This appeal challenges the dismissal of a suit seeking declaration of illegal land conversion and permanent injunction to protect communal rights. The High Court affirmed the lower courts' finding that plaintiffs failed to prove usage since time immemorial and that the suit land was not specifically identifiable for granting reliefs.
No order as to cost.
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.
HIGH COURT OF ORISSA : CUTTACK RSA No.20 of 2013
In the matter of appeal under Section-100 of the Code of Civil Procedure challenging the judgment and decree passed by Additional District Judge, Balasore in RFA No.02/29 of 2011/2010.
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Sri Prasanna Kumar Sadangi & Others
:::: Appellants.
-:: VERSUS ::-
Govt. of Orissa, represented by the District Magistrate-cum-Collector,
Balasore & Others
Balasore & Others :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------For Appellants … M/s. B. Baug, M.R. Baug, S.Rath and P.K. Jena, Advocates For Respondents … Mr. R.K. Mohanty, Senior Advocate (for Respondent No.2) Mr. Maheswar Mohanty, Advocate (for Respondent No.10) M/s. Chittaranjan Pattnaik, S.C Padhi, S.Pati, S.K. Srichandan, Advocates (for Respondent No. 2) M/s. Pami Rath, Md. G. Madani, J.Mohanty and J.P. Behera, Advocates (for Respondent Nos. 4 to 8 & 10) Miss Samapika Mishra, Addl. Standing Counsel (for Respondent Nos. 1 to 3)
P R E S E N T :
THE HON’BLE MR. JUSTICE D.DASH
--------------------------------------------------------------------------------------- Date of Hearing: 29.09.2021 :: Date of Judgment: 26.10.2021
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D.Dash,J . The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure (for short, ‘the Code’) have challenged the judgment and decree passed by the learned Additional District Judge, Balasore in RFA No. 02/29 of 2011/2010.
2 . By the said judgment and decree, these Appellants who had filed the First Appeal under section 96 of the Code assailing the judgment and decree passed by the learned Civil Judge (Senior Division), Balasore in C.S. 366 of 2008 (T.S. No. 106/2001) have become unsuccessful. Thus, the suit filed by the them as the Plaintiffs has stood dismissed.
3 . 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.
4 . Plaintiffs’ case is that the vast area of land of about 20.71
decimals situated at mouza Srikrishnapur stood recorded under Rakhita
Khata bearing No. 172 in the record of 1926 settlement under kisam Puratana Patita. In the year 1969 in the major settlement it was recorded
under Anabadi Khata with kisam as Gochar. In the Revision Settlement of the year 1995 that Anabadi Khata assigned with kisam Gochar continued. It is further stated that out of the said land, some in the meantime was being used as Sarbasadharana Rasta and the land approximately extending to an area Ac.4.22 decimals was occupied by the local people belonging to Scheduled Tribe Community who have
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constructed their residential houses over there. With such user, the rest land of an area Ac.16.4 decimals remained as vast Patita land and the
villages, Srikrishnapur, Ganeswarpur and Madhipur were in the surroundings. It was to the southern side of Balaswar Mitrapur PWD road. From out of this, an area of about Ac.7.00 dec. was water logged.
From time immemorial, the villagers of Srikrishnapur and of other villages were using the southern part of the said land for grazing their cattles and 4.00 acre of land was being used by the people of the area as play ground and grazing field as also during the Jani Jatra by the general public. For all these reasons, the Zamindar had never transferred the said land and kept the same earmarked for the user of the general public. During pre-independent period, a vernacular school was established at Remuna and the students of that school were using the 4.00 acre of land as their playground. The school was upgraded to High School in the year 1944 along with the user of the land as playground. Panchayat Office being established at a little distance, the land was used by the village youths for playing Football, Volleyball and carrying out other related events and activities. In course of time in the year 1989, Remuna College was established and started functioning in the school building as it was then having no land of its own. Thus the Govt. then decided for erection of the College building. In view of that, 7.00 acre of land out of the aforesaid AC.16.49 decimals was earmarked for the same. This
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consists of that 5.00 acres of water logged land and 2.00 acres of down gradient land (Dhalu) situated at the middle portion. The land in course of time being de-reserved, on 08.05.1995, Chirasthayi (permanent) Patta was issued in favour of Remuna College by the Collector, Balasore. The land thus stood transferred in favour of Remuna College. That 7.00 acre
of land being water logged was still used as the grazing field. The local people did not object. Later on came with the donation from the people of the area a building for the college was constructed. However, 4.00 acres of land existing to the north. Ac.16.49 decimals of land continued to be used by the students of the College as their playground and accordingly, students were carrying out all such related activities over there.
