Sri Dindayal Agarwalla vs State Of Orissa, Respondents by the Collector & District Magistrate, Mayurbhanj And Another

Dr. A.K.Rath, J

This appeal by the plaintiff assails the affirming judgment passed by learned Additional District Judge, Rairangpur, Mayurbhanj in Money Appeal

No.2 of 2000.

The case of the plaintiff is that the State Government initiated MCC Nos.4 of 1993 and 9 of 1993 against one Ashok Kumar Agarwalla before the

Sub-Collector-cum-Certificate Officer, Bamanghaty, for realization of unpaid motor vehicles tax. The property was sold in public auction on 23.5.1990

under the supervision of the Tahasildar, Rairangpur. He was the successful bidder. Certificate Officer issued the sale certificate on 24.10.1990 in

Form No.15 as prescribed in the Orissa Public Demands Recovery Act, 1962. He deposited a sum of Rs.22,101/- on 23.05.1990. He had also paid an

amount of Rs.700/- towards poundage fee and Rs.684/-for purchase of non-judicial stamp papers for preparation of the sale certificate. After

obtaining sale certificate, he repeatedly requested the Certificate Officer to deliver vacant possession of the suit land. It was found that a portion of

the said land had been illegally encroached upon by the strangers. On 17.6.1994 orders were passed for delivery of possession through Tahasildar,

Rairangpur. Thereafter, he learnt that as per his letter dtd.23.6.1994, the Tahasildar, Rairangpur intimated the Certificate Court that the possession had

been delivered on 20.7.1993. The same was not correct. His signature was taken on a blank paper stating that a report would be made in his presence

at the time the Revenue Officials visit to the spot. In good faith, he put his signature on the blank papers. In spite of repeated requests, the Certificate

Officer failed to deliver vacant possession of the suit premises to him. With this factual scenario, he instituted the suit for realization of Rs.23,485/-

with P.I. & F.I. @12.5% p.a.

Defendants entered contest and filed a written statement pleading, inter alia, that the plaintiff had deposited an amount of Rs.22,101/-. The auction

sale was confirmed in his favour. Land was lying vacant at the time of delivery of possession. The Revenue Inspector, Rairangpur had delivered the

vacant possession of the land in question to the plaintiff on 20.7.1993 in presence of the police and Magistrate. The Tahasildar, Rairangpur had rightly

intimated the Sub-Collector, Baripada about delivery of possession of the land in favour of the plaintiff. The plaintiff had given in writing that he had

taken possession of the suit land on 23.6.1994.

Stemming on the pleadings of the parties, learned trial court struck five issues. The plaintiff had adduced evidence, oral and documentary. On an

anatomy of evidence and pleadings, learned trial court came to hold that P.W.2 had categorically stated that government officials went to the spot for

delivery of possession in favour of the plaintiff, as reported by the Tahasildar on 20.7.1993. P.W.3 has stated that the auctioned land was under the

possession of the plaintiff. The sale certificate was granted to the plaintiff by the Certificate Officer. Plaintiff is in possession of the land in question.

Held so, it dismissed the suit.

Unsuccessful plaintiff filed Money Appeal No.2 of 2000 before the learned Additional District Judge, Rairangpur. The appellate authority confirmed

the findings of the learned trial court and dismissed the appeal holding that plaintiff in his deposition has stated that he ascertained that the Tahasildar,

Rairangpur had given a report that vacant possession of the suit land was delivered to the plaintiff on 20.07.1993. Plaintiff had admitted that he had

taken the vacant possession of the suit land.

Heard Mr. Manoj Kumar Agarwal on behalf of Mr. D.P. Dhal, learned counsel for the plaintiff and Mr. Swayambhu Mishra, learned ASC for the

State.

Mr. Agarwal, learned counsel for the plaintiff submits that plaintiff was the auction purchaser. He deposited an amount of Rs.22,101/- before the

Certificate Officer, Rairangpur along with an amount of Rs.700/- towards poundage fee and Rs.684/- for purchase of non-judicial stamp papers for

preparation of the sale certificate. Delivery of possession was not made. Plaintiff had written a letter to the Certificate Officer to give vacant

possession of the land. The land had been encroached upon by the encroachers. When defendants failed to deliver the vacant possession of the suit

land, he instituted a suit for realization of money. He further submits that the finding of the courts below that the suit land had been delivered to the

plaintiff is perverse.

Per contra, Mr. Mishra, learned ASC submits that both the courts below have concurrently held that the suit is not maintainable. All the witnesses

examined by the plaintiff have stated that delivery of vacant possession had been given to the plaintiff. If the encroachers had encroached upon any

portion of the land, it was open to the plaintiff to institute the suit for eviction.

Admittedly the suit land was put to auction in the certificate case. Plaintiff was the highest bidder. He deposited a sum of Rs.22,101/- along with

Rs.700/- towards poundage fee and Rs.684/- for purchase of non-judicial stamp papers for preparation of the sale certificate before the certificate

officer. Sale Certificate, Ext.1 was issued in favour of the plaintiff.

On a scanning of the evidence of P.Ws.1 and 3, both the courts below have concurrently held that delivery of possession of the land had been

given to the plaintiff. This is essentially a finding of fact. There is no perversity in the finding of the courts below.

Resultantly, the appeal fails and is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.

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