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2017 Supreme(Ori) 509
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Kasinath Tung – Appellant
Versus
Jyoti Manjari Nayak – Respondent
RSA No.44 of 2017
Decided On : 11-05-2017
For the Appellant :Mr. Bibhu Prasad Das, Advocate
The appellate court must deal with all issues and record findings supported by reasons.
Headnote:
Counter Claim - Recovery of Possession - C.S. No. 218 of 2009 - Santosh Hazari vs. Purushottam Tiwari, AIR 2001 SC 965; Sudarsan Prusty vs. Rabindranath Prusty and others, 1989 (I) OLR- 379; Braja Kishore Sahu and Others vs. Smt. Sailabala Sahu and Others, 1995 (II) OLR 348; Anathula Sudhakar vs P. Buchi Reddy (Dead) by L.Rs & Others, (2008) 4 SCC 594; Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma alias Nacharamma, (2008) 15 SCC 150; Purna Chandra Biswal vs. Kiran Kumari Brahma (C.M.P. No. 1699 of 2014 disposed of on 17.03.2017)
Fact of the Case:
Plaintiff filed suit for recovery of possession and permanent injunction, claiming ownership and possession of the suit land. Defendant filed counter claim seeking declaration of his right over the suit land.
Finding of the Court:
The appellate court dismissed the appeal, holding that the suit land was identifiable and the defendant's counter claim was misconceived.
Issues: Identifiability of suit land, necessity of declaration of right, jurisdiction of appellate court, validity of counter claim
Ratio Decidendi: A suit for injunction may be sufficient if the defendant merely denies the plaintiff's title without raising a cloud over it. The appellate court must deal with all issues and record findings supported by reasons. A counter claim must be in respect of the subject-matter of the suit.
Final Decision: The appeal is dismissed, as it does not involve any substantial question of law. No costs.
JUDGMENT :
DR. A.K. RATH, J.
1. Defendant is the appellant against an affirming judgment.
2. Respondent as plaintiff instituted C.S. No. 218 of 2009 in the court of the learned Civil Judge (Senior Division), Angul for recovery of possession and permanent injunction impleading the appellant as defendant. The case of the plaintiff is that she purchased the suit land from one Rabindra Naik by means of a registered sale deed dated 19.11.2007. She is the owner in possession of the suit land. The defendant, who has no manner of title over the same, created disturbance in her possession.
3. Pursuant to issuance of summons, defendant entered appearance and filed a written statement-cum-counter claim denying the assertions made in the plaint. The case of the defendant is that he has purchased the plot no.121/134 appertaining to Khata No. 91 from one Brundabati Naik on 05.07.1995. He is in possession of the said land. The plaintiff is not sure of the suit land. She asserts possession over the suit land and as such the defendant filed counter claim seeking declaration of his right over the suit land.
4. On the inter se pleadings of the parties, the learned trial court struck twelve issues. To substantiate the case, the plaintiff had examined four witnesses including herself and on their behalf fifteen documents had been exhibited. Defendant had examined five witnesses including himself and on their behalf, twelve documents had been exhibited. The suit was decreed. The defendant has filed R.F.A. No. 06 of 2015 in the court of the learned District Judge, Angul, which was eventually dismissed.
5. Mr. Das, learned counsel for the appellant, submits that in absence of any prayer for declaration of right, the simple suit for recovery of possession and permanent injunction is not maintainable. The suit land is not identifiable. Learned appellate court has not dealt with all the issues and as such the judgment is vulnerable. He relies upon the decisions of the apex court in the case of Santosh Hazari vs. Purushottam Tiwari, AIR 2001 SC 965 and this Court in the case of Sudarsan Prusty vs. Rabindranath Prusty and others, 1989 (I) OLR- 379, Braja Kishore Sahu and Others vs. Smt. Sailabala Sahu and Others, 1995 (II) OLR 348.
6. The plaintiff asserts that she is the owner in possession of Plot no. 121/318 appertaining to Khata No.148, area of Ac.0.04 dec. of mouza-Panchamahala in the district of Angul. According to her, defendant has no manner of title over the same. The defendant in the written statement-cum-counter claim pleaded that he has purchased plot no.121/234 appertaining to Khata No. 91 from one Brundabati Naik on 05.07.1995.
7. In the case of Sudarsan Prusty vs. Rabindranath Prusty and others, 1989 (I) OLR-379, this Court held that in case of perpetual injunction, possession of the plaintiff is material to be decided. When the plaintiff is not in possession, a simple suit for injunction would not be maintainable. The same view has been reiterated in the case of Braja Kishore Sahu (supra).
8. Unless the defendant raises a cloud over the plaintiff's title, there is no need to file a suit for declaration of her right over the suit land. In Anathula Sudhakar vs P. Buchi Reddy (Dead) by L.Rs & Others, (2008) 4 SCC 594, the apex court in Paragraph 14 of the report held thus:
“14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's
