Mukunda Dhal @ Mukundagarag Dhal and ors. Vs. Sri Bhagabat GoswaIn and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/533655
SubjectCivil
CourtOrissa High Court
Decided OnJun-22-2009
Judge A.S. Naidu, J.
Reported in108(2009)CLT341
AppellantMukunda Dhal @ Mukundagarag Dhal and ors.
RespondentSri Bhagabat GoswaIn and ors.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - consequently, the suit was adjourned for years together inasmuch as the suit which was instituted in the year 1975 could not be disposed of till 1982. under such circumstances the trial court being satisfied that the parties are not cooperating, proceeded with the hearing on the basis of other evidence & came to the conclusion that the building constructed by the plaintiffs situated over plot no. perusal of paragraph-6 of the judgment passed by the lower appellate court clearly reveals that the said court did not take pain to decide issue no. 9. in view of the aforesaid infirmities this court feels that ends of justice & equity will be better served if the judgment & decree dated 13.9.1985 passed by the leaned district judge, dhenkanal in t.a.s. naidu, j.1. defendants of t.s no. 11 of 1975 of the court of the then subordinate judge, dhenkanal have filed this second appeal assailing the judgment & decree passed in the said suit which was confirmed by the learned district judge, dhenkanal in t.a no. 21 of 1982.2. bereft of unnecessary details the short facts which are necessary for effectual adjudication are stated here-in-below:respondent nos. 1 & 2 filed t.s no. 11 of 1975 with a prayer for declaration of their right, title & interest over the lands more-f ully described in the suit schedule & for confirmation of possession & in the alternative, recovery of possession. according to the plaint case, they were the marfatdars of the deity sri bhagabat goswain of village: nihalprasad, p.s: gondia in the district of dhenkanal & their grandfather endowed a piece of land measuring an area of ac.0.03 decimals appertaining to plot no. 879 in favour of the deity. it is averred that originally their grandfather had built a thatched house over the suit land & installed the deity. the same was however, gutted down in the year 1904. thereafter their father pravakar dhal, sometime in the year 1920 constructed a two roomed pucca house towards western side of the suit land & kept the eastern side vacant. in the revisional settlement records published in the year 1923-24 the suit land was recorded jointly in the name of the father of proforma defendants along with the father of the plaintiffs. taking advantage of such recording defendant nos. 1 to 8, it was alleged advanced a false claim over the suit land during settlement operation & forcibly extended their cowshed towards the vacant rortion of the suit land in december, 1973 & also locked the waiting room. having no other option the suit was filed.3. defendant nos. 1 to 4 contested the suit by filing a joint written statement denying all the averments made in the plaint. according to them the cowshed in question is situated over plot no. 879/4080 & the same was constructed by their father & brother in the year 1928. it was further averred that the entire land measuring an area of ac.0.05 decimals covered under plot no. 879/4080 was in plot no. 879 during revisional settlement held in the year 1923- 24. subsequently plot no. 879 was spitted up into two plots. plot no. 879 covered an area of ac.0.03 decimals & was exclusively recorded in the name of sri bhagabat goswain & plot no. 879/4080 measuring an area of ac.0.02 decimals was recorded in the name of nanda kishore dhai. according to the defendants though pravakar dhal the father of the plaintiffs had signed the rectification papers, as a witness, but strangely got his name recorded as marfatdar along with nanda kishore dhal. in short according to the defendants the plaintiffs had no right, title & interest over the suit land & the suit was filed with a mala fide intention to grab the properties.4. on the basis of the pleadings the trial court framed as many as nine issues. in support of their case the plaintiffs got five witnesses examined & exhibited four documents whereas the defendants got three witnesses examined & exhibited four documents including the certified copy of the final decree proceeding arising out of t.s no. 10 of 1961 of the court of the then subordinate judge, dhenkanal which was marked as ext.a. the trial court after discussing the evidence in extensp decreed the suit. being aggrieved the defendants filed an appeal in the court of the learned district judge, dhenkanal which was registered as t.a no. 21 of 1982. the lower appellate court also dismissed the appeal. the aforesaid judgments as stated eariier are assailed in this second appeal.5. while admitting the appeal this court directed that the appeal should be heard on the substantial questions of law framed in ground nos. 2, 3 & 6 of the memorandum of appeal. the said grounds are as follows:(a) whether the courts below committed an error in not considering the evidentiary value of ext. a, the final decreedrawn in t.s no. 10 of 1961 disposed of by the then subordinate judge, dhenkanal wherein the disputed plot no. 879/ 4080 was allotted to the share of the predecessor of the contesting defendants?(b) whether the lower appellate court erred in law in not applying its mind to the prayer of the appellants made in their petition dated 05.9.1989 for admitting the reprinted r.s map of village: nihal prasad, certified copy of not final map of the current settlement & orders passed by the settlement authority in objection case no. 2537/168/198 which are all relevant for deciding the dispute?