AI Structured Summary
Not yet generated for this judgment
Judgment
R.N. Misra, J.—The sale Defendant has carried this appeal against the affirming judgment and decree of the learned Additional District Judge of Ganjam in a suit for mandatory injunction directing the Defendant to remove the extended portion of the cattle pound as specified in the plaint schedule.
Plaintiff is a registered firm represented by three of its partners. Abutting National Highway No, 5 running through Rambha Town, the Plaintiff-firm owns a building the back portion whereof was being used as a godown for storage of mercantile goods. There used to be a big gate on the back side towards the north-end providing direct access to the public road known as Baurisahi or Kandarasahi Road. The cattle pound of the Defendant stood adjacent to Plaintiff�s land on the north and by its side was the opening into the Plaintiff�s land as indicated above. The Defendant extended the pound on the further north as shown in blue in the plan. The extended portion affected the Plaintiff�s right of passage from the back gate into its vacant site. Plaintiff resisted its right of way having been affected by mandatory injunction on 11-11-1969 on the allegation that the right was interfered with in February of that year.
In the written statement, the Defendant contended that there lay a vacant strip of Taram land between Baurisahi road and the Plaintiff�s land on the west. There was a cattle pound on a portion of the Taram land for several years and long prior to the construction of the Plaintiff�s house. With the sanction of the Collector of the district, the pound has been extended on the northern side. The existence of the back gate as alleged was admitted. but it was contended that it came into existence at the time the building was erected, but it was not put to any use and normally kept closed. The claim of easement was seriously challenged. It was pointed out that the Plaintiff�s building opened into the National Highway with direct access from the public road into it. Plaintiff�s house was constructed within 15 to 16 years prior to the suit and the Baurisahi road came into existence only in 1967. The claim of uninterrupted use for more than thirty years was thus denied as baseless.
The learned Appellate Judge examined the entire evidence again and came to hold that the Plaintiff�s claim of user from 1935 of the passage bad been established. He found the user to be more than 30 years prior to suit land thus the claim of easementary right of passage had been established. Accordingly, he affirmed the decree and dismissed the appeal. The concurrent findings of the Courts below are assailed in this second appeal.
Mr. Rath on behalf of the Appellant raises the following contentions:
(i) The State of Orissa was a necessary party to the litigation and without it and behind its back, Plaintiff could not have decree;
(ii) both the Courts have gone wrong in holding that Plaintiff has proved user of the passage for more than 30 years as required under the law. The firm having come into existence in the year 1949 and there being no pleading for tacking the previous user by one of the partners of the Plaintiff-firm and the suit having been instituted on 11-1l-1969 the legal requirement of 30 years of user could not have been established ;
(iii) under Ext. 5, the land measuring 60 cubits East to West and 20 cubits North to South having been purchased by father of one of the partners (p w. 4), the Courts below went wrong in holding that property of the Plaintiff extended upto the place where the gate is alleged to have been located and that Plaintiff could have been exercising right of passage as alleged by them;
(iv) the evidence has not been property read by both the Courts below and erroneous conclusions have been reached.
It is conceded by Mr. Rath for the Appellant that under the provisions of the Orissa Municipal Act the land in question admittedly would not statutorily vest in the Notified Area Council as the property in question belongs to the State Government. In order to obtain title to that land, a transfer from the State Government was necessary. The Appellant nowhere pleaded of such a transfer nor has any evidence been placed supporting transfer. The entire evidence on this score is from Exts. A-1 and B-2 (the estimate and the construction plan of the extended portion of the pound respectively.) In Ext. A-1, the Collector seems to have sanctioned the estimated expenditure of Rs. 6,000/-. There is force in the contention of Mr. Misra for the Respondents that the sanction of the Collector related to expenditure for construction out of the Local Fund and had nothing to do with transfer of title of the land. . In the premises, the Courts below were correct in their conclusion that the State was not a necessary party and title to the property was not in litigation.
