Orissa High Court
Procedure vs Siba Prasad Raju(Dead) And Others on 17 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.411 of 2001
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Ratnakar Sahoo(dead) and others .... Appellants
-versus-
Siba Prasad Raju(dead) and others .... Respondents
Appeared in this case:-
For Appellants : Mr. D.P. Mohanty, Advocate
For Respondents : Mr. S.S. Rao, Senior Advocate
assisted by Mr. B.K. Mohanty,
Advocate
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 03.01.2025 / date of judgment : 17.01.2025
A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellant in this 2nd appeal was the plaintiff before the trial
court in the suit vide T.S. No.09 of 1986 and respondent no.1 before the
1st appellate court in the 1st appeal vide T.A. No.10 of 1993.
3. The respondents in this 2nd appeal were the defendants before the
trial court in the suit vide T.S. No.09 of 1986 and appellants before the 1st
appellate court in the 1st appeal vide T.A. No.10 of 1993.
The suit of the plaintiff(appellants in this 2nd appeal) against the
defendants(respondents in this 2nd appeal) vide T.S. No.09 of 1986 was a
suit for declaration, confirmation of possession and for permanent
injunction.
4. The suit properties are Hal Plot No.2359 under Hal Khata No.475
Ac.0.06 decimals, which corresponds to part of Sabik Plot No.769 under
Sabik Khata No.184.
As per plaintiff's case, the area of Sabik Plot No.769 under Sabik
Khata No.184 was Ac.0.52 decimals in Mouza Patnagarh and the said
Ac.0.52 decimals properties were the ancestral properties of the plaintiff,
in which, the father of plaintiff, i.e., Dharanidhar Sahoo along with two
brothers of the father of the plaintiff, i.e., Sridhar Sahoo and Gouri Sahoo
were the joint owners.
Out of that Ac.0.52 decimals of Sabik Plot No.769, Dharanidhar
Sahoo, Sridhar Sahoo and Gouri Sahoo sold Ac.0.16 decimals of land to
the predecessors of the defendants, i.e., Rama Raju and Narayan Raju by
executing and registering sale deed dated 29.10.1954 and delivered
possession thereof. After selling Ac.0.16 decimals of land from Sabik
Plot No.769 to the predecessors of the defendants, the remaining Ac.0.36
decemals of that Sabik Plot No.769 remained with Dharanidhara Sahoo,
Sridhar Sahoo and Gouri Sahoo.
When Rama Raju and Narayan Raju died leaving behind the
defendants as their successors, then, the defendants became the owners of
the above purchased Ac.0.16 decimals of land from Sabik Plot No.769 by
their predecessors, i.e., Rama Raju and Narayan Raju and
they(defendants) have been possessing that Ac.0.16 decimals of land
jointly. The said Ac.0.16 decimals has become Hal Plot No.2359 Ac.0.16
decimals in the Hal RoR under Hal Khata No.475, which has been
recorded jointly in the names of the defendants.
When, after selling Ac.0.16 decimals of land from Sabik Plot
No.769, the predecessors of the plaintiffs, i.e., Dharanidhar Sahoo,
Sridhar Sahoo and Gouri Sahoo were the joint owns and in possession
over rest Ac.0.36 decimals of land of Sabik Plot No.769,
they(Dharanidhar Sahoo, Sridhar Sahoo and Gouri Sahoo) partitioned
their said Ac.0.36 decimals of land of Plot No.769 along with their other
joint properties between them and in such partition, the above Ac.0.36
decimals of land of Sabik Plot No.769 had fallen in the share of the father
of the plaintiff, i.e., Dharanidhar Sahoo. Accordingly, Dharanidhar Sahoo
became the exclusive owner over the said Ac.0.36 decimals of land of
Sabik Plot No.769.
After partition, the Hal settlement RoR in respect of the said
Ac.0.36 decimals of land of Sabik Plot No.769 was published exclusively
in the name of Dharanidhar Sahoo(father of the plaintiff) under Hal
Khata No.458 Plot No.2360 Ac.0.36 decimals.
