Orissa High Court
908) vs Chakradhara Karan And Others on 11 December, 2023
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IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.304 of 2014
(In the matter of an appeal under Section 100 of the Code of Civil Procedure,
1908)
Prafulla Das .... Appellant
-versus-
Chakradhara Karan and others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. S. P.Misra,
Sr. Advocate.
assisted by
Mr.G. Parida,
Advocate
For Respondents - Mr. N.N. Mohapatra,
Advocate
Mr.Suvashish Pattnaik,AGA
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :08.11.2023 :: Date of Judgment :11.12.2023
A.C. Behera, J. This Second Appeal has been preferred against the confirming
judgment.
2. The Appellant of this Second Appeal was the defendant No.1 in
the suit vide C.S. No.10 of 2006 and he was the Appellant No.1 in the
First Appeal vide R.F.A. No.38 of 2011.
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The Respondent No.8 of this Second Appeal was the defendant
No.2 in the suit vide C.S. No.10 of 2006 and he was the Appellant No.2
in the First Appeal vide R.F.A. No.38 of 2011.
The Respondent Nos.1 to 5 of this Second Appeal were the
plaintiffs in the suit vide C.S. No.10 of 2006 and they were the
respondent Nos.1 to 2 (d) respectively in the First Appeal vide R.F.A.
No.38 of 2011.
The Respondent Nos.6 & 7 of this Second Appeal were the
defendant Nos.3 & 4 respectively in the suit vide C.S. No.10 of 2006
and they were the respondent Nos.3 & 4 in the First Appeal vide R.F.A.
No.38 of 2011.
The Respondent No.9 & 10 of this Second Appeal were the
defendant Nos.5 & 6 respectively in the suit vide C.S. No.10 of 2006
and they were the respondent Nos.5 & 6 respectively in the First Appeal
vide R.F.A. No.38 of 2011.
3. The suit of the plaintiffs (those are the respondent Nos.1 to 5 in
the Second Appeal) vide C.S. No.10 of 2006 against the defendant
Nos.1 to 4 (those are the Appellant and Respondent Nos.6, 7 & 8 in this
Second Appeal) was a suit for permanent injunction simpliciter.
The said suit vide C.S. No.10 of 2006 was initially filed by
Chakradhar Karan and Kanduri Karan. Chakradhar Karan and Kanduri
Karan are son and father respectively. Chakradhar Karan was plaintiff
No.1 and Kanduri Karan was plaintiff No.2. When during the pendency
of the suit, the plaintiff No.2 (Kanduri Karan) expired, then in his place
his LRs. were substituted as plaintiff Nos.2(a) to 2(d).
4. As per the averments made by the plaintiffs in their plaint, the suit
properties were originally under Anabadi Khata and the same were
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under the direct control of the ex-landlord. After abolition of the estates
as per the Odisha Estates Abolition Act, 1951, the suit properties were
recorded under Government Khata and R.o.R. of the suit properties is
continuing as such in the name of the Government.
5. Total area of the suit properties is Ac.1.32 decimals. Out of total
area of Ac.1.32 decimals of the suit properties, Kanduri Karan (plaintiff
No.2) had possessed Ac.0.66 decimals and one Kasinath Barik had
possessed rest Ac.0.66 decimals. For which, during settlement operation,
the possession of Kanduri Karan and Kasinath Barik were noted in the
remarks column of the R.o.R. of two suit plots. Though, the R.o.R. of
the suit plots was published erroneously in the name of the Government
under Bana Bhibhag, but the possession of plaintiff No.2 (Kanduri
Karan) was noted in the remarks column of the R.o.R. in respect of the
suit plot No.251/550 and the possession of Kashinath Barik was noted in
the remarks column of the R.o.R. in respect of suit Plot No.251/551. In
the year 1985, Kashinath Barik abandoned the possession of suit Plot
Plot No.251/551 (to which he was possessing), for which, the plaintiff
No.1 being the son of plaintiff No.2 amalgamated both the suit plots and
possessed the entire suit properties within a compact area to the
knowledge of all including the defendant Nos.1 to 4 and as well as the
State Government by fencing around the same. The plaintiffs planted
various trees over the suit plots and dug a tank over Plot No.251/550 and
They (plaintiffs) have been using the water of the said tank for raising
seasonal vegetables in the suit properties and admitting the possession of
the plaintiffs over the suit properties, the defendant Nos. 5 & 6 i.e. State
Government and local Tahasildar initiated Encroachment Cases vide
Encroachment Case Nos.19 of 2006 & 20 of 2006 against the plaintiffs
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in respect of both the suit plots. The defendant Nos.1 to 4 are the
strangers to the suit properties. They (defendant Nos.1 to 4) have no
manner of right, title, interest and possession over the suit properties.