It is not disputed that under a registered sale deed (Ext. 5), the site in question was acquired by the father of p. w. 4. At the relevant time it was a vacant site. Plaintiff�s case at the trial is that ever since 1935, the land is being used as a place for storing agricultural produce, and through the back gate as claimed such produce was being carried to the place of storage; about 15 to 16 years prior to suit, the house was raised and in place of the tati gate, pucca gate have been constructed. Possession from 1935 till February, 1969. when the construction was raised and the passage and the gate were blocked has been claimed by the Plaintiff at the trial. This certainly is more than thirty years. But according to counsel for the Appellant, Plaintiff has nowhere categorically pleaded that their possession started from 1935 and though the property had been acquired in the name of the father of one of the partners, it had been ;sed from 1935 till cause of action arose, in the hands of successive holders of title. Except in paragraph 3 of the plaint, where the following assertion has been made:
...Even otherwise the Plaintiffs acquired legal right of way over the disputed site by open and uninterrupted user for more than 30 years.
There is no mention of the acquisition of the property by the father of p. w. 4, nor has it been pleaded that the gate had been put more than thirty years prior to the suit and that there had been a right of way existing from the very commencement. On the other hand, in paragraph 2 of the plaint, the following pleading has been advanced:.
�The 3 Plaintiffs have constituted a Registered Partnership Firm bearing Registration No. 74.1949 and have been doing business under the name and style of "M/s. Kotini Krishnamurty and Partners� general merchants of Rambha. The Firm owns a big building in the western row of National High Way Road at Rambha. The back-portion of the said building is being used as a godown for storing mercantile goods for the firm there is a big gate to the back side of the northern portion of the said building with a direct access to the public road called �Bauri Sahi� or �Kandra Sahi� Road which is to the west of the building running from Rambha to Chandipur. The said gate is marked in the annexed plan herein-after called the suit plan,
The firm came into existence in 1949. In the absence of any pleading that before the firm came into existence, the property was being used with a gate placed at some point in the back side, user in the manner spoken to at the trial for the period prior to construction of the building is without any pleading. This is a case where Plaintiff intends to succeed on the basis of user for a period of thirty years. There has been no pleading at all to support user from the year 1935 or for over a period of thirty years beginning from a particular point of time. The user pleaded in paragraph 2 of the plaint is with reference to the construction of the building and that being an event within sixteen to 17 years prior to suit, the evidence of user by p. w. 4�s father is without any foundation laid in the plaint. Faced with the difficulty at the trial, Plaintiff has come forward with the plea of tacking.
There is also force in the Appellant�s contention that the Notified Area Council has been prejudiced in its defence inasmuch as no specific plea has been raised in the matter of user from 1935 and evidence has been permitted to be led to fill up the lacuna though unsupported by plea. This has prejudiced the Defendant. Plaintiff having founded their case on thirty years� user was bound to plead the appropriate particulars and allow the Defendant to meet such a case. Plaintiff does not seem to have advanced the necessary pleading.
Counsel for the Appellant has further contended that even if Ext. 5 be accepted as the foundation for the claim, the property acquired under it being a small area could not extend up to the place where the gate is said to have been located. Plaintiff has nowhere pleaded as to how they got the balance area so as to put a fence upto the place where the gate is said to have been located and thus to have a passage from the back side to the land. As already indicated, under Ext. 5, the purchased area was about 60 cubits x 20 cubits. The plaint sketch-map places the gate at a distance of more than sixty cubits from the road side. Plaintiff has neither pleaded nor proved as to how they acquired title to the remaining portion so as to include within their compound the place where the gate is alleged to have been raised by them. In the premises the lower appellate Court clearly went wrong in affirming the decree of the trial Court without recording a clear finding on these aspects. These are factual questions and in case evidence is available to support these aspects it is for the final Court of fact to record appropriate findings.
I would accordingly vacate the judgment of the lower appellate Court and remit the matter to it for a fresh disposal in accordance with law. On the evidence already on record the learned appellate Judge shall examine the tenability of the points raised on behalf of the Notified Area counsel and dispose of the litigation in accordance with law. Costs shall abide the event.
Appeal allowed It case demanded.