D.Dash,J
1. The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 7th October 2023 and 13th October 2023 respectively passed by the learned District Judge, Balasore in R.F.A. No.38 of 2019.
The Appellant as the Plaintiff had filed Civil Suit No.810 of 2012 in the Court of learned 3rd Additional Senior Civil Judge, Balasore. The suit is for declaration of his title over the land as described in Schedule ‘A’ of the plaint and for permanent injunction against the Respondents arraigned therein as the Defendants.
The suit having been dismissed, the Appellant as the unsuccessful Plaintiff had carried Appeal under Section-96 of the Code, which has also been dismissed. Hence, the present Second Appeal is at the instance of Appellant (Plaintiff) who has remained unsuccessful in both the Courts below.
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 prayer as advanced in the plaint in specific are :-
to declare that the Major Settlement Record of Right published on 22.01.1986 is illegal and erroneous; declare that the Defendants are not possession in the suit land by virtue of the registered agreement dated 16.06.1965; confirm the possession of the Plaintiff over the suit land; and permanently restrain the Defendants from entering upon the suit land.
4. It is stated that the land in Schedule ‘A’ originally belonged to Babu Shyam Charan Dey. He had accorded permission in favour of the Defendant No.1 (Chairman, Balasore Municipality) allowing them for using the said land on certain terms and conditions for the purpose, he had executed a registered agreement on 12.06.1925. The important of the conditions was that the Defendant No.1 would construct boundary around the suit land and point it out, when so required by the grantor. The Defendant No.1 did not construct the boundary nor took any step to preserve the land for the purpose of School. The Defendant No.1 was thus careless and did not possess ‘B’ Schedule property. So, the land under Schedule ‘B’ turned a jungle. It is stated that during his lifetime, he requested the School and Municipal Authority to preserve Schedule-B land, but they did not take any step in that direction and breached the said condition. After death of Babu Shyam Charan Dey, his wife Mukhi Dasi also requested the Defendants to preserve the suit land to which they turned deaf ear. The Kasaba School is situated over the Schedule ’C’ land which is a part of Schedule ‘A’ land and in between ‘B’ and ‘C’ Schedule land, Nurpur road passes through the School is said to be situated to the west of the road and ‘B’ Schedule land is situated towards east. The land in Schedule ‘C’, which is the School area is having its permanent boundary.
It is further stated that in spite of several requests, the Defendants when failed to preserve entire ‘A’ Schedule land, except the part thereof under Schedule-C, the grantor Babu Shyam Charan Dey/ his wife resumed ‘B’ Schedule land in consonance with the terms and conditions of the agreement dated 12.06.2025. The resumption was made on 20.04.1945 after 20 years of the agreement. After the death of grantor, his wife and sons became the exclusive owners in possession of Schedule ‘B’ property while they were owning and possessing the ‘B’ Schedule land, they sold the same to one Niharbala Piri by registered sale-deed dated 21.04.1947 and delivered possession of the same to her. Niharbala Piri subsequently mutated the Schedule ‘B’ land and paid rent. In the Major Settlement Operation, the Settlement Authority found neither the Municipality nor School to be in possession of the Schedule-B property as playground, and it was lying as jungle. The Settlement Authority consequently found that the agreement to have not been acted upon and there was breach of the terms and conditions laid therein in respect of Schedule ‘B’ property except the land under Schedule ‘C’. The Settlement Authority issued ROR relating to ‘C’ Schedule property in favour of Municipality/Kasaba U.P. School, and the Khatian no.120 in favour of Niharbala in addition they however illegally noted that Kasaba School is in possession as per agreement dated 16.06.1965 on behalf of Balasore Municipality. It is thus said that the present Record of Right under Khata No.120, Plot No.248 measuring Ac.067 decimals in respect of possession of the School on behalf of Municipality is illegal and erroneous. It is stated that the Defendants are not entitled to possess Schedule ‘B’ land on the strength of the Record of Right. It is further stated that the clear intention of the grantor being that the School and Municipality would physically possess the land in Schedule ‘A’, that being not so, there arises no claim of the Defendants over the said land.