But, without having their any interest in the suit properties, when they
(defendant Nos.1 to 4) created disturbances in the peaceful possession of
the plaintiffs over the suit properties by cutting and removing the green
fence and standing trees from the same forcibly, then without getting
any way, they (plaintiffs) approached the Civil Court by filing the suit
vide C.S. No.10 of 2006 against the defendant Nos.1 to 4 by arraying the
State and the Tahasildar as proforma defendant Nos.5 & 6 praying for
restraining the defendant Nos.1 to 4 permanently and their successors as
well as their agents from interfering with the peaceful possession of the
plaintiffs over the suit properties and also for restraining them
(defendant Nos.1 to 4) from cutting down the green fence and standing
trees over the suit properties along with other reliefs, to which, they
(plaintiffs) are entitled for without praying for any relief against
defendant Nos.5 & 6 (State and Tahasildar).
6. Having been noticed from the Trial Court in C.S. No.10 of 2006,
the defendant Nos.3 to 6 were set ex parte without filing any written
statement. But, whereas the defendant Nos.1 & 2 challenged the suit of
the plaintiffs by filing their joint written statement denying the
averments made by the plaintiffs in their plaint after taking their stands
inter alia therein that, the suit of the plaintiffs is not maintainable. The
suit of the plaintiffs is bad for mis-joinder and non-joinder of parties.
According to the defendant Nos.1 & 2, they (defendant Nos.1 & 2) are
the sons of Mathuri Das. Their father was possessing suit Plot
No.251/550 and their father had dug a tank on the same. The suit Plot
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No.251/550 is adjacent to their homestead land. They have planted
valuable trees on the same and they are using suit Plot No.251/550 as
their threshing floor. The plaintiffs are not in possession over the suit
properties and they (plaintiffs) have no right to possess the suit
properties. According to them (defendant Nos.1 & 2), the suit properties
have been recorded under Government Khata by the Settlement
Authorities in the name of the Government/State and one encroachment
case vide Encroachment Case No.743 of 1996 was initiated against them
(defendant Nos.1 & 2) for their possession over the suit properties and
they (defendant Nos.1 & 2) have deposited penalty before the
Government for their possession to the suit plots. They (defendant Nos.1
& 2) have no knowledge at all about the initiation of any encroachment
case vide Encroachment Case No.19 of 2006 & 20 of 2006 in respect of
the suit properties by the defendant No.6 (Additional Tahasildar,
Ersama) against the plaintiffs. So, the plaintiffs have no cause of action
to file the suit against them (defendant No.1 & 2). As they (defendant
Nos.1 & 2) are in possession over the suit properties and they plaintiffs
have no possession at all over any portion of the suit properties, for
which, the plaintiffs are not entitled for the relief of injunction as prayed
for by them (plaintiffs) against them (defendant Nos.1 & 2). Therefore,
the suit of the plaintiffs is liable to be dismissed.
7. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 6 (six) numbers of issues were framed by
the Trial Court in C.S. No.10 of 2006 and the said issues are:-
Issues
1. Whether the suit is maintainable in law?
2. Whether the plaintiffs have any cause of action to file the
suit?
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3. Whether the plaintiffs are entitled to an order of
permanent injunction over the suit land restraining the
defendants No.1 to 4 from interfering in their possession?
4. Whether the suit is bad for mis-joinder and non-joinder of
necessary parties?
