Orissa High Court
(In The Matter Of An Appeal Under ... vs Bhaktabandhu Mohanta on 10 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.160 of 2012
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Bhaskar Chandra Mohanta .... Appellant
-versus-
Bhaktabandhu Mohanta .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. S. Sharma,
Advocate
on behalf of
Mr. B. Panigrahi,
Advocate
For Respondent - Mr. P.K.Swain,
Advocate
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :12.10.2023 :: Date of Judgment :10.11.2023
A.C. Behera, J. This Appeal has been preferred against the confirming
judgment.
The Appellant was the sole Plaintiff in C.S. No.75 of 2007 and the
Appellant in First Appeal vide R.F.A. No.26 of 2009). The Respondent
was the sole Defendant in the suit vide C.S. No.75 of 2007 and
Respondent in R.F.A. No.26 of 2009.
2. The suit of the Plaintiff was a suit for declaration of his possessory
title over the suit schedule property vide Khata No.48 Plot No.214
Ac.1.34 dec. (which is a tank) in Mouza-Sadangabahali under Ghatagaon
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police station in the District of Keonjhar and to injunct the defendant
along with his villagers permanently from creating any sort of disturbance
over his possession on that suit land.
3. The case of the Plaintiff as per his pleadings was that, the suit land
was an Anabadi land of the Government. His ancestors had put a ridge on
the said land for accumulation of water in order to use the same for
cultivation over their recorded properties vide Plot No.212 and 213 and
due to putting up of the ridge on the suit land, there was accumulation of
water on the same and ultimately the same became a tank. The Plaintiff is
rearing fish in the said suit tank and he is harvesting fish from that tank.
But, surprisingly, the Tahasildar, Patna, initiated an encroachment case
against him vide Encroachment Case No.01/03-04 projecting him
(plaintiff) as an encroacher of the suit tank and after disposal of that
encroachment case, Tahasildar realized fine and penalty from him.
Though, the villagers of his village Sadangabahali has no interest at all in
the suit tank situated on the suit land, but in the year 2001, the villagers of
Sadangabahali under the leadership of the Defendant created disturbance
in the peaceful possession of the plaintiff over the suit tank and forcibly
caught fish from that tank, for which, a proceeding under Section 107 of
the Cr.P.C. was initiated.
The villagers of Sadangabahali under the leadership of the
Defendant also caught fish from the suit tank in the year 2004. For which,
Plaintiff reported about the same before the local police. So, by
intervention of the police, his villagers and along with the Defendant had
given a writing before the police that, they will not create any sort of
disturbance in future in the possession of the Plaintiff over the suit land.
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But, on 14.04.2007, again the villagers of Sadangabahali under the
leadership of the Defendant tried to catch fish forcibly from the suit tank,
for which, again the Plaintiff intimated the same to the police, but the
police directed him to approach the Civil Court. So, the Plaintiff filed the
suit vide C.S. No.75 of 2007 against the Defendant praying for
declaration of his possessory title over the suit land and to injunct the
Defendant along with his villagers from creating any sort of disturbance
over his peaceful possession on the suit land along with the cost of the
suit and other reliefs, to which, he (plaintiff) is entitled for as the Court
deems it fit and proper.
4. The Defendant contested that suit of the Plaintiff denying all the
above averments made by the plaintiff in his plaint by taking his stands
therein that, the suit of the Plaintiff is not maintainable for non-joinder of
necessary parties. There is no cause of action for the Plaintiff to file the
suit. The specific case of the Defendant was that, the suit land is a
Government land. The Plot No.213 stands recorded in the name of one
Nirakar Mohanta, for which, the LRs. of the Nirakar Mohanta are the
necessary parties. According to him (defendant), the villagers of
Sadangabahali have/had been using the suit tank as public tank. The
Plaintiff cannot maintain the suit without impleading their villagers as
parties. Because, the suit tank is their communal property. For which, the
suit of the Plaintiff is not maintainable without complying the provisions
of Order 1 Rule 8 of the CPC. As such, the Plaintiff has no right, title,
interest and possession over the suit land. The villagers of Sadangibahali
have their community interest on the suit tank. All the villagers of
Sadangibahali are using the suit tank as their public tank. The villagers of
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Sadangabahali had excavated that tank in the year 1953. The name of the
suit tank is <Desopokhari=. Therefore, the Plaintiff cannot exercise his
individual/personal right over the suit tank and as well as over the suit
land. So, the suit of the Plaintiff is liable to be dismissed.
5. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether five numbers of issues were framed by the
Trial Court in C.S. No.75 of 2007 and the said issues are;
In order to substantiate the aforesaid reliefs sought for by the
Plaintiff against the Defendant, he (Plaintiff) examined two witnesses
before the Trial Court including him as P.W.1 and relied upon series of
documents from his side vide Exts.1 to 8. But, on the contrary the
defendant examined two witnesses from on his behalf including him as
D.W.1 without exhibiting any document from his side.
6. After conclusion of hearing and on perusal of the materials,
evidence and documents available on record, the Trial Court answered all
the issues against the Plaintiff giving observations that, the suit tank is a
communal property. The villagers of Sadangabahali has been using the
same as the public tank of the Government. For which, without the
compliance of the Provisions of Order 1 Rule 8 of the CPC and without
impleading the necessary parties, the suit of the Plaintiff is not
maintainable under law. The Plaintiff has also no right, title, interest and
possession over the same.
7. Basing upon the aforesaid findings and observations made by the
Trial Court in all the issues against the Plaintiff, the Trial Court
dismissed the suit of the Plaintiff on contest against the defendant vide its
judgment and decree.
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8. On being dissatisfied with the said judgment and decree of
dismissal of suit of the plaintiff vide C.S. No.75 of 2007 passed by the
Trial Court, he (plaintiff) challenged the same by preferring the First
Appeal vide R.F.A. No.26 of 2009 being Appellant against the Defendant
arraying him (Defendant) as Respondent.
9. After hearing, the First Appellate Court dismissed the said First
Appeal of the Plaintiff vide R.F.A. No.26 of 2009 and confirmed the
judgment of dismissal of suit of the plaintiff vide C.S. No.75 of 2007
passed by the Trial Court.
10. On being aggrieved with the judgment and decree of dismissal of
the First Appeal of the Plaintiff vide R.F.A. No.26 of 2009, he (Plaintiff)
preferred this Second Appeal being the Appellant against the Defendant
by arraying him (defendant) as Respondent.
11. This Second Appeal was admitted through formulation of
substantial question of law i.e.:-
<Whether, the first appellate court having found the
plaintiff to be under legal obligation to take steps under Order 1
Rule 8 of the Code of Civil Procedure ought to have given a
scope to the plaintiff to comply with the same by remanding the
matter to the court below for proceeding afresh from that
stage?=
12. I have already heard from the learned counsel for the Appellant and
Respondent both.
13. Undisputedly, the R.O.R. of the suit land vide Khata No.48 stands
in the name of the Government. The Kisam of the suit plot in the R.O.R.
is Jalasaya/tank. The name of that tank is Desapokhari.
The Plaintiff (P.W.1) has deposed in paragraph-15 of his
deposition by answering to the questions of the learned counsel for the
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Defendant that, <the villagers are using the tank situated on the suit land
for the purpose of bathing, to which, he has been seeing since his
childhood.=
14. The unassailed testimonies of the witnesses of the plaintiff is going
to show that, the villagers of the Sadangabahali have been using the tank
(situated on the suit land) for the purpose of their bathing and the
villagers are also catching fish from the suit tank. The cattles of all the
villagers of Sadangabahali are drinking water from that tank. The
villagers of Sadangabahali are also using the water of the suit tank for
their cultivation as per their necessities.
15. The natural resources like Air, Sea, water, tank and forest are the
gift of the nature. They should be made freely available to everyone
irrespective of the status of their lives. The State being a trustee is under
legal obligation to protect the natural resources. Because, the natural
resources are the nature's bounty. The said resources are meant for public
use. Those cannot be used for any private ownership or commercial
purposes.
16. On that aspect, the propositions of law has already been clarified in
the ratio of the following decisions:-
123 (2017) CLT 725- State of Orissa and another Vrs. Uma
Charan Sahu--Natural Resources of the State belong to public
Government being a trusty and legally bound to protect the same-
The said natural resources cannot be converted into any private
ownership.
