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2016 Supreme(Ori) 543
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Narottam Sanabad (dead); and after him, his legal heirs and another - Appellants
Versus
Minaketan Sanabad and others - Respondents
S.A.No.176 of 1997
Decided On : 02-09-2016
For the Appellants : Mr. Budhiram Das.
For the Respondents: Mr. K.A. Guru, Ms. S. Mishra.
The central legal point established in the judgment is that the usage of the passage as a common passage by both parties rendered the specific plot ownership immaterial, and the suit was not maintainable due to non-compliance with notice under Section 80 C.P.C.
Headnote:
Easementary Right - Land Dispute - Survey and Settlement Act - [Section 80 C.P.C., Survey and Settlement Act] - The court discussed the easementary right of passage over M.S. Plot No.1027, the necessity of compliance with notice under Section 80 C.P.C., and the ownership of basti plots by the State Government. The court also referred to the case of M/s. Bajaj Hindustan Sugar & Industries Ltd. V. Balarampur Chini Mills Ltd. and others, AIR 2007 SC 1906, regarding the refusal of leave under Section 80(2) of the Code.
Fact of the Case:
The dispute pertains to a strip of land appertaining to M.S. Plot No.1027, khata No.503, area Ac.0.01 dec. of mouza-Dhanupali. The plaintiffs claimed exclusive easementary right of passage over the land, while the defendants asserted their right to use the same passage.
Finding of the Court:
The court found that the passage is used as a common passage by both parties, making it immaterial whether it is a part of M.S. Plot No.1027 or 1028. The court also held that the suit was not maintainable for non-compliance of notice under Section 80 C.P.C., but since the matter was decided on merit, the issue became insignificant.
Issues: The issues included the right of passage, compliance with notice under Section 80 C.P.C., and the ownership of basti plots by the State Government.
Ratio Decidendi: The court's decision was based on the finding that the passage was used by both parties, rendering the specific plot ownership immaterial. The court also emphasized that the suit was not maintainable due to non-compliance with notice under Section 80 C.P.C., but since the matter was decided on merit, the issue became insignificant.
Final Decision: The appeal was dismissed as it was found to be without merit.
JUDGMENT :
A.K. RATH, J.
This appeal challenges the correctness of the judgment and decree dated 29.3.1997 and 11.4.1997 passed by learned District Judge, Sambalpur in T.A.No.12 of 1991 dismissing the same and thereby confirming the judgment and decree dated 7.12.1990 and 28.3.1991 passed by the learned Munsif, Sambalpur in T.S.No.44 of 1989.
2. The appellants are the plaintiffs against a confirming judgment. Be it mentioned here that during pendency of the appeal, appellant no.1 died, whereafter his legal representatives have been substituted as appellants 1 (a) to 1 (d). Respondent no.1 died and was expunged pursuant to the order of this Court. Similarly, respondents 2 and 3 died, whereafter their legal representatives have been substituted as 2(a) to 2(e) and 3 (a) respectively. The dispute pertains to a strip of land appertaining to M.S. Plot No.1027, khata No.503, area Ac.0.01 dec. of mouza-Dhanupali. The case of the plaintiffs is that the suit schedule land is a passage. The same is a part of M.S. Plot No.1027 and not Plot No.1028. They use the passage for their egress and ingress from their residential house to the village road exclusively since the time of their forefathers. The defendants, who have no semblance of right, title and interest over the same, have managed to prepare M.S. Plot No.1028 as a part and parcel of M.S. Plot No.1027. When they threatened to obstruct the passage, the plaintiffs instituted the suit for declaration of easementary right of passage over M.S. Plot No.1027, correction of R.O.R. of plot no.1028 and permanent injunction.
3. Pursuant to issuance of summons, defendants 1, 2 and 4 entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit is barred for noncompliance of notice under Section 80 C.P.C. on the State of Orissa, defendant no.7. It is their specific case that the suit passage is a part and parcel of M.S. Plot No.1028. The same is used by them as passage to their house and cow shed.
4. On the inter se pleadings of the parties, the learned trial court struck eight issues. To substantiate the case, the plaintiffs had examined three witnesses and on their behalf, two documents were exhibited. The defendants had also examined two witnesses. While answering issue nos.1 and 2, the learned trial court came to hold that since the State of Orissa is necessary party to the suit and both the parties have admitted that the suit passage is a Basti plot, the State Government is the paramount owner of the same. The suit is not maintainable for non-compliance of notice under Section 80 C.P.C. on the State of Orissa, defendant no.7. With regard to issue no.3, the learned trial court returned a finding that both the parties have admitted that M.S. Plot Nos.1027 and 1028 are Basti plots. The State of Orissa, defendant no.7 is the owner of it. The State is the dominant owner and they are servient owner. A servient owner cannot deny the right of passage to another servient owner. Thus, the plaintiffs have no exclusive easementary right over the same. So far as issue nos.4 and 5 are concerned, it was held that the settlement map is correct and the same is prepared by observing all official procedure. Held so, the learned trial court dismissed the suit.
5. Assailing the judgment and decree dated 7.12.1990 and 28.3.1991 respectively passed by the learned trial court, the plaintiffs filed T.A.No.12 of 1991 before the learned District Judge, Sambalpur, which was eventually dismissed.
6. The Second Appeal was admitted on the following substantial questions of law:-
“1. Whether the lower appellate court justified in holding that the question whether the suit land is part of plot no.1027 or 1028 is immaterial vitiates the entire judgment?
2. Whether the learned Appellate Court should have allowed the petition for amendment in view of its own finding that the State of Orissa is not a necessary party and that the plaint was wrongly drafted and there