5. Whether the suit is barred by law of limitation?
6. What other reliefs the plaintiffs are entitled to?
8. In order to substantiate the aforesaid relief sought for by the
plaintiffs against the defendant Nos.1 to 4, they (plaintiffs) examined
two witnesses from their side including the plaintiff No.1 as P.W.1 and
relied upon 5 (five) documents on their behalf vide Exts.1 to 5. But, the
defendants including defendant Nos.1 & 2 neither examined any witness
from their side nor proved any document on their behalf, though, they
(defendant Nos.1 & 2) participated during trial of the suit by cross-
examining the witnesses of the plaintiffs.
9. After conclusion of hearing and on perusal of the materials,
evidence and documents available on Record, the Trial Court answered
issue Nos.1, 2, 3 and 6 in favour of the plaintiffs and against the
defendant Nos.1 to 4 without answering issue No.4 & 5, as the said issue
Nos.4 & 5 were not pressed by the parties during trial of the suit.
10. Basing upon the findings and observations made by the Trial
Court in issue Nos.1, 2, 3 and 6 in favour of the plaintiffs and against the
defendant Nos.1 to 4, the Trial Court decreed the suit of the plaintiffs on
contest against the defendant Nos.1 & 2 and ex parte against the
defendant Nos. 3 to 6 and restrained the defendant Nos.1 to 4
permanently from interfering into the peaceful possession of the
plaintiffs over the suit properties and also from removing green fence
and trees from the suit properties vide its judgment and decree dated
05.07.2008 and 14.07.2008 respectively assigning the reasons that,
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though the plaintiffs have not been able to prove their ownership and
title over the suit properties, but they have been able to prove their
possession over the suit properties, for which, perpetual injunction is
granted against the defendant Nos.1 to 4 preventing them (defendant
Nos.1 to 4) from interfering into the peaceful possession of the plaintiffs
over the suit properties. Because, suit of the plaintiffs for permanent
injunction against the defendant Nos.1 to 4 is maintainable under law
and they (plaintiffs) have the cause of action to file the suit against them
(defendant Nos.1 to 4).
11. On being dissatisfied with the aforesaid judgment and decree
dated 05.07.2008 and 14.07.2008 respectively passed in C.S. No.10 of
2006 in favour of the plaintiffs and against the defendant Nos.1 to 4, the
defendant Nos.1 & 2 challenged the same by preferring the First Appeal
vide R.F.A. No.38 of 2011 being the Appellants against the plaintiffs by
arraying them (plaintiffs) as Respondent Nos.1 to 2(d) and also arraying
the defendant Nos.3 to 6 as Respondent Nos.3 to 6.
12. After hearing from both the sides, the First Appellate Court
dismissed the First Appeal vide R.F.A. No.38 of 2011 of the defendant
Nos.1 & 2 concurring the findings and observations made by the Trial
Court vide its judgment and decree against defendant Nos.1 to 4
including defendant Nos.1 & 2.
13. On being aggrieved with the aforesaid judgment and decree of the
dismissal of the First Appeal vide R.F.A. No.38 of 2011 of the defendant
Nos.1 & 2, the defendant No.1 Prafulla Das (who was the appellant No.1
in the First Appeal vide R.F.A. No.38 of 2011) preferred this Second
Appeal being the sole Appellant against the plaintiffs arraying them
(plaintiffs) as Respondent Nos.1 to 5 and arraying defendant No.2 as
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Respondent No.8 and also arraying other defendants including State and
Tahasildar as Respondent Nos.6 to 10.
14. This Second Appeal has been admitted on formulation of
substantial questions of law i.e.:-
(i) Whether the lower appellate court is right in deciding the
factum of possession of the suit land simply basing upon the
endorsement made in the record of right with regard to
possession of it?
(ii) Whether the lower appellate court is right in saying that
despite of coming to a conclusion that in the year 1996, the
plaintiffs were dispossessed by the defendants, they can maintain
a suit for injunction being the prior trespassers.
15. I have already heard from the learned counsels for the Appellant
and Respondent Nos.1 to 5 along with the learned Additional
Government Advocate for Respondent Nos.9 & 10.