When the suit tank is undisputedly situated on the Government land
and the name of that suit tank is Deshapokhari and when it is forthcoming
from the aforesaid evidence of the witnesses of the plaintiff and the
defendant that, the villagers of the Sadangabahali have/had been using the
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said tank as their communal tank and when it is the own admission of the
plaintiff that, he has been seeing from his childhood that, his villagers are
using the water of the suit tank for the purpose of their bathing and
cultivation, then at this juncture, it is safely concluded concurring the
observations of the Trial Court and as well as First Appellate Court that,
the suit land is the property of the Government and the tank on the same
called as Deshapokhari is a communal tank and public tank, which has
been using by the entire villagers of the Sadangabahali. So, the suit of the
Plaintiff for declaration of his possessory title and permanent injunction is
not maintainable without impleading the State Government and without
complying the provisions of Order 1 Rule 8 of the CPC, 1908.
(i) 2010 (II) CLR (SC) 98 and 2010 (3) CCC (SC) page-14 The
District Collector, Srikakulam and others Vrs. Bagathi Krishna
Rao and another--(Paragraph 4)- CPC, 1908--Order 1 Rule 94In
the suit claiming title over the forest land-State Government not
impleaded as party 3 non-joinder of necessary party being fatal 3 the
suit was not maintainable.
(ii) 2021 (2) OJR-371--Millan Kumar Giri & 12 others Vrs.
State of Odisha & 11 others--Suit for declaration of title over the
land4suit land has been recorded in the name of State under road
kisam in R.O.R. having been published on 10.10.1988, but suit has
been filed in the year 1995-Thus, such recording has been standing
for a long time before the time of institution of the suit. Without
complying of the provisions under Order 1 Rule 8 of the CPC, the
suit ought not to have been entertained by the Courts below. The
plaintiffs having not taken any step in this regard right from its
institution till disposal of the first appeal, the ultimate result as to
dismissal of the suit that, they are not entitled to the relief claimed
has to receive the seal of approval4Appeal dismissed.
17. Here in this suit at hand, the R.O.R. of the suit land was published
on 10.02.1977. The suit was filed by the Plaintiff in the year 2007. The
R.O.R. of the suit land has been continuing in the name of the State in all
the settlements including in the settlement of the year 1977.
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So, in view of the propositions of law enunciated in the ratio of the
aforesaid decisions of the Apex Court and Hon'ble Courts, the suit of the
plaintiff is not maintainable without impleading the State Government as
party and without complying the provisions of Order 1 Rule 8 of the
CPC, 1908.
18. The plaintiff has claimed possessory title over the suit land.
The law relating to possessory of title has already been clarified in
the ratio of the following decisions:-
(i) 2008 Supp. (II) OLR 642, 106 (2008) CLT 663 and 2008 (1)
CLR 607- Manorama Patra and another Vrs. Silla Sundari Patra
and others possessory title - land - possession simpliciter without proof
of hostile animus does not mature to the possessory title.
(ii) 2010 (4) Civil Law Times 428 (S.C.)-- 2011 (I) OJR (SC) 60
and (2010) 14 SCC--page 316- Chatti Konati Rao and others Vrs.
Palle Venkata Subba Rao--Paragraph 14-- Possessory title-- mere
possession does not ripen into possessory title until possessor holds
property adverse to the title of the true owner for the said purpose.
19. Here in this suit at hand, in nowhere, either in the plaint or in the
evidence, he (Plaintiff) has stated that, he has been possessing the suit
tank as the owner thereof denying the title of the true owner (State)
concerning hostile animus.
So, in view of the ratio of the decisions referred to (supra), the
claim of possessory title of the Plaintiff over the suit land is also not
entertainable under law.
20. As per the discussions and observations, when it is held that, the
suit of the Plaintiff is not entertainable under law for various reasons
assigned above, then at this juncture, the confirmation to the judgment
and decree of dismissal of the suit by the First Appellate Court in R.F.A.
No.26 of 2009 without remanding the same for compliance of the
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provisions of Order 1 Rule 8 of the CPC, 1908 cannot be held as
erroneous. For which, the question of interfering with the same through
this Second Appeal filed by the plaintiff does not arise. Therefore, there is
no merit in the Appeal of the Appellant, the same must fail.
In the result, the Appeal filed by the Appellant is dismissed on
contest against the Respondent, but without cost.
21. The judgment and decree of dismissal of the suit vide C.S. No.75
of 2007 passed by the Trial Court and confirmation of the same by the
First Appellate Court in R.F.A. No.26 of 2009 are hereby confirmed.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
10th November, 2023//Utkalika Nayak//
Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
RSA No.160 of 2012
