Orissa High Court
The Executive Engineer(Irrigation) vs Smt. Tarini Patro And Another on 11 March, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.96 of 1990
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
The Executive Engineer(Irrigation), .... Appellants
Bhanjanagar and others
-versus-
Smt. Tarini Patro and another .... Respondents
Appeared in this case:-
For Appellants : Mr. Gyanalok Mohanty,
learned Standing Counsel
For Respondents : None
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 04.02.2025 / date of judgment : 11.03.2024
A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellants in this 2nd appeal were the defendant nos.1 to 3
before the trial court in the suit vide T.S. No.105 of 1985 and respondent
nos.1 to 3 before the 1st appellate court in the 1st appeal vide T.A. No.08
of 1987.
3. The respondent no.2 in this 2nd appeal was the defendant no.4
before the trial court in the suit vide T.S. No.105 of 1985 and respondent
no.4 before the 1st appellate court in the 1st appeal vide T.A. No.08 of
1987.
The respondent no.1 in this 2nd appeal was the sole plaintiff before
the trial court in the suit vide T.S. No.105 of 1985 and appellant before
the 1st appellate court in the 1st appeal vide T.A. No.08 of 1987.
The suit of the plaintiff(respondent no.1 in this 2nd appeal) before
the trial court vide T.S. No.105 of 1985 against the defendants(appellants
and respondent no.2 in this 2nd appeal) was a suit for permanent
injunction simpliciter.
4. The suit land is Plot No.330(227/369) to the extent of A. 0.080
decimals and Plot No.329(227/370) to the extent of A.0.122 decimals
under Khata No.46 in total A. 0.202 decimals in mouza G. Dhougam
under Aska Sub-registrar in the district of Ganjam.
According to the plaintiff, she is the owner of the suit land vide
Plot Nos.329 and 330, upon which, her residential house, latrine,
bathroom etc. have been constructed. The suit land stands recorded in her
name. Surprisingly on dated 26.09.1985, the defendant nos.1 and 2 along
with their staffs up-rooted the vegetable plants from the suit plots and
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made primary preparation for digging a canal over a portion of the same
(which is inside her homestead at the back of her house), to which, she
(plaintiff) protested. So, the defendant nos.1 and 2 could not proceed
with their works for digging the canal in the suit land. Then, in order to
institute a suit for injunction against the defendant nos.1 to 3, the plaintiff
issued statutory notices under Section 80 of the CPC, 1908 to the
defendants nos.1 to 3 and after passing of the statutory period,
she(plaintiff) filed the suit vide T.S. No.105 of 1985 against the
defendants praying for injuncting the defendants permanently from
entering into any portion of the suit land and from interfering with the
peaceful possession and enjoyment of the plaintiff in the suit land.
5. Having been noticed from the trial court in the suit vide T.S.
No.105 of 1985, the defendants contested the same by filing their written
statement jointly taking their stands that, the suit of the plaintiff for
injunction against the defendants is not maintainable.
According to the defendants, the suit properties have already been
lawfully acquired by the Government through proper land acquisition
proceeding for public purpose in order to pass a canal through the same.
For such acquisition of the suit properties, as per law, notices were
served on the plaintiff and the lawful compensation amount thereof has
been kept under deposit in the Government Treasury on 22.11.1984, as in
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spite of the notices to the plaintiff for receiving the said compensation
amount, the plaintiff did not turn up to receive the same. When, the suit
properties have already been acquired lawfully by the State and the
possession thereof has already been taken by the State on 17.10.1984 as
per law and when, the plaintiff has no possession over the suit properties
and when, due to acquisition of the suit properties, the suit properties
vested with the Government, for which, the suit for permanent injuction
simpliciter filed by the plaintiff against the defendants in respect of the
suit properties is not maintainable under law. The same is liable to be
dismissed against the defendants.
6. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether four numbers of issues were framed by
the trial court and the said issues are:-
ISSUES
i. Whether the suit is maintainable?
ii. Whether the plaintiff has cause of action to file the suit?
iii. Whether the suit land was acquired under Land
Acquisition Act for the purpose of construction of canal?
iv. To what relief, if any, the plaintiff is entitled to?