16. On perusal of the judgments and decrees passed by the Trial Court
and the First Appellate Court, it appears that, the Trial Court and the
First Appellate Court both have come to a conclusion that, though
undisputedly the suit properties are the properties of the Government
and the said properties have been recorded by the Settlement Authorities
in the name of the Government as per the R.o.R. vide Ext.1 under Khata
No.107, but the possession of the plaintiff No.2 has been noted in the
remarks column of the R.o.R. vide Ext.1 in respect of Plot No.251/550
and the un-assailed oral testimonies of the witnesses of the plaintiffs
corroborating their pleadings is establishing the possession of the
plaintiffs over the suit properties, which is ultimately keeping the
defendant Nos.1 to 4 away/out from the possession of the suit properties.
For which, the Trial Court passed the decree of injunction against the
defendant Nos.1 to 4 restraining them (defendant Nos.1 to 4) from
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interfering into the peaceful possession of the plaintiffs over the suit
properties, to which, the First Appellate Court also concurred.
17. Undisputedly, none of the defendants including the defendant
Nos.1 & 2 has adduced any oral or documentary evidence from their
side during trial of the suit vide C.S. No.6 of 2010 in support of their
pleadings in respect of their claim of possession over the suit properties.
Now it will be seen, when undisputedly, the plaintiffs are not the
owners of the suit properties, but the State (defendant No.5) is the owner
of the suit properties, then at this juncture, whether on the basis of
possession of the plaintiffs over the suit properties, the suit for
permanent injunction filed by them (plaintiffs) vide C.S. No.06 of 2010
against the defendant Nos.1 to 4 is maintainable under law.
18. On that aspect, the propositions of law has already been clarified
by the Hon'ble Courts and Apex Court in the ratio of the following
decisions:-
(i) 2005 (II) OLR 330--Pragnya Rout Vrs. Hemaprava Ray
and others--Paragraph 6--Possession--As between two persons,
who are unable to make out valid title, one, who is in possession and
who has been in possession for several years, if dispossessed by
another, who had no better title than the person whom he dispossess,
the person who was in possession earlier is entitled to be restored to
possession.
(ii) 2023 (2) Civil Court Cases (SC) 322--Shiv Shankar and
another Vrs. H.P. Vedavyasa Char--Paragraph 30--Possession--
Fighting between two persons without title,
when facts disclose no title in either party at the relevant
time, prior possession alone decides right to possession of land in
assumed character of owner against all the world except against
rightful owner.
19. Here in this suit land, when there is fighting between two parties
i.e. plaintiffs and defendant Nos.1 to 4 for the possession of the suit
properties without having any title on the same with any one among
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them, then in view of the propositions of law enunciated in the ratio of
the aforesaid decisions, the suit of the plaintiffs for permanent injunction
simpliciter against the defendant Nos.1 to 4 cannot be held as not
maintainable under law, even though undisputedly State (defendant
No.5) is the owner of the suit properties, when no relief has been sought
for by the plaintiffs against the State (defendant No.5, owner of the suit
properties).
20. It is the very fundamental in civil law that, issues of civil matters
are to be decided on a balance of probabilities.
On that aspect propositions of law has already been clarified by
the Apex Court in the ratio of the following decision:-
100 (2005) CLT (S.C.) 147--Sona Bala Bora & others Vrs.
Jyotirindra Bhatacharjee (Para No.21)--Suit--Issues of Civil
Matter--To be decided on a balance of probabilities.
21. As per the clarified propositions of law made by the Apex Court
in the ratio of the aforesaid decision, in a civil trial, like the trial of the
suit at hand, the case of which side shall become more probable; the case
of that side shall be acceptable under law.