It is stated that the Tahasildar Sadar, Balasore (Defendant No.3)
in violation of the order of the court converted the kisam of land under ‘ka’ schedule (suit land) from ‘Grocher’ to ‘Unanta Yojana Jogya’. This action is questioned as illegal and the proposed plan to establish a Bazar with shop rooms over there is said to have caused the threat and infringement upon the right of the people of Srikrishnapur and the adjoining villages. The Alienation Case No. 1 of 2001 initiated for purpose is challenged to be illegal and without jurisdiction.
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(a) that the conversion of the classification (kisam) of the land
described in schedule ‘ka’ of the plaint from ‘Grocher’ to ‘Unanta Yojana Jogya’ be declared as illegal;
(b) that the Defendants be permanently injuncted from not disturbing the right of the villagers of Srikrishnapur and other villages in the user of the land described in schedule ‘ka’; and
(c) that a decree for permanent injunction be issued against the Defendants restraining them from establishing shop and other establishments over the schedule ‘ka’ land.
(The plaint being in Odia, the above is the translated version).
6. The State of Orissa represented by the Collector is the Defendant No. 1 and Defendant Nos. 2 and 3 are the other concerned State Officials at the District Level.
It is their case that the suit land was lying vacant for a long period and it was meant for the benefit of the general public. The project under implementation is for establishment of ‘Krushak Bazar’ for making the platform for all the cultivators and growers of agricultural product of the local area for facilitating sale of their agricultural product at fair price for getting proper return in having due bargain power and for their
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economical prosperity. The conversion of the kisam land is said to be lawful and everything are said to have been done following the due process of law:-
7. The locus standie of the Plaintiffs to file the suit claiming the reliefs has further been questioned.
Some villagers arraigned as Defendant Nos. 4 to 11 have stood in favour of the action of the State. However, Defendant Nos. 12 to 14 have chosen to support the case of the Plaintiffs.
8. The Trial court on the above rival pleadings framing six issues have returned the answers thereto. Those important for the present purpose of this Second Appeal are under:-
i) Although the evidence on record shows the existence of Krushak Bazar, it is however not clear from the evidence that which land has been leased out in favour Krushak Bazar by the order of Defendant No. 3;
ii) the Plaintiffs have challenged the conversion of an unspecified portion of land which is either Ac.2.22 decimals or Ac.1.78 decimals and the entire conversion is not under challenge when the Conversion Proceeding is in respect of Ac.11.15 decimals of land. So it is not possible to nullify the proceeding in its entirety even though it can
be said that the Revenue Authority cannot change the kisam without following due process of law; and
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iii) only 1.00 Acre of land has been given to Krishak Bazar which has again been not specifically described and it is also not stated by the Plaintiffs nor proved through evidence to over which land the Krushak Bazar has been set up.
9. Having said all these above, the Trial court dismissed the suit.
10. The unsuccessful Plaintiffs having filed the Appeal have also not been able to obtain the judgment and decree therein in their favour. The findings of the First Appellate Court important for the present purpose
are the followings:-
i) From the oral and documentary evidence, the identity of the suit is not established; and
ii) the evidence on record is not enough to say that the suit land
was being used for communal purpose such as playground, for holding
festivals and other land to have been used for grazing, cremation ground etc.
11 . This Appeal has been admitted on the following substantial question of law:-
“A. Whether in view of finding in respect of issue no.3 in
favour of the Plaintiffs, the suit should have been recorded by the courts below?
B. Whether the findings of the courts below that the suit lands
are not identifiable suffers from the vice of perversity?”