(c) whether the lower appellate court erred in law in not allowing the prayer for deputation of survey knowing commissioner for making local investigation regarding location of the disputed building specially either the said investigation is necessary for proper adjudication of a dispute & when the defendants produced the required map of the r.s which could not be produced before the trial court?6. heard learned counsel for the parties at length. though several questions have been raised by learned counsels but then in course of hearing it appears that this appeal can be disposed' of only on one point. the trial court after going through the pleadings had framed nine issues. issue no. 2 out of the same reads as follows:whether the building housing the deity stands on plot no. 879/4080 or plot no. 879?7. appraisal of the pleadings & the submission made before this court reveals that the main controversy inter se between the parties is as to whether the lands appertaining to plot no. 879/4080 with a building standing thereon belongs to the deity or not? according to the plaint case plot no 879 belongs to the deity & late pravakar dhal constructed a building thereof, installed the deity in one of the rooms & used the bigger room for congregation of the people & for reciting 'bhajans'. plot no. 879/4080 belongs to the defendants & lies to the west side of plot no. 879. the defendants have constructed a cowshed thereon. it was alleged that defendants subsequently extended the cowshed & consequently encroached upon a portion of lands appertaining to plot no. 879 belonging to the deity. in view of the aforesaid admitted facts, the only question which needs to be determined is as to whether the defendants have constructed their cowshed over their own plot i.e. plot no. 879/4080 or encroached upon the adjoining plot i.e. plot no. 879 belonging to the deity. in view of the pleadings of the parties the trial court had rightly deputed a survey knowing commissioner with a direction to make local enquiry & report as to on which plot the building of 'sri bhagabat goswain' (deity) & the cowshed are located. it appears from the order-sheet that though the parties were directed to supply village maps & other documents so as to facilitate the commissioner to conduct local enquiry & make the measurements, they did not avail such opportunity. consequently, the suit was adjourned for years together inasmuch as the suit which was instituted in the year 1975 could not be disposed of till 1982. under such circumstances the trial court being satisfied that the parties are not cooperating, proceeded with the hearing on the basis of other evidence & came to the conclusion that the building constructed by the plaintiffs situated over plot no. 879 & decreed the suit. the lower appellate court being a final court of facts, it appears did not discuss the evidence at all & only on the ground that due to deliberate laches of the defendants the commissioner could not conduct local investigation & submit his report, confirmed the finding of the trial court. perusal of paragraph-6 of the judgment passed by the lower appellate court clearly reveals that the said court did not take pain to decide issue no. 2 in proper perspective. in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the court may in exercise of the power conferred upon it under order 26, rule 9 of c.p.c. depute a survey knowing commissioner to make investigation & submit his report. in case of boundary dispute & disputes relating to identity of land a report of the commissioner is very much necessary. it is also necessary to depute a survey knowing commissioner to ascertain the exact field position & to find out the situation of the land. in short in a case where there is dispute relating to identity of the suit land, the same has to be established by deputing a survey knowing commissioner to locate the land in dispute & find out its plot no. in the case at hand, as would be evident from the facts & circumstances the court below had in fact applied its mind & had arrived at a conclusion that deputation of survey knowing commissioner was very much necessary for answering issue no. 2 but then due to laches on the part of the defendants disposed of the suit on the basis of other evidence available on record.8. perusal of the judgment of the lower appellate court further reveals that the defendants who had filed title appeal did not assail the other findings arrived at by the trial court & only confined to their arguments to one point i.e. disposal of the suit without field investigation by the survey knowing commissioner. in view of the aforesaid facts the lower appellate court should have either directed to depute a survey knowing commissioner or if according to it, it was not necessary & as enough materials were available to decide issue no. 3 effectually, discussed the same & decided the said issue. it had in fact not adopted any of the aforesaid two options. that apart, it appears that the lower appellate court had not considered the final decree ext.a said to have been passed inter se between the parties.9. in view of the aforesaid infirmities this court feels that ends of justice & equity will be better served if the judgment & decree dated 13.9.1985 passed by the leaned district judge, dhenkanal in t.a no. 21 of 1982 is set aside & the matter is remitted back to the said court for de novo disposal & directs accordingly. the lower appellate court may depute a survey knowing commissioner or direct the court below to do the same after framing a set of questions so as to enable the commissioner to effectually answer the same. after receipt of the report of the commissioner & taking into consideration other evidence already adduced, the lower appellate court shall dispose of the appeal de novo strictly in consonance with law as expeditiously as possible, preferably within a period of six months from the date of communication of this order. it is made clear that if the defendants did not cooperate &/or submit requisite documents so as to enable the survey knowing commissioner to conduct local investigation within the time specified by the court below, it will be open to the lower appellate court to dispose of the appeal on the basis of the evidence available on record.the second appeal is accordingly disposed of.
Judgment:

A.S. Naidu, J.

1. Defendants of T.S No. 11 of 1975 of the Court of the then Subordinate Judge, Dhenkanal have filed this Second Appeal assailing the Judgment & decree passed in the said suit which was confirmed by the Learned District Judge, Dhenkanal in T.A No. 21 of 1982.

2. Bereft of unnecessary details the short facts which are necessary for effectual adjudication are stated here-in-below:

Respondent Nos. 1 & 2 filed T.S No. 11 of 1975 with a prayer for declaration of their right, title & interest over the lands more-f ully described in the suit schedule & for confirmation of possession & in the alternative, recovery of possession. According to the plaint case, they were the marfatdars of the deity Sri Bhagabat Goswain of village: Nihalprasad, P.S: Gondia in the district of Dhenkanal & their grandfather endowed a piece of land measuring an area of Ac.0.03 decimals appertaining to Plot No. 879 in favour of the deity. It is averred that originally their grandfather had built a thatched house over the suit land & installed the deity. The same was however, gutted down in the year 1904. Thereafter their father Pravakar Dhal, sometime in the year 1920 constructed a two roomed pucca house towards western side of the suit land & kept the eastern side vacant. In the Revisional Settlement records published in the year 1923-24 the suit land was recorded jointly in the name of the father of proforma Defendants along with the father of the Plaintiffs. Taking advantage of such recording Defendant Nos. 1 to 8, it was alleged advanced a false claim over the suit land during settlement operation & forcibly extended their Cowshed towards the vacant Rortion of the suit land in December, 1973 & also locked the waiting room. Having no other option the suit was filed.

3. Defendant Nos. 1 to 4 contested the suit by filing a joint written statement denying all the averments made in the plaint. According to them the Cowshed in question is situated over Plot No. 879/4080 & the same was constructed by their father & brother in the year 1928. It was further averred that the entire land measuring an area of Ac.0.05 decimals covered under Plot No. 879/4080 was in Plot No. 879 during Revisional Settlement held in the year 1923- 24. Subsequently Plot No. 879 was spitted up into two plots. Plot No. 879 covered an area of Ac.0.03 decimals & was exclusively recorded in the name of Sri Bhagabat Goswain & Plot No. 879/4080 measuring an area of Ac.0.02 decimals was recorded in the name of Nanda Kishore Dhai. According to the Defendants though Pravakar Dhal the father of the Plaintiffs had signed the rectification papers, as a witness, but strangely got his name recorded as Marfatdar along with Nanda Kishore Dhal. In short according to the Defendants the Plaintiffs had no right, title & interest over the suit land & the suit was filed with a mala fide intention to grab the properties.

4. On the basis of the pleadings the Trial Court framed as many as nine issues. In support of their case the Plaintiffs got five witnesses examined & exhibited four documents whereas the Defendants got three witnesses examined & exhibited four documents including the certified copy of the final decree proceeding arising out of T.S No. 10 of 1961 of the Court of the then Subordinate Judge, Dhenkanal which was marked as Ext.A. The Trial Court after discussing the evidence in extensp decreed the suit. Being aggrieved the Defendants filed an appeal in the Court of the Learned District Judge, Dhenkanal which was registered as T.A No. 21 of 1982. The lower Appellate Court also dismissed the appeal. The aforesaid Judgments as stated eariier are assailed in this Second Appeal.

5. While admitting the appeal this Court directed that the appeal should be heard on the substantial questions of law framed in Ground Nos. 2, 3 & 6 of the Memorandum of Appeal. The said grounds are as follows:

(a) Whether the Courts below committed an error in not considering the evidentiary value of Ext. A, the final decreedrawn in T.S No. 10 of 1961 disposed of by the then Subordinate Judge, Dhenkanal wherein the disputed Plot No. 879/ 4080 was allotted to the share of the predecessor of the contesting Defendants?

(b) Whether the lower Appellate Court erred in law in not applying its mind to the prayer of the appellants made in their petition dated 05.9.1989 for admitting the reprinted R.S Map of Village: Nihal Prasad, certified copy of not final map of the current settlement & orders passed by the Settlement Authority in Objection Case No. 2537/168/198 which are all relevant for deciding the dispute?

(c) Whether the lower Appellate Court erred in law in not allowing the prayer for deputation of Survey Knowing Commissioner for making local investigation regarding location of the disputed building specially either the said investigation is necessary for proper adjudication of a dispute & when the Defendants produced the required map of the R.S which could not be produced before the Trial Court?

