Orissa High Court
RSA/333/2017 on 17 March, 2021
R.S.A. No.333 of 2017
03. 17.03.2021 This matter is taken up through hybrid arrangement
(virtual/physical mode).
The appellant, by filing this appeal under section 100
of the Code of Civil Procedure (for short, 'the Code'), has assailed
the judgment and decree dated 21.07.2017 and 29.07.2017
respectively passed by the learned District Judge, Balasore in
R.F.A. No.116 of 2015.
By the said judgment and decree, the lower appellate
court has confirmed the judgment and decree dated 02.04.2015
and 10.04.2015 respectively passed by the learned Civil Judge
(Junior Division), Balasore, in Civil Suit No.326 of 2012-I.
The Appellant, as the Plaintiff, had filed the suit
against the State and its official in the field, as the Respondents
herein arraigning them as the Defendants.
2. For the sake of convenience and clarity as also to
avoid confusion; the parties hereinafter have been referred to in
the same rank as assigned to them in the original proceeding
before the Trial Court i.e. the appellant as 'the Plaintiff' whereas
the respondents as 'the Defendants'.
3. The Plaintiff's case is that suit land originally
belonged to the Defendant-State. It is stated that the said land
which is now the subject matter of the suit measures an area of
Ac.0.28 decimals and it is a part of C.S. Plot No.2261. It is the
further case of the Plaintiff that he was in unauthorized possession
of the suit land for a long period and in course of that, the land
had been settled in his name vide Lease Case No.664 of 1973 by
order dated 28.09.1974 passed b y the Defendant No.2. It is also
his case that pursuant to the said order of settlement of land,
Raiyat Patta was issued in his favour and since then, he has been
in settled and cultivatable possession of the land; paying rent to
the State. It is stated that for the purpose of reclamation of the
land, he has spent huge amount and made it fit for cultivation. In
the settlement of the year 1995, despite the Plaintiff having
stacked the claim of recording the said land in his favour, the
Settlement Authorities, without any justification, rejected his
claim and ignoring the order of the settlement of the said land in
his favour followed by the issuance of the Patta have illegally
ordered for preparation of the record of right in the name of the
Defendant-State which the Plaintiff came to know later. He thus
asserts the same to be without any basis. The Plaintiff
apprehending that the Defendants taking advantage of the
erroneous recording of the land, may settle the land in favour of
someone else, has filed the suit.
The Defendants although have not filed the written
statement, yet contested the suit.
The Trial Court having discussed the oral as well as
the documentary evidence let in by the Plaintiff, has dismissed the
Suit. The unsuccessful Plaintiff then having carried an Appeal, has
also not been able to get the said judgment and decree passed by
the trial court, annulled. The Appellate Court has also non-suited
the Plaintiff. Hence, this Appeal.
4. Mr.M.Basu, learned counsel for the Appellant
(Plaintiff) submits that the Courts below, in the facts and
circumstances of the case; further keeping in view the evidence on
record, ought to have decreed the suit filed by the Plaintiff
granting him the reliefs claimed therein. He urges for admission of
this Appeal on the following substantial question of law:
"(a) Whether both the Courts below have
come to a wrong conclusion that there is no
permanent settlement in favour of the
Plaintiff/Appellant in respect of the suit land,
when the document under Annexuer-1 clearly
establishes that permanent lease has been
granted in favour of the Appellant which gets
further fortified by preparation of corrected
ROR under Khata No.891/5."
Mr.P.C.Das, learned counsel for the State in assisting
the Court, submits all in favour of the findings rendered by the
Courts below. According to him, in the facts and circumstances
and the evidence on record, the submission of the learned counsel
for the Appellant that there arises substantial question of law for
admission of the Appeal is not acceptable
I have perused the judgments passed by Trial Court
as also the Appellate Court.
5. The case of the Plaintiff in specific is that the suit
land is part of the land which now stands recorded in C.S. Khata
No.990 under Plot No.2261 as Abadya Jogya Anabadi and that
was the land which is said to have been leased out to him in Lease
Case No.664 of 1973 for agricultural purpose and he is in
possession of the same since then. It is also his case that he was
also in possession of the same prior to the said lease. The lease
Patta which has been adduced in evidence from the side of the
Plaintiff has been marked as Ext.1. It is his further case that after
the grant of lease, the land had been recorded in his name. This
Ext.1 appears to have issued on 28.09.1974 for an area measuring
an area of Ac.0.28 decimals from out of C.S. Plot No.2261 under
Khata No.990, the total area of which was Ac.2.22 decimals. The
land was then recorded under 'Abadya Jogya Anabadi' Khata with
the kisam 'Puratan Patita'. Ext.5 goes to show that RMS Plot
No.2819 relates to Khata No.971 whereas RMS Plot No.2891 as
reflected in Ext.4 has been shown to be under Khata No.968 and
not under Khata No.971 as mentioned in Ext.5. The record reveals
that the suit land under C.S. Plot No.2261 relates to the land under
RMS No.2819 as the new Plot No.2954 measuring Ac.0.28
decimals is shown to be part of C.S. Plot No.2261 as finds
mention in the corrected ROR under Khata No.89/5. In that
corrected ROR when endorsement as to Lease Case No.664 of
1973 appears; in Ext.1, which is the first document projected from
the side of the Plaintiff in support of the lease refers to Lease Case
No.664 of 1973. The order pursuant to which there has been
issuance of Ext.1 wherefrom, it could have been ascertained that
the Plaintiff has the right over the land in suit as its lessee as also
other conditions attached thereto has not been proved.
With the above state of affairs in the evidence, the
Courts below having arrived at a conclusion that the Plaintiff has
failed to establish his right, title and interest over the suit land and
that he has never been in possession of the same; no such fault is
found with the same. In that view of the matter, the submission of
the learned counsel for the Appellant (Plaintiff) that the Appeal
involves the substantial question of law, as indicated in the
foregoing paragraph-4 stands repelled.
6. In the wake of aforesaid, the Appeal stands
dismissed. In the peculiar facts and circumstances, however, there
shall be no order as to costs.
(D. Dash)
Judge
Basu