When Dharanidhar Sahoo died leaving behind the plaintiff as his
only successor, then, the above Ac.0.36 decimals of land of Hal Plot
No.2360 devolved upon the plaintiff and as such, the plaintiff is the
exclusive owner of Ac.0.36 decimals of land of Hal Plot No.2360 and
he(plaintiff) had/has been possessing the same.
When, on dated 20.10.1985, the defendants created disturbances in
the possession of the plaintiff over his Hal Plot No.2360 disclosing that,
the Map area of their Hal Plot No.2359 is covering Ac.0.06 decimals area
of Hal Plot No.2360 of the plaintiff, for which, he(plaintiff) measured the
Map area of Hal Plot Nos.2359 and 2360 through an Amin and compared
the same with the recorded areas thereof in the respective Hal RoRs as
well as with the filed position and came to know that, though he
(plaintiff) is in possession over Ac.0.36 decimals of land of Hal Plot
No.2360 as per recorded area thereof in the Hal RoR, but, in the Hal
village Map, the area of that Hal Plot No.2360 has been reduced for
Ac.0.06 decimals and the area of that Hal Plot No.2360 in the present Hal
village Map has become Ac.0.30 decimals and that Ac.0.06 decimals
area of Hal Plot No.2360 have been mixed with the Map area of Hal Plot
No.2359 of the defendants.
Likewise, the defendants are in possession over Ac.0.16 decimals
of land of Hal Plot No.2359 and the recorded area in the Hal RoR of that
Hal Plot No.2359 is Ac.0.16 decimals, but, in the Hal village Map, the
area of that Hal Plot No.2359 has become Ac.0.22 decimals, which is
Ac.0.06 decimals excess than the recorded area of that Hal Plot No.2359.
Accordingly, the reduced Ac.0.06 decimals area of Hal Plot No.2360 has
been mixed with the Map area of Hal Plot No.2359, for which,
erroneously, the Map area of Hal Suit Plot No.2359 has become Ac.0.22
decimals instead of Ac.0.06 decimals and the Map area of Hal Plot
No.2360 has become to Ac.0.30 decimals instead of Ac.0.36 decimals.
So, he (plaintiff) approached the civil court by filing the suit vide T.S.
No.09 of 1986 against the defendants praying for declaration of his right,
title and interest only in respect of Ac.0.06 decimals area in the Hal Map
of Hal Plot No.2359 and to confirm his possession thereon and to injunct
the defendants permanently from creating any sort of disturbances in
respect of the said Ac.0.06 decimals excess area of Hal Map of Hal Plot
No.2359 than its recorded area.
5. Having been noticed from the trial court in the suit vide T.S. No.09
of 1986, the defendants contested the same by filing their written
statement denying the averments made by the plaintiff in his plaint taking
their stands therein that, they(defendants) have been possessing the entire
Map area of Hal suit Plot No.2359 since the date of their purchase, i.e.,
since 29.10.1954 and accordingly, they(defendants) have title and
possession over the same, but, the plaintiff has filed the suit on false and
imaginary grounds in order to harass them(defendants), for which, there
is no merit in the suit of the plaintiff. The same is liable to be dismissed
against them(defendants).
6. Basing upon the aforesaid pleadings and matters in controversies
between the parties altogether eight numbers of issues were framed by
the trial court and the said issues are:-
ISSUES
i. Whether the suit is maintainable?
ii. Whether there is any cause of action to file the suit?
iii. Whether the plaintiff is the rightful owner and in a
peaceful possession over the suit land?
iv. Whether the defendants are in peaceful possession over
the suit land on the strength of registered sale deed dated
29.10.1954 and they have perfected their right and title
by way of adverse possession?
v. Whether the suit is under-valued?
vi. Whether the plaintiff is entitled to get any relief as
prayed for?
vii. Whether the suit is bad for non-joinder of necessary
parties? and
viii. Whether the suit is barred by law of limitation?