22. Here in this suit at hand, the plaintiffs have adduced evidence by
examining two witnesses from their side including the plaintiff No.1 and
they have relied upon documents vide Exts.1 to 5 including the R.o.R.
vide Ext.1 corroborating their pleadings regarding their possession over
the suit properties on the basis of undisputed noting of possession of the
plaintiff No.2 in the remarks column of the R.o.R. of the suit properties
vide Ext.1 in respect of Plot No.251/550, but though, the defendant
Nos.1 & 2 filed their joint written statement denying the averments
made by the plaintiffs in their plaint claiming their possession over the
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suit properties and though the said defendant Nos.1 & 2 had participated
during trial of the suit by cross-examining the witnesses of the plaintiffs,
but none of the defendants including the defendant Nos.1 & 2 had
adduced any oral or documentary evidence from their side. So, as per
law, the claim of possession of the defendant Nos.1 & 2 over the suit
properties cannot at all be held to be established merely on the basis of
the pleadings of the defendant Nos.1 & 2 over the suit properties in their
joint written statement, unless their pleadings are proved by them
(defendant Nos.1 & 2) either by adducing evidence from their side or by
bringing materials into the record from the mouth of the witnesses of the
plaintiffs in support of their claim of possession over the suit properties
through cross-examination.
23. The defendant Nos.1 and 2 have not been able to assail the well
corroborated testimonies of P.Ws.1 & 2 in support of the possession of
the plaintiffs over the suit properties. For which, without adducing any
evidence from the side of the defendant Nos.1 & 2 in support of their
pleadings made in their written statement, it cannot at all be held that,
their pleadings regarding their possession over the suit properties has
been proved or established. Because, as per law, pleadings itself are not
evidence and a party, who pleads, he/she is to prove the same.
24. On this aspect, the propositions of law has already been clarified
in the ratio of the following decisions:-
(i) 2011 (II) OLR (S.C.) 278--Rangammal Vrs. Kuppuswami
and another--Paragraph 13--Pleading--Party, who pleads has
also to prove his case.
(ii) 2021 (4) Civil Court Cases 284 (S.C.)-- Placido Fransisco
Pinto and another Vrs. Jose Fransisco Pinto and another--
Paragraph 23--CPC, 1908--Order 6 Rule 2--Pleadings--To
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contain a statement in a concise form of material facts, but not the
evidence by which they are supposed to be proved.
(iii) 2015 (II) CLR 395--Jagabandhu Rout Vrs. Collector,
Kendrapara and others--Para 7--Pleading--Whether constitutes
proof--Pleading is not proof.
25. As per Order No.16 dated 18.08.2023, the hearing of I.A. No.661
of 2023 filed by the Appellant under Order 41 Rule 27 of the CPC for
adducing additional evidence was postponed to be considered at the time
of hearing of the Second Appeal and accordingly, the I.A. No.661 of
2023 has already been heard with this Second Appeal and that I.A.
No.661 of 2023 is to be disposed of in this judgment with this Second
Appeal.
26. In I.A. No.661 of 2023 under Order 41 Rule 27 of the CPC, 1908
filed by the Petitioner (Appellant), he (Petitioner/Appellant) has prayed
for acceptance of R.o.R. of Khata No.107 (which has already been
exhibited as Ext.1 during trial of the suit) and notices in Encroachment
Case and R.I. report in Misc. Case No.142 of 2006 as additional
evidence in this Second Appeal.
It appears from the record that, this Second Appeal has been
preferred by the Appellant on dated 17.06.2014.
First Appeal vide R.F.A. No.38 of 2011 was disposed of on
19.03.2014.
The suit vide C.S. No.10 of 2006 was disposed of on 05.07.2008.
27. It is the settled propositions of law that, a party is not entitled to
produce additional evidence unless it shows that, the evidence, to which,
he is wanting to produce, the same could not be produced before the
Trial Court despite exercise of due diligence.
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It appears from the Record that, the R.o.R. of suit Khata No.107
has already been exhibited on behalf of the plaintiffs in the suit vide C.S.
No.10 of 2006 as Ext.1. So, further exhibiting that, R.o.R. vide Khata
No.107 in the Second Appeal does not arise.