6. Heard Learned Counsel for the parties at length. Though several questions have been raised by Learned Counsels but then in course of hearing it appears that this appeal can be disposed' of only on one point. The Trial Court after going through the pleadings had framed nine issues. Issue No. 2 out of the same reads as follows:

Whether the building housing the deity stands on Plot No. 879/4080 or Plot No. 879?

7. Appraisal of the pleadings & the submission made before this Court reveals that the main controversy inter se between the parties is as to whether the lands appertaining to Plot No. 879/4080 with a building standing thereon belongs to the deity or not? According to the plaint case Plot No 879 belongs to the deity & late Pravakar Dhal constructed a building thereof, installed the deity in one of the rooms & used the bigger room for congregation of the people & for reciting 'Bhajans'. Plot No. 879/4080 belongs to the Defendants & lies to the west side of Plot No. 879. The Defendants have constructed a Cowshed thereon. It was alleged that Defendants subsequently extended the Cowshed & consequently encroached upon a portion of lands appertaining to Plot No. 879 belonging to the deity. In view of the aforesaid admitted facts, the only question which needs to be determined is as to whether the Defendants have constructed their Cowshed over their own plot i.e. Plot No. 879/4080 or encroached upon the adjoining plot i.e. Plot No. 879 belonging to the deity. In view of the pleadings of the parties the Trial Court had rightly deputed a Survey Knowing Commissioner with a direction to make local enquiry & report as to on which plot the building of 'Sri Bhagabat Goswain' (deity) & the Cowshed are located. It appears from the order-sheet that though the parties were directed to supply village maps & other documents so as to facilitate the Commissioner to conduct local enquiry & make the measurements, they did not avail such opportunity. Consequently, the suit was adjourned for years together inasmuch as the suit which was instituted in the year 1975 could not be disposed of till 1982. Under such circumstances the Trial Court being satisfied that the parties are not cooperating, proceeded with the hearing on the basis of other evidence & came to the conclusion that the building constructed by the Plaintiffs situated over Plot No. 879 & decreed the suit. The lower Appellate Court being a final Court of facts, it appears did not discuss the evidence at all & only on the ground that due to deliberate laches of the Defendants the Commissioner could not conduct local investigation & submit his report, confirmed the finding of the Trial Court. Perusal of paragraph-6 of the Judgment passed by the lower Appellate Court clearly reveals that the said Court did not take pain to decide issue No. 2 in proper perspective. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may in exercise of the power conferred upon it under Order 26, Rule 9 of C.P.C. depute a Survey Knowing Commissioner to make investigation & submit his report. In case of boundary dispute & disputes relating to identity of land a report of the Commissioner is very much necessary. It is also necessary to depute a Survey Knowing Commissioner to ascertain the exact field position & to find out the situation of the land. In short in a case where there is dispute relating to identity of the suit land, the same has to be established by deputing a Survey Knowing Commissioner to locate the land in dispute & find out its Plot No. In the case at hand, as would be evident from the facts & circumstances the Court below had in fact applied its mind & had arrived at a conclusion that deputation of Survey Knowing Commissioner was very much necessary for answering Issue No. 2 but then due to laches on the part of the Defendants disposed of the suit on the basis of other evidence available on record.

8. Perusal of the Judgment of the lower Appellate Court further reveals that the Defendants who had filed Title Appeal did not assail the other findings arrived at by the Trial Court & only confined to their arguments to one point i.e. disposal of the suit without field investigation by the Survey Knowing Commissioner. In view of the aforesaid facts the lower Appellate Court should have either directed to depute a Survey Knowing Commissioner or if according to it, it was not necessary & as enough materials were available to decide Issue No. 3 effectually, discussed the same & decided the said issue. It had in fact not adopted any of the aforesaid two options. That apart, it appears that the lower Appellate Court had not considered the final decree Ext.A said to have been passed inter se between the parties.

9. In view of the aforesaid infirmities this Court feels that ends of justice & equity will be better served if the Judgment & decree dated 13.9.1985 passed by the leaned District Judge, Dhenkanal in T.A No. 21 of 1982 is set aside & the matter is remitted back to the said Court for de novo disposal & directs accordingly. The lower Appellate Court may depute a Survey Knowing Commissioner or direct the Court below to do the same after framing a set of questions so as to enable the Commissioner to effectually answer the same. After receipt of the report of the Commissioner & taking into consideration other evidence already adduced, the lower Appellate Court shall dispose of the appeal de novo strictly in consonance with law as expeditiously as possible, preferably within a period of six months from the date of communication of this order. It is made clear that if the Defendants did not cooperate &/or submit requisite documents so as to enable the Survey Knowing Commissioner to conduct local investigation within the time specified by the Court below, it will be open to the Lower Appellate Court to dispose of the appeal on the basis of the evidence available on record.

The Second Appeal is accordingly disposed of.