7. In order to substantiate the aforesaid reliefs sought for by the
plaintiff against the defendants in the suit vide T.S. No.09 of 1986, the
(plaintiff) examined four numbers of witnesses on his behalf including
him as P.W.1 and relied upon the documents vide Exts.1 to 4/a including
report of the Amin as Ext.4.
On the contrary, in order to nullify/defeat the suit of the plaintiff,
the defendants also examined four numbers of witnesses from their side
including defendant no.2 as D.W.4.
8. After conclusion of hearing of the suit vide T.S. No.09 of 1986 and
on perusal of the materials, documents and evidence available in the
record, the trial court answered all the issues in favour of the plaintiff and
against the defendants.
9. Basing upon the findings and observations made by the trial court
in all the issues in favour of the plaintiff and against the defendants, the
trial court decreed the suit of the plaintiff vide T.S. No.09 of 1986 on
contest against the defendants as per its judgment and decree dated
11.10.1993 and 11.11.1993 respectively and declared the right, title and
interest of the plaintiff in respect of Ac.0.06 decimals area of Hal Plot
No.2359 in the Hal Map and confirmed his possession on the same and
restrained the defendants from creating any sort of disturbances in the
peaceful possession of the plaintiff thereon assigning the reasons on the
basis of the report of the Amin(P.W.4) vide Ext.4 and his evidence that,
after selling Ac.0.16 decimals of land from Sabik Plot No.769 out of
Ac.0.52 decimals of land to the defendants on dated 29.10.1954 by the
predecessors of the plaintiff, the plaintiff is the owner and in possession
over the remaining Ac.0.36 decimals of land of Sabik Plot No.769, which
has become Hal Plot N.2360 in the Hal RoR under Hal Khata No.458,
but, the map area of Hal Plot No.2360 has become Ac.0.30 decimals
instead of Ac.0.36 decimals, whereas the map area of Hal Plot No.2359
under Hal Khata No.475 has become Ac.0.22 decimals instead of
Ac.0.16 decimals, for which, the map area of Hal Plot No.2359 in the Hal
Map has been erroneously prepared mixing Ac.0.06 decimals area of Hal
Plot No.2360 of the plaintiff with the same, in which, the plaintiff is the
owner, but, defendants are not the owners of the same, for which, the
defendants have no interest on the same.
10. On being dissatisfied with the aforesaid judgment and decree dated
11.10.1993 and 11.11.1993 respectively passed in T.S. No.09 of 1986 by
the trial court in favour of the plaintiff and against the defendants,
they(defendants) challenged the same by preferring the 1 st appeal vide
T.A. No.10 of 1993 being the appellants against the plaintiff arraying
him(plaintiff) as respondent.
11. After hearing from both the sides, the 1st appellate court allowed
that 1st appeal vide T.A. No.10 of 1993 of the defendants and set aside
the judgment and decree passed by the trial court and dismissed the suit
of the plaintiff vide T.S. No.09 of 1986 discarding/rejecting the evidence
of the Amin (P.W.4) as well as his report vide Ext.4 as per its judgment
and decree dated 03.08.2001 and 28.08.2001 respectively assigning the
reasons in paragraph no.11 of that judgment and decree of the appellate
court that, "when the Amin, i.e., P.W.4 has stated in his evidence that, as
he did not find any fixed point and started his measurement from the
neighbouring house not from the road or temple or any permanent
structure or old tree etc., for which, his evidence and his report cannot be
held to be accurate and his report vide Ext.4 could not have been relied
on and when the evidence of the Amin (P.W.4) and his report vide Ext.4
have become inadmissible on the ground of making measurement
without any fixed point, for which, the 1st appellate court set aside the
judgment and decree of the trial court and dismissed the suit of the
plaintiff."
12. On being aggrieved with the aforesaid judgment and decree dated
03.08.2001 and 28.08.2001 respectively passed by the 1st appellate court
in T.A. No.10 of 1993 in favour of the defendants and against the
plaintiff, he(plaintiff) challenged the same by preferring this 2nd appeal
being the appellant against the defendants arraying them(defendants) as
respondents.