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12. I have heard Mr. B. Baug, learned Counsel for the Appellants and Mr. R.K. Mohanty, learned Senior Counsel for the Respondent No. 2 as well as Mr. Maheswar Mohanty, learned Counsel for the Respondent No. 10.
Miss Samapika Mishra, learned Additional Standing Counsel was heard on behalf of the State.
13. Keeping in view the submissions made, I have careful read the judgments of the Trial Court as well as the First Appellate Court.
14. Learned counsel for the Appellants inviting the attention of the Court to the relevant paragraph-18 of the judgment of the First Appellate Court submitted that with the clear finding that the order passed by the Defendant No. 3 in converting the Gocher kisam of land concerning the suit plot is without jurisdiction and nullity, the final order of dismissal of the suit declining the grant of the reliefs as prayed for by the Plaintiffs cannot be sustained. He further submitted that the view taken by the courts below that the suit land is not identifiable being not so specifically described is completely contrary to evidence on record and the law holding the field has been totally ignored.
15. Learned Senior Counsel on behalf of the Respondent No. 2 submitted that the Trial court upon discussion of evidence on record
even though is said to have answered issue no. 3 in favour of the Plaintiffs and it is further taken to have been so affirmed by the First
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Appellate Court, the same is of no assistance for the Plaintiffs to obtain a decree in the suit as laid and for the reliefs claimed. He further submitted that issue no. 3 pertaining to the authority of Defendant No. 3 to order for said conversion is of no consequence inasmuch as even though the conversion is held to be without jurisdiction, the Plaintiffs cannot succeed as they have utterly failed to prove through evidence that the villagers have been continuously exercising their communal right over the said land since time immemorial. According to him, if the said conversion is invalid in law, the matter in that event stands between the State and the Regulated Market Committee and the Plaintiffs cannot take its advantage inasmuch as this cannot clothe any right on them when they have failed to prove their case of exercise of communal right over the suit land from time immemorial. According to him, it is merely the passing observation of the Trial court that the conversion without following the due procedure is invalid, but when the Plaintiffs have failed to challenge the entire proceeding and as the particular land over which the reliefs are claimed are not identifiable and properly certified, the final order of dismissal of the suit has to stand as certainly it is not permissible for the court to pass a decree which is not legally enforceable and executable in law.
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16. Learned counsel for the Respondent No. 10 and learned Additional Standing Counsel reiterated the submission advanced by the learned Senior Counsel for the Respondent No. 2.
17. Taking note of the rival submission, and on going through the discussion made by the courts below on those aspects touching the substantial questions of law, this Court feels it proper to commence the exercise of searching out the answers in one go.
18. The foundational fact placed in the plaint filed by the Plaintiffs is that upon the land described in schedule ‘ka’ the villagers of Srikhrishnapur and of other nearby villages as also the students of the School and College running in the area have been exercising their communal right from time immemorial. Thus asserting the exercise of such communal right from time immemorial by all concerned, the dereservation i.e. conversion of kisam of the land in question is said to have infringed their right as such for all times to come. The next prayer is for declaration that order of de-reservation said to have been passed by Defendant No. 3 is void as having been so passed without following the procedure as provided in law. Therefore, the relief of permanent injunction as to any other possible attempt based on said conversion has further been sought for.
