a suit for declaration of easementary right over a pathway, which was contested by the respondents. The trial court decreed the suit, but the lower appellate court reversed the decision and remanded the suit for fresh disposal.
Finding of the Court:
The court found that the lower appellate court's order of remand was not in accordance with the provisions of Order 41 of C.P.C. and set it aside, allowing the matter to be remanded for disposal in accordance with the law.
Issues: Identification and ownership of the suit land, ambiguity in the Amin Commissioner's report, and the need for proper adjudication of the dispute.
Ratio Decidendi: The lower appellate court's order of remand was not in accordance with the provisions of Order 41 of C.P.C.
Final Decision: The Misc. Appeal is allowed, and the impugned judgment is set aside. The matter is remanded to the learned lower appellate court for disposal in accordance with the law.
JUDGMENT
RAGHUBIR DASH, J.
1. Being aggrieved, the appellant, who is the plaintiff before the learned trial court and respondent before the learned lower appellate court has preferred this appeal challenging the judgment dated 16.03.2000 passed by the learned appellate court (Civil Judge, Senior Division, Rayagada) in Title Appeal No. 2 of 1995 reversing the judgment and decree of the learned Civil Judge (Junior Division), Rayagada in T.S. No. 4 of 1987 and remanding the matter to the trial court. Respondents are the defendants in the suit and appellants in the Title Appeal.
2. The appellant has filed the suit for declaration that he and his family members/agents/ servants have easementary right of way over the suit land to have ingress to and egress from his quarters standing on his plot No. 266/1816 under Khata No. 208 of Rayagada Nagar, with other consequential reliefs. According to the plaintiff the suit land is a pathway of 15 feet width connected with the P.W.D. road to its west and it is the only access from that road to the plaintiff’s quarters standing on his Plot No. 266/1816. It is also claimed by the plaintiff that not only the plaintiff and his men but also others residing in the nearby locality use the passage. The plaintiff has asserted that the suit land being in use as a pathway for last 60 years, the plaintiff has acquired easementary right of way over it.
3. Respondent No.1 State of Orissa and Respondent No. 2-P.A., ITDA, Rayagada contest the suit filing a joint written statement denying the assertions made by the plaintiff. It is denied that there are any quarters over Plot No. 266/1816. Those stand on Plaintiff’s ancestral land appertaining to Plot No. 265 which has been subsequently sub-divided into several plots. It is further alleged that during the last settlement the appellant managed to get Plot No. 266/1816 recorded in his name deleting it from Government Khata. It is also claimed that the actual passage used as approach road to the plaintiff’s houses on his ancestral land is over Plot Nos. 265/2166 and 265/2268 connecting with a public road which is to the adjourning North of plaintiff’s Plot No. 265. It is denied that the suit land is the only pathway which is being used by the plaintiff and his man for last 60 years and thereby acquiring easementary right in it.
Filing an additional written statement respondents/defendants have taken the stand that by virtue of a gazette notification the Government acquired Ac.34.26 of land including Plot No. 266/1816 and a portion of Plot No. 265 under Khata No. 208. After such acquisition, the plaintiff and other claimants have received the compensation. Hence, the plaintiff cannot claim any easementary right over the suit land.
4. Learned trial court decreed the suit declaring that the plaintiff has got easementary right over the suit land to use it as a passage to his quarters situate on Plot No. 266/1816. Learned lower appellate court reversing the judgment and decree of the learned trial court has remanded the suit to the trial court with a direction to frame and try the following additional issues and to decide the suit thereafter:
(1) To which plot the suit land/passage belongs?
(2) What is its length, breadth and extent?
5. The Plot number of the suit land is not mentioned in the plaint. It is also not claimed by the plaintiff that the suit land belongs to the defendants. Learned lower appellate court is of the opinion that the Amin Commissioner’s report is not satisfactory and that even though the plaintiff as well as the defendants sought for cross-examination of the Amin Commissioner, the learned trial court refused to accept their prayer. It is also observed by the learned lower appellate court that the report submitted by the Commissioner is beyond the writ issued by the Court and also beyond the pleadings contained in the plaint. It is of the opinion that the Amin Commissioner’s report makes the case more ambiguous inasmuch as it does not speak as