13. This 2nd appeal was admitted on formulation of the following
substantial question of law, i.e.:-
Whether the 1st appellate court is correct in ignoring the
report of the civil court Amin commissioner vide Ext.4
for setting aside the judgment and decree of the trial
court?
14. I have already heard from the learned counsel for the appellant and
learned counsel for the respondents.
15. It is the undisputed case of the parties that, the suit Hal Plot
No.2359 Ac.0.16 decimals under Hal Khata No.475 is in the name of the
defendants and its adjacent plot vide Hal Plot No.2360 Ac.0.36 decimals
under Hal Khata No.458 is in the name of the plaintiff and both Hal Plot
Nos.2359 and 2360 correspond to Sabik Plot No.769 Ac.0.52 decimals
under Sabik Khata No.184.
It is also the undisputed case of the parties that, the area of Sabik
Plot No.769 was Ac.0.52 decimals and the said Sabik Plot No.769 was
the ancestral properties of the plaintiff. The predecessors of the plaintiff
have sold Ac.0.16 decimals of land out of Ac.0.52 decimals from Sabik
Plot No.769 in favour of the predecessors to the defendants on dated
29.10.1954. The area of the Hal RoR of suit Hal Plot No.2359 under Hal
Khata No.475 in the names of the defendants is Ac.0.16 decimals, which
has been recorded correctly according to their purchase.
The area of Hal Plot No.2360 under Hal Khata No.458 in the
favour of the plaintiff is Ac.0.36 decimals, which has been recorded
correctly according to the title and possess of plaintiff.
The plaintiff is in possession over entire Ac.0.36 decimals areas of
his Hal Plot No.2360. The defendants are in possession over entire
Ac.0.16 decimals areas of their Hal Plot No.2359.
The dispute between the plaintiff and the defendants is that, the
areas of Hal Plot Nos.2359 and 2360 in the Hal village Map have not
been prepared inconformity with the areas in the Hal RoRs of the said
Hal Plot Nos.2359 and 2360.
16. According to the plaintiff, the Map area of suit Hal Plot No.2359
has become erroneously Ac.0.22 decimals instead of Ac.0.16 decimals
and likewise, the Map area of its adjacent plot vide Hal Map of Plot
No.2360 has become erroneously Ac.0.30 decimals instead of Ac.0.36
decimals.
An Amin(P.W.4) was deputed by the trial court in the suit for
measurement of the areas of suit Hal Plot No.2359 and Hal Plot No.2360
in the map as well as in the spot/field and to submit a report about the
same. Accordingly, Amin(P.W.4) had visited the spot for its
measurements and after measurement, he(Amin, P.W.4) submitted report
vide Ext.4 before the trial court stating that, the area of suit Hal Plot
No.2359 has enhanced for Ac.0.06 decimals in the Hal Map and the area
of the Hal Plot No.2359 in the Hal Map has become Ac.0.22 decimals
instead of its recorded area Ac.0.16 decimals in the Hal RoR. Likewise
the area in the Map of Hal Plot No.2360 has reduced for Ac.0.06
decimals, and the area of the same in the Hal Map has become Ac.0.30
decimals.
17. So, by taking into account the evidence of the Amin(P.W.4) and
his report vide Ext.4, the learned trial court decreed the suit of the
plaintiff, but, whereas, the learned 1st appellate court set aside the same
discarding/ignoring the report of the Amin vide Ext.4 assigning the
reasons that, when, Amin(P.W.4) himself has admitted in his deposition
that, he did not find the fixed point for the measurement, for which, his
report vide Ext.4 cannot be held to be accurate and the same could not be
relied upon for acceptance in order to pass any decree on the prayers of
plaintiff.
In this 2nd appeal, a question arises, whether the above findings of
the 1st appellate court discarding/ignoring the report of the Amin vide
Ext.4, on the ground of preparation of the same through measurement
without fixed point is sustainable under law.
