Partly allowed

Shri Shri Radha Madhab Jew Thakur Sebayatdar Marfatdar v. State of Orissa

Orissa HC10 Aug 2018RSA/490/2016

Case brief

AI extract

What is this about?

A second appeal against dismissed suit for declaration of title. The court found the lower appellate court erringly overlooked the Amin commissioner's report on point no.2. The second appeal was allowed, setting aside the impugned judgment, and the matter remitted for fresh appreciation of evidence.

What did the court decide?

Second appeal allowed; judgment and decree of lower appellate court set aside; matter remitted to lower appellate court to dispose of appeal afresh.

Shri Shri Radha Madhab Jew Thakur Sebayatdar Marfatdar Vs State of… — Partition | Orissa HC (2018)

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R.S.A. No.490 of 2016

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10.08.2018

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Heard learned counsel for the appellants and the learned Additional Government Advocate, who has already received the copy of the memorandum of appeal.

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The appeal is admitted on the following substantial question of law:

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“1.Whether the conclusion arrived at by the lower appellate Court with regard to the formulated point no.2 runs contrary to the report submitted by the Civil Court commissioner and his evidence and as such the answer to the same touching the merit of the claim of the plaintiffs can be said to be the outcome of perverse appreciation of evidence”

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Learned counsel for the appellants and the learned Additional Government Advocate for the respondent have been heard on the above substantial question of law as they have expressed their readiness and willingness in the matter.

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The second appeal has been filed against the judgment and decreed dated 19.09.2016 and 26.9.2016 respectively passed by the learned District Judge, Balasore in R.F.A. No.147 of 2013 confirming the judgment and decree dated 22.01.2013 and 13.9.2013 respectively passed by the learned Civil Judge, Balasore in Title Suit No.569 of 1994-I.

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For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have arraigned in the trial court.

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The plaintiffs’ suit for declaration of their right title over the suit land has been dismissed. The case of the plaintiffs is that the suit land which has been recorded under M.S. Plot No.663 under M.S.Khata No.520 of

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// 2 //

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Mouza-Mansing Bazar measuring an area Ac.0.23 decimals corresponds to the land under C.S. Plot No.6 under C.S. Khata No.8 of Mouza-Akatpur and is a part of the same. it is their further case that in the M.S. settlement records, the suit land has been wrongly recorded in the name of the State under Anabadi Khata. The trial court has dismissed the suit on the ground that the same is barred by virtue of the provision of section 42 of the Orissa Survey and Settlement Act as has not been filed within a period of three years since the date of publication of the record of right in the M.S. Settlement. Said finding has however been turned down by the lower appellate court. The lower appellate court has gone to dismiss the suit on merit coming to conclude at one stage that the evidence of Amin commissioner does not establish that M.S. Plot No.663, i.e, the suit plot corresponds to C.S. Plot No.6.

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Learned counsel for the appellants, placing the certified copy of the report of the Amin commissioner, which has been admitted in evidence and marked as Ext.I, submits that although it has been reported by the Amin commissioner that the suit land as described under M.S. Plot No.663 appertaining to M.S. Khata No.520 of MouzaMansing Bazar forms a part of Sabik Plot No.6 under Khata No.8 of Mouza-Akatpur and it has no connection with Sabik Plot No.3, the lower appellate court has overlooked the same in arriving at a conclusion and it has been said that the plaintiffs have failed to establish the nexus between the land under M.S. Plot No.663 with the

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land under C.S. Plot No.6. He, therefore, submits that above being the glaring omission on the part of the lower appellate court in not reading the important evidence and taking the same into consideration with other evidence on record and subjecting all those for examination, the result of the dismissal of the first appeal and confirmation of the dismissal of the suit is unsustainable.

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Learned Additional Government Advocate submits that the lower appellate court has rightly arrived at such conclusion by examining the evidence adduced from the side of the plaintiffs to establish the nexus and has correctly held the same to be insufficient to record a finding in favour of the case of the plaintiffs.

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Considering the submission made and on going through the report of the Amin commissioner under Ext.I with regard to the answer given to question no.1 posed to him as per the work memo, it appears that the same lost sight of the lower appellate court while recording the answer to point No.2 which has practically resulted the dismissal of the appeal leading to confirmation of the ultimate result of dismissal of the suit.

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In that view of the matter, the finding of the lower appellate court on that score cannot sustain. The substantial question of law is answered accordingly.

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Thus, when the lower appellate court has given the seal of approval to the dismissal of the suit of the plaintiffs on the above ground alone, the judgment and decree passed by the lower appellate court are hereby set aside and the matter is remitted back to the said court to hear

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and dispose of the appeal afresh for recording the answer to point No.2 upon proper analysis of evidence including the report of the Amin commissioner and his evidence on record and on their just and proper appreciation and in accordance with law.

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Viewing the age of the lis, in order to arrest further delay, parties are directed to appear before the lower appellate court 20.08.2018 to receive further instruction in the matter of hearing of the appeal, i.e, RFA No.47 of 2013.

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The RSA is disposed of accordingly.

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No order as to cost.

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The LCR be sent back forthwith.

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……………………..

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D. Dash, J.

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Basu

Shri Shri Radha Madhab Jew Thakur Sebayatdar Marfatdar v. State of Orissa

Case brief

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Shri Shri Radha Madhab Jew Thakur Sebayatdar Marfatdar v. State of Orissa

Case brief

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