19. Coming to the finding as to the Plaintiffs’ claim of exercise of communal right over the suit land by the villagers of Srikrishnapur and
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the villagers of other villages, it is seen that the said aspect has been dealt in detail at paragraph-30 of the judgment of the First Appellate Court. The court below has discussed the evidence let in by the Plaintiffs in order to find out as to whether they have discharged the burden of proof resting upon them to establish the factum of exercise of
that communal right. Looking at the averments taken in the plaint, the description on the above score appears to be unending and in several such manners, the land is said to have been used by the villagers. At one stage, it has been stated that one part of the area was used as cremation ground and other portion was being used as playground by the children and other villagers in carrying out all such related activities. It is further stated that school children were also using a part of it as playground and Panchayat Samit was running a Centre to train the youth in different outdoors game. It is also said that the large portion was there as grazing field etc. The Lower Appellate Court has discussed the evidence of P.W. 1 in great detail and it is seen that assigning very good reasons, his version as to his claimed relationship, based on which he is asserting to have the knowledge as to the user of the land for quite a long period has been disbelieved. When he asserts that at that point of time he was a student of Remunal College, the Lower Appellate Court screening the evidence has found that as not acceptable and therefore has held the evidence of this witness P.W. 1 to be of no help to stand in support of
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the case of the Plaintiffs in the matter of proving the case of exercise of communal right over the suit land since long. In that way, the evidence of P.W. 2 has also been discussed. His evidence has been found to be
bristling with many such features creating doubt in the mind and standing on the way of acceptance of his version as regards the user of the land. With such evidence on record when no other cultivator or person involved in the grazing and other activities has come to the witness box to give evidence in support of the case of the Plaintiffs, the Lower Appellate Court has held that there was no cause of action for institution of the suit by these two Plaintiffs claiming themselves to be the villagers of Srikrishnapur and asserting themselves to be the representative of all the villagers of that village as also nearby villages in seeking the reliefs in the present suit.
The finding arrived at by the Lower Appellate Court that the Plaintiffs have failed to prove the case of exercise of communal right over the suit land by the villagers of Srikrishnapur and of other villages is found to have been based on just and proper appreciation of evidence on record. The Lower Appellate Court in discarding the evidence let in by the Plaintiffs has assigned solid reasons and absolutely no such perversity is noticed therein. Thus, when the Plaintiffs have failed to establish the case on the above count, the very foundation of their case crumbles and this itself is enough to non-suit them.
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20. Coming to the insufficient description of the property and nonidentification standing on the way of the courts to pass an effective and executable decree; the law on the point is clear that where the subject matter of the suit is immovable property, the plaint must describe the property sufficient to identify and in case such property can be identified by boundary, number in the record of settlement or survey, those be specified boundary or number.
The objective is to see that no court passes a decree which ultimately is not enforceable or executable and the decree merely remains on paper in making the entire exercise futile. The Lower Appellate Court has dealt this aspect in detail at paragraph-24 of its judgment. The details of the plaint averments as also the description of the property as given in lot-I and lot-II of ‘ka’ schedule have been kept
in view. The Lower Appellate Court as seen has made all such attempts to ascertain whether the land over which the reliefs are claimed in the suit are identifiable in some way or other. The evidence of P.W. 1 has simultaneously been discussed with evidence of P.W. 2. The evidence of D.W. 1 has also been examined in finding out that the same if provide the exact location of Ac.1.78 decimals in lot-I and Ac. 2.22 decimals in lot-II of the schedule ‘ka’. Furthermore having discussed the evidence D.Ws. 2 and 3, the Lower Appellate Court has not been able to cull out
any such good reason to disturb the finding of the Trial Court as to the
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lack of proper identification of the suit land for grant of the reliefs as
claimed. In the absence of any prior identification and proper description of the property in the plaint by supplying the map indicating the exact location of lot-I and lot-II of schedule ‘ka’, the Lower Appellate Court after independent examination of the oral evidence at its level is found to have rightly refused to annul the finding of the Trial Court on that score as recorded against the Plaintiffs. The approach and the entire exercise in examining the issue at hand as made by the Lower Appellate Court appear to be proper and no such infirmity surfaces therein.
For all the aforesaid discussion, the answers to the substantial questions of law stand returned against the Plaintiffs.
In that view of the matter, the ultimate decision recorded by the
Lower Appellate Court in accepting verdict of the Trial court by nonsuiting the Plaintiffs is not liable to be interfered with and hereby stands confirmed.
21. Accordingly, the Appeal stands dismissed. No order as to cost.
(D. Dash), Judge.
Aksethy
3 issues framed by the court
Whether the suit should have been recorded by the courts below given findings favourable to plaintiffs regarding issue no.3?
Whether the findings that the suit lands are not identifiable suffer from the vice of perversity?
Whether the plaintiffs successfully proved the exercise of communal right over the suit land since time immemorial?
2 provisions across 1 enactments
Prasanna Kumar Sadangi & Others
Govt. of Orissa
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