18. The law regarding the evidentiary value of a report of Amin
through measurement like this suit/appeal at hand without fixed point has
already been clarified by the Hon'ble Courts in the ratio of the following
decision:-
(i) In a case between Sumitra Devi and another vrs.
Dinesh and others : reported in 2022(I) Civil Court
Cases-642 & 2022(3) CCC-38 (Uttararkhand) that,
measurement of the suit properties by the Amin on
being deputed as per Order-26, Rule-9 of the C.P.C.
without establishment of fixed point cannot be
acceptable under law.
19. Herein this suit/appeal at hand, when the Amin(P.W.4) has
deposed in his evidence that, no fixed point was established by him for
measurement of the suit Plot No.2359 and its adjacent Plot No.2360, then
at this juncture, in view of the principles of law enunciated by the
Hon'ble Courts in the ratio of the aforesaid decision, his report vide Ext.4
on the basis of measurement without fixed point cannot be acceptable
under law. For which, the findings and observations made by the learned
1st appellate court in paragraph-11 of its judgment in dismissing the suit
of the plaintiff setting aside the judgment and decree of the trial court
discarding/rejecting the Amin report vide Ext.4 cannot be held as
erroneous.
20. The 1st appellate court has set aside the entire judgment and decree
of the trial court on the sole ground, i.e., for the rejection of the report of
Amin vide Ext.4, as the judgment and decree of the trial court was passed
on the basis of the said Amin report vide Ext.4.
It is the settled law that, dismissal of suit for any irregularity in
Amin's report cannot be sustainable under law, because, as per law,
when, the report of the Amin is discarded/rejected, it is the proper course
for the court either to issue a fresh Amin or to remand the matter for re-
consideration or to pass an order for re-appointment of another Amin for
the same purpose.
21. On this aspect, the propositions of law has already been clarified
by the Hon'ble Courts and the Apex Court in the ratio of the following
decisions:-
(i) In a case between Laly Joseph@ Laly Sebastian vrs.
K.U. Francis- : reported in 2023(2) Civil Court Cases-
472(Kerala)- (D.B) (Para-10.)--What should be the
duty of the court on Amin Commissioner's report given
under Order-26, Rules-9, 10 and 14 of the C.P.C. that-
(1) Court can set aside commissioner's report, if
Court is totally dissatisfied with commissioner's report.
(2) Court can remit commission for further inquiry.
(3) Court can appoint a fresh commission without
setting aside the earlier commission report and
(4) Court can very well appreciate both the reports,
i.e., 1st and 2nd and decide accordingly at the time of
trial.
(ii) In a case between Yasin Gulab Shikalkar vrs. Maruti
Nagnath Aware and others : reported in 2023(2) Civil
Court Cases-674(Bombay) that, when the appointed
commissioner fails to present before the court, correct
picture prevails at the site, trial court itself is
empowered to appoint an another court commissioner
and there is no question of attracting principle of res
judicata.
(iii) In a case between R.V. Ganesa Naicker vrs. Painter
Selvaraj and another: reported in 2019(1) CCC-24 &
2018(I) Civil Court Cases-470 (Madras) that, while the
court expressing dissatisfaction on first commissioner's
report, court is expected to set aside first
commissioner's report for issuance of 2nd commission.
(iv) In a case between Benudhar Mohapatra and others
vrs. Collector-cum-District Magistrate, Nayagarh and
others : reported in 2018(I) Civil Court Cases-
662(Orissa)--In a suit for declaration and for
correction of map prepared in the settlement, there is no
impediment to appoint Amin Commissioner to ascertain
measurement of land.
(v) In a case between Ram Lal and others vrs. Salig Ram
and others : reported in 2019(I) CLR(S.C.)-825--The
dismissal of suit for any irregularity on the part of the
local commissioner, not justified, but, proper course for
the High Court either to issue a fresh Commissioner or
to remand the matter for reconsideration.