Niharbala Piri died leaving behind her two sons, i.e. the Plaintiff and Krushna Chandra Piri. They were the exclusive owners in possession of the school property. There was a partition between them in a suit in the Court of Civil Judge (Senior Division), Balasore which ended on compromise on 16.05.2010 and in the said partition, the Plaintiff has been allotted with Schedule ‘B’ property with other undisputed property. After the breach of the agreement, possession of the Schedule ‘B’ land is said to have been resumed automatically in favour of the grantor and thereafter, it has come to the hands of Niharbala on the strength of her purchase. The Plaintiff claims to be in exclusive possession of the suit land as its owner.
On 01.08.2012, when the Headmaster and some teachers of the School caused obstruction and disturbance in the peaceful possession of the Schedule ‘B’ land by the Plaintiff and thereafter on 21.06.2017, the Headmaster of the School when went to measure the suit land and it was further found that the Government had proposed to construct boundary wall around the school premises, the Plaintiff has come to file the suit.
5. The Defendant No.1 and 2 in their written statement raised objection that the suit is not maintainable being barred by limitation and non-compliance of the provisions of contained in section 349 of the Orissa Municipal Act, 1950. It is also stated that there was an agreement between Babu Shyam Charan Dey and Chairman, Balasore Municipality for development of education in that area and according to the terms of the deed, the grantor’s had not at all kept the right to resume the land unto himself at any point of time unless the School is abolished and restriction was upon the grantee that they shall not make any construction for any purchase except for the purpose of the School and even were not permitted for putting and removing the earth therefrom. The grantee was not permitted to transfer any part of the land except upon being authorized by the grantor. It is stated that the grantee since 12.06.1925 remained in possession of the land given to the School and the land was used for School related purpose being left upon for the children to play over there during the recess. It is stated that ‘B’ and ‘C’ Schedule land is intervened by Municipality pucca road, and the Plaintiff is the boundary tenant of the open space towards west and he in order grab the land belonging to the School fabricated the sale in question and had never taken possession of the land alleged to have been purchased and has now without any justification has filed the suit challenging the M.S. ROR. It is stated that the suit filed after 27 years of the publication of the ROR is grossly barred by limitation. The sale deed even though is standing in favour of the Plaintiff has not clothed him with the right, title and interest in respect of the suit land.
6. The Trial Court on the above rival pleadings, framed as many as seven (7) issues. Upon examination of the evidence both oral and documentary let in by the Plaintiff, the Trial Court has recorded the following findings :-
(a) the plaintiff could not produce any credible evidence to dispute the possession of Kasaba U.P. School over the ‘B’ Schedule land;
(b) the major settlement ROR pertaining to Khata No.120 of Mouza-Kasaba has been correctly published; and
(c) the defendants being in lawful possession of the land under M.S. Khata No.120; the plaintiff is not entitled to the relief of permanent injunction.
Accordingly, the suit having been dismissed, the First Appellate Court being moved by the unsuccessful plaintiff has affirmed all those findings.
7. Mr. J.K. Mishra, learned Counsel for the Appellant submitted that there being no evidence on record that the suit land being granted by the erstwhile owner to the Defendants, they had used the same for the purpose for which it was granted, the resumption of the land in favour of the original owner (grantor) being automatic and there being sale of the property about 22 years thereafter, the Courts below ought to have decreed the suit allowing the prayers as advanced in the plaint. He further submitted that the Courts below have committed serious error in holding the School to be in possession of the suit land simply being swayed away by the entry made in the remark column of the ROR. He further submitted that when the very basis of recording of the possession of the land in suit in favour of the School, is the agreement dated 16.06.1965 as noted in the ROR and as it reveals that the same was not executed by the original owner in favour of the School; the Courts below ought to have accepted the Plaintiff’s case and decreed the suit. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.
8. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below and have also perused the pleadings and the cited documents.
9. Undisputed facts remain that Babu Shyam Charan Dey was the owner of the property in Schedule ‘A’ and he had executed an agreement on 12.06.1925, registered on 16.06.1925 in favour of the Chairman, Balasore Municipality for running the School in putting the Chairman, Balasore Municipality in possession of the same. It is also not in dispute that Schedule ‘B’ land is recorded in the name of Niharbala Piri, the mother of the Plaintiff with a note of possession in favour of the School and that the Plaintiff claims to have got in his share in compromise decree passed in a civil suit.
10. The Plaintiff’s claim is based on the registered sale-deed, Ext.4 executed in favour of his mother Niharbala. The deed in question is executed by Pratap Chandra Dey through her mother guardian, Mukhi Dasi. The Plaintiff’s case is that when the Defendants did not preserve the suit land, the grantor resumed the same and repossessed the suit land and thereafter it continued with his wife and sons.
Thus, the burden heavily lies on the Plaintiff to plead and prove the fact that the grantor had at any point of time after execution of the registered agreement in the year 1925 had resumed the land in Schedule ‘B’ and that at the time of execution of the sale deed in favour of the Plaintiff, the possession of the land in suit was with the successors of the said grantor. The Plaintiff does not dispute the right of the Defendant no.1 over Schedule ‘C’ land which is a part of Schedule ‘A’ land which it got by virtue very same the registered agreement dated 12.06.1925/ 16.06.1925. The dispute however centers around Schedule ‘B’, which stands recorded in the name of the mother of the Plaintiff in the Major Settlement, ROR, Ext.2 carrying the note of possession in favour of the School. It clearly reveals from Ext.1 that grantor had put the Chairman, Balasore Municipality in possession of the entire ‘A’ Schedule for running School. The Plaintiff’s case in the plaint is that the Chairman, Balasore Municipal is running the School over the Schedule ‘C’ which is a part of Schedule ‘A’ land. No allegation is made that Defendant’s are using the land for any purpose other that for the School. The Plaintiff though claims Schedule ‘B’ which is part of Schedule ‘A’ in saying that the grantor had resumed that land in the year 1945; absolutely no evidence in support of the same has come to surface. The Plaintiff himself being examined as P.W.1 when has stated that Babu Shyam Charan Dey, the grantor had died prior to the year 1945, his plea with the grantor resumed Schedule ‘B’ land in the year 1945 is found to be dire falsehood. His further evidence is that this School was not situated on the suit land before his birth and now it is over the suit land. So, the Plaintiff having admitted about the School’s existence over the suit property, the plea as regards resumption over the Schedule ‘B’ property by the grantor for the reason that the Defendant No.1 did not take care of the said property and took interest in using the same for which it had been granted bites dust. In the totality of the facts and circumstances, which have emerged in evidence, and more particularly as there is no evidence that the grantor had resumed the possession of the same for the reason that the grantee used the land for the purpose other than the educational purpose the First Appellate Court’s view that the registered agreement dated 12.06.1925/16.06.1925 is a permanent lease is not found fault with. The Plaintiff’s case thus is without the foundation.
11. The Courts below have concurrently found the School be in possession of the suit land since the year 1925 and the Plaintiff and his vendor had never possessed the same at any point of time after the year 1925. This Court finds that there surfaces no such perversity therein as the same is neither found to be based on no evidence nor on the contrary evidence on record. No such material is also available to show that the Courts below have ignored some material evidence on record or have read something extraneous into the evidence which if would not have been correctly done, the finding would have been otherwise.
In the wake of aforesaid discussion and reasons, the submission of the learned Counsel for the Appellant (Plaintiff) that there arises any substantial question of law for being answered, meriting admission of this Appeal cannot be countenanced.
12. In the result, the Appeal stands dismissed. However, there shall be no order as to cost.
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