Remanded

Prithiviraj v. Collector

Orissa HC10 Jan 2019SA/136/1995

Case brief

AI extract

What is this about?

The High Court set aside an appellate court judgment that had reversed a partial suit decree. It remanded the matter for a de novo hearing, directing the appellate court to appoint a surveyor/engineer to ascertain the land's position as the advocate commissioner's report was flawed.

What did the court decide?

Judgment of appellate court set aside; matter remanded to appellate court for de novo hearing with appointment of a Survey Knowing Commissioner/Engineer.

Prithiviraj Vs Collector — Property and Title | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.136 of 1995

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From the judgment and decree dated 27.3.1995 and 11.4.1995 respectively, passed by Sri Subas Chandra Das, learned Civil Judge (Senior Division), Gunupur, in T.A. No.1 of 1994, reversing the judgment and decree dated 21.12.1993 and 06.01.1994 respectively, passed by Sri B.D. Mishra, learned Munsif, Gunupur, in T.S. No.26 of 1991.

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Prithviraj Mohapatra …. Appellant Versus Collector, Koraput (old) Rayagada (new) and others. …. Respondents For Appellant … Mr. S. S. Rao, Advocate. For Respondents … Mr. Swayambhu Mishra, ASC.

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A. K. RATH

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Date of hearing and judgment : 10.01.2019

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Dr. A.K.Rath, J Plaintiff is the appellant against reversing judgment in

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a suit for declaration that a canal need be excavated as per the map of the year 1959, to regulate the water from the original diversion wire till Raktaputi reservoir and damages.

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2. The case of the plaintiff is that he is the owner of the land appertaining to Khata No.15/31 and 15/86 of mouza

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Guburuguda in the district of Rayagada. The Chief Engineer, M.I. Division, Bhubaneswar and the Executive Engineer, M.I. Division, Rayagada, defendant nos.2 and 3 have constructed a reservoir nearby the land of the plaintiff. During rainy season, when the rain water is released from the reservoir, it used to pass through his lands, as a result of which, sand and silt is deposited on his lands. The lands became unfit for agricultural purpose. He approached the government officials for construction of a canal, so that the water from the reservoir can pass through the canal and the lands will be saved. With the factual scenario, he filed the suit after issuing notice to the defendants u/s.80 CPC.

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3. The defendants entered contest and filed written

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statement denying the assertions made in the plaint. According to defendants Raktaputi tank is an irrigation project, which had been constructed since last 43 years back. The tank is feeded by natural flow of water of the valley. The Government have no programme for construction of any new feeder canal.

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4. Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary. During pendency of the suit, learned trial court appointed an Advocate Commissioner to ascertain the position of

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the land and submit a report. The Commissioner submitted a report, Ext.2 stating therein that Raktaputi tank is in a lower level than the land of the plaintiff. On an anatomy of pleadings & evidence on record, learned trial court came to hold that plaintiff is not entitled to any damages. Learned trial court directed the defendants to allow flow of diversion wire water over Plot No.28 of Khata No.17 only. It decreed the suit in part. The unsuccessful defendants filed Title Appeal No.1 of 1994 before the learned Civil Judge (Senior Division), Gunupur, which was eventually allowed.

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5. This appeal was admitted on the following substantial question of law.

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“1) Whether the lower appellate Court has erred in reversing the judgment of Trial Court, without reversing the findings of Trial Court that there existed Nala over Plot No.28 of Khata-17 and the diversion, namely, Kharlingi Nala was constructed caused sand casting in the land of appellant ?

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1. Whether the appellate Court a final court of fact findings erred in law in reversing the judgment of Trial Court without findings with reason on all issues ?

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1. Whether the lower appellate court’s judgment and decree based on errors or record can be sustained.

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1. Whether the lower appellate court has erred in law in allowing the appeal in holding that appellant has no cause of action, when evidently pleading clearly discloses damage the lands of appellant and appellant raised his grievance before the Respondents but had no effect.”

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6. Criticizing the judgment, Mr. S.S. Rao, learned counsel

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for the appellant submits that report of the Commissioner is perfunctory. Learned trial court should have appointed a Survey Knowing Commissioner/Engineer to ascertain the position of the land, instead of Advocate Commissioner. He further submits that there is enough material on record to ascertain the damages. The courts below have committed illegality in not awarding for damages.

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7. Per contra, Mr. Swayambhu Mishra, learned ASC for the State submits that the Commissioner submitted a report stating inter alia that the water channel leading to Raktaputi tank is coming from upstream, i.e. from east to west. The channel is a feeder canal to Raktaputi tank and is a part of Kharlingi Nala by way of diversion. It is flowing over Plot Nos.41/1, 41/4, 41/5 of Khata No.19/31 in mouza Guburuguda. But it is not flowing over Plot No.28 of Khata No.17 of mouza Guburuguda. The Raktaputi tank is in a lower level than the land of the plaintiff. Accordingly, no compensation for damages has been awarded.

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8. On a scrutiny of the report of the Commissioner, it is evident that the Commissioner has mentioned Plot No.28 and Khata No.17 of the area. This Court fails to understand how an

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Advocate could identify the Plot and Khata number of the disputed plot in absence of an Amin. Reliance placed on the Commissioner’s report by the courts below is thoroughly misplaced. With regard to non-award for damages, as the plaintiff has not filed any appeal, hence he cannot claim compensation.

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9. In the wake of the aforesaid, the judgment of the appellate court is set aside. The matter is remitted back to the learned appellate court for de novo hearing. Learned appellate court shall appoint a Survey Knowing Commissioner/Engineer to ascertain the present position of the suit land of the plaintiff and proceed with the matter. In order to avoid further delay, the parties shall appear before the learned appellate court on 14.2.2019, on which date, learned appellate court shall fix a date of hearing and dispose of the appeal by end of June, 2019. The appeal is allowed to the extent indicated above. Since the appeal is remanded to the lower appellate court, this Court refrains from answering the substantial question of law.

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……………………….. DR. A.K.RATH, J

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Orissa High Court, Cuttack. Dated the 10^th January, 2019/Uks

Prithiviraj v. Collector

Case brief

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Prithiviraj v. Collector

Case brief

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