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Judgment
Dr.A.K.RATH, J.
Plaintiff is the appellant against a confirming judgment in a suit for eviction and permanent injunction.
The case of the plaintiff is that the suit schedule land belongs to him. The same has been recorded in his name in the Settlement Record of Right.
He is in possession of the suit land. The suit land is situated by the side of the road which connects Berhampur-Digapahandi main road. The said road
is the only passage to connect Digapahandi bus stand. The plaintiff and other persons, who have their agricultural land on both sides of the road, use it
as a passage for taking their bullock carts and plough their land. Defendant no.1 constructed the shop rooms by encroaching upon the suit land as well
as the road, as a result of which, road has narrowed. The same has caused serious inconvenience to the road side land owners. With this factual
scenario, the suit was instituted seeking the reliefs mentioned supra.
The defendants have filed a written statement denying the assertions made in the plaint. The case of the defendants is that construction of shop
rooms on the road side of the Government land has been made as per the resolution passed by the Council for the benefit of the local public. The
Council has right to develop the road side land. The shop rooms have been constructed on the road side land. The shop rooms do not cover any part of
the suit land. No encroachment has been made on the plaintiff’s land. The road has been transferred to the Council for its maintenance. The land
on which the shop rooms have been constructed was never in possession of the plaintiff.
On the inter se pleadings of the parties, learned trial court framed four issues. Parties led evidence. Learned trial court dismissed the suit holding,
inter alia, that the plaintiff has failed to prove that the defendants have encroached upon his land. Unsuccessful plaintiff filed Title Appeal No.55 of
1997 before the learned District Judge, Ganjam-Gajapati, Berhampur, which was eventually dismissed. It is apt to state here that during pendency of
the first appeal, the plaintiff filed an application under Order 26 Rule 9 C.P.C. for appointment of a Survey Knowing Commissioner. The same having
been rejected, he filed Civil Revision No.89 of 1999 before this Court, which was dismissed on 9.8.2000.
The appeal was admitted on the substantial questions of law enumerated in ground nos.1 to 3 of the appeal memo. The same are-
“(A) Whether the findings of the learned Courts below that in absence of examination of Amin, the Ext.1 has no evidentiary value are illegal and
contrary to the statute when Ext.1/ the Amin’s report is once marked as Exhibit without any objection has got the evidentiary value as per Section
58 of the Evidence Act since settled law is that when a document is marked on admission without observation, the contents are not only evidence but
are taken as admitted and cannot be challenged and no further proof is necessary especially when same is prepared by the statutory authority under
Statute and has been accepted in the D.M.C. Case No.51/94 ?
(B) Whether the findings of the learned Courts below regarding construction of the shopping complex by defendant no.1 over road margin land and
not on suit land are illegal and perverse being contrary to the evidence on record and law when the law is that once a specific once a specific plea
regarding road margin land is taken the burden lies on Respondent no.1 to prove the same in terms of Section 110 of the Evidence Act in view of the
contrary being proved that there is no other land as per Ext.‘C’ where it has been described as road ?
(C) Whether the findings of the learned courts below regarding construction of the market complex by the Respondent no.1 over the Government Plot
and the public road (Ext.A & B) which are under the management and maintenance of the Respondent no.1 are illegal and contrary to the evidence
on record when Ext.A & Ext.B do not reveal that the Government land and public road have actually been transferred by Government in favour of
Respondent no.1 as required under law ?â€
Heard Mr.P.K.Das, learned Advocate on behalf of Mr.Manoj Kumar Mishra, learned Senior Advocate for the appellant. None appeared for the
respondents.
Mr.Das, learned Advocate for the appellant submitted that defendant no.1 has constructed the shop rooms by encroaching upon a portion of the suit
land. The shop rooms have been constructed on the road side. By that process, the passage leading to the paddy filed of the nearby owners has been
blocked. He further submitted that the Tahasil Amin has measured the land. The report submitted by the Tahasil Amin has been exhibited as Ext.1.
From Ext.1, it is evident that defendant no.1 has encroached upon the suit plot.
Learned lower appellate court discarded the Amin’s report, vide Ext.1, on the ground that defendant no.1 was not present at the time of
measurement. The Tahasil Amin was not summoned to the Court. The defendants did not get any chance to cross-examine him in order to test his
veracity and correctness of procedure adopted by him during measurement. It further held that Ext.1 has not been properly proved, since its author
was not brought to witness box.
In Sait Tarajee Khimchand and others Vrs. Yelamarti Satyam and others, AIR 1971 SC 1865, the apex Court held that mere marking of document
does not dispense with its proof. Since the defendants were not parties to the demarcation case, in which Ext.1 was prepared, the same cannot be
used against them.
Application filed by the plaintiff before the first appellate court under Order 26 Rule 9 C.P.C. has been rejected. Thereafter the plaintiff filed Civil
Revision No.89 of 1999 before this Court. The same was dismissed.
On an analysis of the evidence on record and pleadings, the courts below currently held that the defendants have not encroached upon the suit
land. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. In the wake of
aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No Costs.