Dismissed
Konduru Laxmikantamm v. Tripati Pujari
Orissa HCRSA/234/2007
Case brief
from the order text
What is this about?
No.234 of 2007 12. 05.08.2016 This…
What the court decided
AI extract
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R.S.A. No.234 of 2007
12. 05.08.2016 This application has been filed under section 100 of t
he Code of Civil Procedure challenging the judgment and decree passed by the learned Additiona
l District Judge, Jeypore in R.F.A. No.20 of 2006 allowing the same and setting aside the judg
ment and decree passed by the learned Civil Judge (Jr. Division), Jeypore in T.S. No.22 of 200
0.
The appellants as the plaintiffs had filed the suit for declaration of
their right, title and interest over the suit land and for recovery of possession from the ha
nds of the defendants. The suit having been decreed granting the reliefs as prayed for; the un
successful defendants had carried the first appeal. The lower appellate court having allowed t
he appeal when has set aside the judgment and decree passed by the trial court, the present ap
peal thus has come to be filed by the unsuccessful plaintiffs.
2. For the sake of convenience, in order to bring in clarity and avoid confusion,
the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. Plaintiffs case is that they have been in possession of the suit land construc
ting their residential house over a portion of it and using the rest as their thrashing floor.
It is alleged that in the year 1988, the defendants without having any right, title and inter
est forcibly occupied a portion of the suit land and constructed a house despite protest from
the side of the plaintiffs. The matter being reported to the local Sarpanch, no such fruitful
result yielded. The local police being informed, it simply initiated a proceeding under sectio
n 107 of the Code of Criminal Procedure. The defendants thereafter having not vacated the suit
land ultimately the suit came to be filed.
The respondent-defendants contested the suit asserting the property to be thei
r ancestral property and to be in their possession since the time of their forefathers. They d
enied the allegation of having forcibly entered into the suit land. They also claimed ownershi
p over the suit land in asserting to be in possession of the same.
4. The trial court on the above rival pleadings framed six issues. First proceedi
ng to answer the issue relating to the right, title and interest over the suit land as claimed
by the plaintiffs as also the defendants, when admittedly neither side filed any documentary
evidence, the trial court having relied upon the oral evidence, found the plaintiffs to be the
lawful owners and the defendants as the encroachers. The lower appellate court being moved by
the unsuccessful defendants, has taken up the exercise of judging the sustainability of the f
indings of the court below. The suit being one for declaration of right, title and interest an
d for recovery of possession, the lower appellate court has gone to analyze the evidence let i
n by the plaintiffs in order to establish their case so as to be entitled to the reliefs claim
ed or not. In the absence of any document being filed in support of claim of title by the plai
ntiffs over the suit land and finding the suit property to be belonging to the Government, whi
ch has not been made a party the finding of the trial court on that score has been set-at-naug
ht.
Next going to scrutinize the oral evidence let in by the plaintiffs having arr
ived at the conclusion on fact that the plaintiff has failed to prove their possession for a l
ong time, the decree sending in favour of the plaintiffs has been set aside.
5. Learned counsel for the appellant submits that the lower appellate court witho
ut any justification has gone to set aside the finding of the trial court both on the count of
the title over the suit land as also the possession as recorded in favour of the plaintiffs.
According to him, when the defendants have failed to establish their claim of title in view of
the evidence on record as regards the possession of the suit land by the plaintiffs, the lowe
r appellate court ought not to have set aside the judgment and decree passed by the trial cour
t. These, according to him, are the substantial questions of law which surface in this case fo
r their certification for admission of the appeal.
6. Admittedly, the plaintiffs suit is with the prayer of declaration of right, ti
tle and interest and recovery of possession of the suit property from the defendants. Of cours
e the allegation has been made that on a fine morning, the defendants have forcibly occupied t
he suit land and constructed a house on a portion of it. The plaintiffs in order to be entitle
d to the reliefs as prayed for in the suit are under the obligation first to prove their title
. Admittedly, there remains no documentary evidence in support of the said claim. The lower ap
pellate court has found the property to be belonging to the State. The plaintiffs having not m
ade the State a party, such relief of declaration of right, title and interest cannot be grant
ed in their favour in the suit. For the purpose, the failure of the defendants to establish th
eir claim of title is of no avail to the plaintiffs. Thus, the finding of the lower appellate
court is not found to be a flawed one and it is held that the finding on this score by the tri
al court has rightly been set aside.
Now coming to the question of possession of the property, the lower appellate
court being the final court of fact upon analysis of oral evidence has entertained serious dou
bt on the said claim of the plaintiffs in finally saying that such claim of possession of the
suit property as laid by the plaintiffs is nothing but a myth. All the surrounding circumstanc
es and attending factors emerging from the evidence appear to have been taken note of while ap
preciating the evidence in finally arriving at the finding by the lower appellate court. It ha
s also gone to hold that the plaintiffs have failed to establish the identity of the suit land
by neither providing a sketch map nor showing the exact measurement of the disputed side when
the oral evidence on the score is also not pinpointed which remains uncountered here. So that
being an important aspect to touch the root, the trial court without directing the attention
towards that when had passed the decree which would have stood in-executable, the lower appell
ate court having taken that as an additional ground to non-suit the plaintiff has rather recti
fied the error respecting the settled law that the court should not pass a decree that would b
e in-executable.
7. In view of all these, the lower appellate court having non-suited the plaintif f, this Court is not in a position to find out any substantial question of law to be arising in this appeal.
8. Resultantly, the appeal stands dismissed. In the facts and circumstances, ther e would however be no order as to cost.
H
6
As recorded by the court registry
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