(vi) In a case between Vijay Singh vrs. Jamshed Ali and
others : reported in 2021(4) Civil Court Cases-
200(Delhi)--When there is dispute, i.e., whether the
disputed property falls within the Khasara as claimed
by the petitioner or when Khasara as claimed by the
respondent, in that case, one of the proper method for
ensuring a complete and just adjudication of said
dispute is by way of demarcation of property.
(vii) In a case between Jala Swamydas and others vrs.
Jadani Sumayun Raju : reported in 2006(1) Civil
Court Cases-73 (Andhara Pradesh)--That, without
setting aside the report of the 1st commissioner, a 2nd
commissioner for the self-same purpose cannot be
appointed.
(viii) In a case between Durgam Mangamma vrs. P. Mohan
and others : reported in 1991 Civil Court Cases-294
(Andhra Pradesh)--That, 2nd Commissioner under
Order-26, Rule-9 of the C.P.C. cannot be appointed for
the same purpose unless and until 1st report is
expunged.
(ix) In a case between Ram Lakhan and another vrs.
District Judge and others : reported in 1993 Civil
Court Cases-332 (Allahabad)--Second Commissioner
as per Order-26, Rule-9 of the C.P.C. can be appointed
when in the opinion of the court, report of 1st
Commissioner is insufficient or it is desirable to obtain
further details.
22. Here, in this suit/appeal at hand, the dispute between the parties
has arisen only due to the conflict between the recorded areas of Hal Plot
Nos.2359 and 2360 in the Hal RoR and the areas thereof in the Hal Map.
When in view of the ratio of the aforesaid decisions, the said
conflict between the parties cannot be ascertained by oral evidence
without appointment of survey knowing Amin commissioner and when
the trial court has passed the judgment and decree only on the basis of
Amin report vide Ext.4 and when the learned 1st appellate court set aside
the judgment and decree of the trial court discarding/rejecting the said
report of the Amin vide Ext.4 due to preparation of the same through
measurement without fixed point, then at this juncture, by applying the
principles of law enunciated in the ratio of the aforesaid decisions of
Hon'ble Courts and Apex Court, it should be the duty of the High Court
in this 2nd appeal to remand the matter, i.e., the suit vide T.S. No.09 of
1986 to the trial court for its adjudication afresh after setting aside the
judgments and decrees of the trial court as well as 1st appellate court
directing the trial court to decide the same again after deputing a fresh
Amin commissioner for answering appropriate questions through its
fresh report giving them(parties) liberties for making necessary
amendments, if requires, in their respective pleadings in order to decide
their controversies between them finally in the suit for all times to come.
For which, there is justification under law for making interference
to a limited extent with the judgments and decrees passed by the trial
court and 1st appellate court through this 2nd appeal preferred by the
appellant(plaintiff). So, there is some merit in the 2nd appeal of the
appellant. The same is to be allowed in part.
23. In result, this 2nd appeal preferred by the appellant(plaintiff) is
allowed in part, but, without cost.
24. The judgments and decrees passed by both the courts, i.e., by the
trial court and 1st appellate court in T.S. No.09 of 1986 and T.A. No.10
of 1993 respectively are set aside.
25. The matter, i.e., suit vide T.S. No.09 of 1986 is remanded back
(remitted back) to the trial court, i.e., to the court of learned Munsif,
Patnagarh for its de novo and fresh trial by deputing a 2nd survey
knowing Amin commissioner for answering the appropriate questions put
to him concerning the real controversies between the parties giving
liberty to the parties for making necessary amendments, if any, in their
respective pleadings.
26. The trial court is directed to decide the suit vide T.S. No.09 of
1986 afresh on the basis of fresh evidence and fresh Amin report without
using the earlier evidence in any manner within a period of seven months
positively from the date of communication of this judgment to the trial
court.
27. The parties in this 2nd appeal are directed to appear before the trial
court on dated 31.01.2025 in the suit vide T.S. No.09 of 1986 for the
purpose of receiving the directions of that court as to further proceedings
of the suit.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 17th of January, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