The other documents, to which, the Appellant is wanting to
adduce as additional evidence, the said documents were very well
available with him (appellant) during trial of the suit vide C.S. No.10 of
2006. Though, the Appellant being the defendant No.1 had participated
in the suit and as well as in the First Appeal, but, he had not produced
the said documents either before the Trial Court or before the First
Appellate Court. That apart, even though, this Second Appeal was
preferred by him (appellant) on 17.10.2014, but he had not filed any
petition under Order 41 Rule 27 of the CPC with the memo of Second
Appeal praying for adducing additional evidence, but more than 8
(eight) years after filing of the Second Appeal, he has filed the I.A.
No.661 of 2023 praying for adducing additional evidence.
28. Under which circumstances/situations/conditions, a party will be
permitted to adduce additional evidence has already been clarified in the
ratio of the following decisions:-
(i) 2023 (3) CCC 287 (H.P.)--Baba Sarabojot Singh
Bedi Vrs. Sada Ram--CPC, 1908--Order 41 Rule 27--
Production of Additional Evidence--A party is not entitled to
produce additional evidence, unless it shows that, the evidence
could not be produced before the Trial Court despite exercise
of due diligence.
(ii) 2012 (I) PLJ 94--Charan Singh & another Vrs.
Amar Singh & others others--CPC, 1908--Order 41 Rule
27--Additional Evidence--Second Appeal--Permissibility--
Litigation is pending since year 1986.
No such application for adducing additional evidence was
filed before Trial Court.
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No such application was also filed before the First
Appellate Court.
Present Second Appeal was filed in the year 1994.
Application was not filed along with the Appeal.
Application was filed after 12 (twelve) years of filing of the
Second Appeal. Held, Appellants have no right to adduce
evidence at this belated stage.
29. When the litigation between the parties is pending since 2006 and
when no such application for adducing additional evidence was filed by
the Appellant before the Trial Court, though he (appellant) being the
defendant No.1 had participated in the trial of the suit having the
possession of the documents (to which he is praying for adducing as an
additional evidence) with him and when no such application for
adducing additional evidence was filed in the First Appeal preferred by
him and when the present Second Appeal was filed by him in the year
2014 and when he (Appellant) had not filed the documents (to which he
is wanting to adduce as an additional evidence) at the time of filing of
the Second Appeal and when he (Appellant) has filed I.A. No.661 of
2023 under Order 41 Rule 27 of the CPC for adducing additional
evidence 8 (eight) years after filing of the Second Appeal, then at this
juncture, by applying the principles of law enunciated in the ratio of the
aforesaid decisions, the Appellant has no right to adduce additional
evidence at this belated stage of the Second Appeal.
Therefore, I.A. No.661 of 2023 filed by the Appellant under Order
41 Rule 27 of the CPC has no merit. The same is dismissed.
Accordingly, the I.A. No.661 of 2023 is disposed of finally.
30. When the defendant Nos.3 & 4 were set ex parte and when the
defendant Nos.1 & 2 have failed to prove their pleadings i.e. their any
possession over the suit properties by adducing evidence and when the
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claim of the plaintiffs i.e. their possession over the suit properties and as
well as absence of possession of the defendant Nos.1 to 4 over the suit
properties has become more probable for the reasons assigned above,
then at this juncture, it cannot at all be held that, the Trial Court and First
Appellate Court are not right in deciding the factum of possession of the
plaintiffs over suit properties basing upon the endorsement made in the
R.o.R. with regard to the possession of the plaintiffs No.2 along with
other evidence and holding the maintainability of the suit for injunction
filed by the plaintiffs against the defendant Nos.1 to 4.
Therefore, it cannot be held that, judgment and decree passed by
the Trial Court and First Appellate Court are erroneous. For which, the
question of interfering with the same through this Second Appeal filed
by the Appellant does not arise. So, there is no merit in this Second
Appeal filed by the Appellant. The same must fail.
31. In the result, Appeal filed by the Appellant is dismissed on
contest, but without cost.
The judgment and decree passed by the Trial Court and as well as
the First Appellate Court in favour of the plaintiffs against the defendant
Nos.1 to 4 are hereby confirmed.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
11th December, 2023//Utkalika Nayak//
Junior Stenographer
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack
Date: 11-Dec-2023 15:41:40
