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2018 Supreme(Ori) 234
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Smt. Sashikala Nayak and another - Appellants
Versus
Nabakishore Jena and others - Respondents
S.A. No.139 of 1994
Decided on : 15-01-2018
Advocate Appeared:
For the Appellants :Mr. Ramakanta Mohanty, Sr. Advocate Mr. K.K. Mohapatra, Advocate
For the Respondents:Mr. Anam Charam Panda, Advocate
The court's decision was primarily based on the finding that the disputed land was intervened by another plot, and there were discrepancies in the description of the land, leading to the dismissal of the suit.
Headnote:
Title Declaration - Disputed Land - The court held that the disputed land was intervened by another plot, leading to the dismissal of the suit. The plaintiffs' claim of title was dismissed due to discrepancies in the description of the land and lack of evidence of encroachment by the defendants.
Fact of the Case:
Plaintiffs sought declaration of title, confirmation of possession, demolition of structure over the suit land, and permanent injunction. They claimed that the suit land originally belonged to defendant nos.3 and 4, and they purchased a portion of it. Defendant nos.1 and 2 denied the assertions, claiming ownership and possession of the land.
Finding of the Court:
The court found that the disputed land was intervened by another plot, and there were discrepancies in the description of the land. It held that there was no evidence of encroachment by the defendants, leading to the dismissal of the suit.
Issues: The main issue was the ownership and possession of the disputed land, as well as the discrepancies in the description of the land in the sale deed and the settlement map.
Ratio Decidendi: The court's decision was influenced by the finding that the disputed land was intervened by another plot, and there were discrepancies in the description of the land. Lack of evidence of encroachment by the defendants also played a crucial role in the dismissal of the suit.
Final Decision: The appeal was dismissed, and there was no order as to costs.
JUDGMENT :
A.K. RATH, J.
1. Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title, confirmation of possession, demolition of structure over the suit land and permanent injunction.
2. The case of the plaintiffs was that the suit land originally belonged to defendant nos.3 and 4. The same fell to the share of defendant no.3 in a family partition. Plaintiffs purchased Ac.0.02 ½ dec. out of Ac.0.04 dec. appertaining to khata no.203, plot no.1/2504 of mouza-Jalasarapur. In the year 1983, the defendant no.1 made unauthorized construction over a portion of the suit land. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendant nos.1 and 2 entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant nos.1 and 2 was that they purchased Ac.0.02 dec. of land out of Ac.0.04 dec. appertaining to khata no.203, plot no.1/2504 from defendant no.3 by means of a registered sale deed dated 17.11.1980. They are in possession of the land. In between the two plots, there is an intervening plot of Laxmidhar Jena and as such interference of the possession of the plaintiffs does not arise.
4. On the interse pleadings of the parties, learned trial court struck eight issues. Both parties led evidence, oral and documentary. Learned trial court came to hold that the land purchased by the defendants is intervened by the land of Laxmidhar Jena. Defendant no.1 had encroached upon the land of the plaintiffs. Held so, it dismissed the suit. The plaintiffs unsuccessfully filed T.A. No.4 of 1988 before the learned Civil Judge (Sr. Divn.), Anandapur, which was eventually dismissed.
5. The second appeal was admitted on the following substantial question of law.
“Are the courts below justified in dismissing the plaintiffs’ suit for title when defendants have not disputed the same ?”
6. Mr. Ramakanta Mohanty, learned Senior Advocate for the appellants submitted that there is only one suit plot, i.e., plot no.1/2504 having area of Ac.0.04 dec. There cannot exist any buffer plot between the two plots of the parties. The court in exercise of power under Order 7 Rule 7 C.P.C. can mould the relief and direct partition, where there was no dispute that the plaintiffs are entitled to Ac.0.02 ½ dec. and defendants are entitled to Ac.0.01 ½ dec. out of Ac.0.04 dec. out of plot no.1/2504.
7. Per contra, Mr. Anam Charan Panda, learned counsel on behalf of Mr. Asoke Mukherji, learned Senior Advocate for the respondents submitted that both the courts concurrently held that the suit plot and the defendants’ land are intervened by another plot, which is essentially a finding of fact.
8. Plaintiffs instituted the suit pleading inter alia that they purchased Ac.0.02½ dec. of land appertaining to khata no.225, plot no.34/2504 of mouza-Jalasarapur from defendant no.3 by means of a registered sale deed dated 17.9.1979. During pendency of the suit, a civil court commissioner was appointed. He submitted report stating that there is no plot bearing no.34/2504. The suit plot no.34/2504 does not find place in the hal settlement map. The same is plot no.1/2504. Thereafter the plaintiffs amended the plot number from plot no.34/2504 to plot no.1/2504. Learned trial court came to hold that the schedule of land described in the sale deed, Ext.1, does not tally with the plaint schedule. Plot no.34/2504 described in the sale deed, Ext.1, is a wrong number. There is no such plot in the settlement map as per the report of the civil court commissioner. The land possessed by the plaintiffs and defendant nos.1 and 2 are intervened by the land of one Laxmidhar Jena, D.W.1. It further held that though Ac.0.02 dec. of land has been sold to defendant no.1 vide Ext.A, but actually delivery of possession was made in respect of Ac.0.01½ dec. There is absolutely no evidence on record that the defendant no.1 has encroached upon the land of the plaintiffs. In view of the same, the que
