This second appeal regarding eviction was dismissed. The High Court held that no substantial questions of law arose warranting admission, as the appellant failed to prove adverse possession and was estopped by admitting the defendant's permit status.
The second appeal was dismissed; no substantial question of law arose for admission.
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.
IN THE HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO. 68 OF 2016
From the judgment and decree dated 26.12.2015 and 07.01.2016 respectively passed by the learned Additional District Judge, Bhadrak in R.F.A. No. 305 / 50 of 2014 / 2008.
| Bana Kishore Mahakud | ……… VERSUS |
:::: Appellant. |
|---|---|---|
| Kanhu Charan Das & others | :::: Respondents. | |
| For Appellant | :::: | M/s. Goutam Mukherji, P. Mukherji, A.C. Panda, S.D. Ray, S. Priyadarsini, advocates. |
| For Respondents | :::: ……… |
M/s. U.C. Mishra, A. Mishra, A. Bal, J.K. Mahapatra, A. Khandal, B.P. Sasmal, advocates. |
PRESENT :
THE HON’BLE MR. JUSTICE D.DASH
------------------------------------------------------------------------------------------Date of hearing :: 17.05.2016 : Date of judgment: 12.08.2016 -------------------------------------------------------------------------------------------
The appellant in this appeal has called in question the judgment and decree passed by the learned Additional District Judge, Bhadrak in R.F.A. No. 305 / 50 of 2014 / 2008 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Basudevpur in C.S. No. 70 of 2005.
The respondent as the plaintiff had filed the suit for eviction of the appellant-defendant from the suit land and for arrear
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rent etc. The suit having been decreed, the unsuccessful defendant had carried the first appeal and as that has yielded no fruitful result for him, this second appeal has been filed under section 100 of the Code of Civil Procedure.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. The case of the plaintiff is that after getting suit land on lease on 02.05.1932, his father reclaimed it and continued to be in cultivating possession as before. The plaintiff with his other cosharers succeeded to the property in due course of time. The land has accordingly been recorded in the Major Settlement record in the name of the plaintiff and other co-sharers. There being an amicable arrangement amongst them, the plaintiff claims to have got the said land in his possession. It is stated that defendant was running a firewood shop on a piece of Government land near the suit land. But as due to the widening of road in the year 2000, the defendant’s shop was demolished, he requested the plaintiff to allow him to occupy the suit land on monthly rent basis for running that firewood shop and continue with said activity. Accordingly, an agreement was made on 07.03.2000 for the purpose, for two years therefrom. The defendant thus continued to occupy the suit land by paying a sum of Rs.10,000/- as security
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and monthly rent of Rs. 250/-. It is stated that after the expiry of the period, as the defendants did not vacate the suit land as agreed upon so the plaintiff having waited for some time, served a notice for vacation with the demand of payment of arrear dues.
The defendant contesting the suit pleaded that on the 15th day of the month of Kartika in the year 1962 despite the protest from the plaintiff, he filled up earth over the suit land and has been using same since then as the threshing floor and also running a tiffin stall and carrying firewood business. He claims to have acquired title over the suit land by way of adverse possession. It is stated that the name of the plaintiff has been erroneously recorded in the Major Settlement record although he has no right, title and interest over the suit land. The documents relied upon for the purpose by the plaintiff are said to be fabricated.
4. The trial court decided the issue of right, title, interest and possession over the suit land as claimed by the defendant in the negative holding that the defendant has no right, title, interest and possession over the suit land and has not acquired the same by way of adverse possession as per his case. The claim of the defendant over the suit land on that score has also been negated in C.S. No. 01 of 2005 being confirmed throughout. The trial court has found the defendant to have nothing to do with the suit land
and his possession over it has been found to be as that of a mere
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trespasser. Thus, the decree has been passed for eviction. The lower appellate court has affirmed all those findings. Such concurrent findings are now put to challenge in the second appeal.
5. Learned counsel for the appellant submits that the
followings are the substantial questions of law which arises in this
case:-
It is also submitted that prayer for eviction ought not to
have been entertained in the suit as laid. In view of the dismissal of
the Second Appeal No. 36 of 2016 confirming the judgment and decree passed by the courts below in dismissing the C.S. No. 01 of 2005 filed by this defendant as the plaintiff, the first two substantial questions of law as urged by the learned counsel for the appellant to be arising in the case do no more survive for consideration and for being answered.
6. Admittedly, in this case, the record of right in the Major
Settlement in respect of the suit land stands in the name of the
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plaintiff and his co-sharers. The defendant has not proved a scrap of paper as regards his claim of possession since the year 1962. The plaintiff claims that the defendant was permitted to occupy the suit land under Ext. B. The period of lease being for two years, the courts below have held it to be inoperative as being not duly registered as compulsorily required under the provision of section 18 (c) of the Registration Act. Although this Ext. B is an unregistered one and thus cannot be seen for the purpose that the land was leased out by the plaintiff to the defendant for that period and also on those terms and conditions as embodied therein, but the nature of possession of the land by the defendant can be seen to have been admitted as being so permitted by the plaintiff to remained as such in possession. He on that score is thus estopped from saying otherwise at any subsequent stage.
In view of the aforesaid, the submission of the learned counsel for the appellant that, there arises the substantial questions of law in this case so as to be certified for admission of the appeal cannot be countenanced to. Thus, the appeal does not merit admission.
12. Resultantly, the appeal stands dismissed. No order as to cost.
D. Dash, J.
Orissa High Court, Cuttack Dated, the 12th August, 2016/ Narayan .
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2 issues framed by the court
Whether the appeal merits admission involving questions of law regarding right, title, and possession over the suit land.
Whether the substantial questions of law raised challenge the findings on adverse possession and the registration validity of agreements.
2 provisions across 2 enactments
Bana Kishore Mahakud
Kanhu Charan Das & others
D. DASH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