7. In order to establish the aforesaid relief, i.e., permanent injunction
sought for by the plaintiff against the defendants, she (plaintiff) examined
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one witness on her behalf, i.e., to her son as P.W.3 and relied upon the
documents vide Exts.1 to 5.
On the contrary, in order to nullify/defeat the suit of the plaintiff,
the defendants examined one witness on their behalf as D.W.1 and
exhibited several documents from their side vide Exts.A to J.
8. After hearing from both the sides and on perusal of the materials,
documents and evidence available in the record, the trial court dismissed
the suit of the plaintiff vide T.S. No.105 of 1985 on contest against the
defendants as per its judgment and decree dated 25.04.1987 and
05.05.1987 respectively assigning the reasons that, the suit of the plaintiff
in respect of the suit properties for permanent injunction against the
defendants is not maintainable (entertainable) under law. Because, due to
acquisition of the suit properties, as per Land Acquisition Act, 1894, the
suit properties vested in the Government being free from all
encumbrances, in which, as per law, the plaintiff has no title and
possession. For which, the suit of the plaintiff, for permanent injunction
against the defendants in respect of the suit properties is not maintainable
under law.
9. On being dissatisfied with the aforesaid judgment and decree of
the dismissal of the suit of the plaintiff vide T.S. No.105 of 1985 passed
by the learned trial court, she(plaintiff) challenged the same by
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preferring the 1st appeal vide T.A. No.08 of 1987 being the appellant
against the defendants arraying the defendants as respondents.
10. After hearing from both the sides, the 1st appellate court allowed
that 1st appeal vide T.A. No.08 of 1987 of the plaintiff and set aside the
judgment and decree of the dismissal of the suit passed by the trial court
in T.S. No.105 of 1985 as per its judgment and decree dated 22.12.1989
and 04.01.1990 respectively assigning the reasons that, the defendants
have not been able to prove the proper acquisition of the suit properties
with full compliance of the mandatory provisions contemplated in the
Land Acquisition Act, 1894, because, the defendants have failed to
establish through legally admissible evidence about the acquisition of the
suit properties to the knowledge of its owner, i.e., plaintiff. For which,
the plaintiff has every cause of action to file suit against the defendants
praying for injuncting them(defendants) permanently from coming over
the suit properties.
11. On being aggrieved with the aforesaid judgment and decree dated
22.12.1989 and 04.01.1990 respectively passed by the 1st appellate court
in T.A. No.08 of 1987 in favour of the plaintiff and against the
defendants, they(defendant nos.1 to 3) challenged the same by preferring
this 2nd appeal being the appellants against the plaintiff arraying the
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plaintiff as respondent no.1 and also arraying the defendant no.4 as
respondent no.2.
13. This 2nd appeal was admitted on formulation of the following
substantial questions of law, i.e.:-
(i) Whether in absence of any pleading or evidence with
regard to non-compliance of the provisions of Sections 4, 6,
9 and 45 of the Land Acquisition Act, 1894, it is open for the
lower appellate court to hold that, the acquisition proceeding
under the Land Acquisition Act, 1894 was ab nitio void from
the very inception?
(ii) Whether in view of the legal presumption relating to
the correctness of the acquisition for public purposes
contemplated under Sections 6 and 3 of the Land Acquisition
Act and Section 114(g) of the Evidence Act, it is just and
proper for the lower appellate court to call upon the
defendants(appellants) to establish that, the provisions were
duly complied with?
(iii) Whether in view of the land particulars given in
Exts.A to J and the description given in the suit schedule,
learned lower appellate court is correct in saying that the
notification and the declaration vide Exts.A and B were
defective on account of typographical mistake in the
description of the village in question?
(iv) Whether in view of the Ext.J, i.e., the certificate issued
by the Land Acquisition Officer showing delivery of
possession of the suit land in favour of the defendant
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no.2(appellant no.2), suit for permanent injunction is
maintainable under law?
14. I have already heard only from the learned Standing Counsel for
the appellants(defendant nos.1 to 3), as none appeared from the side of
the respondent no.1(plaintiff) for participating in the hearing of this 2nd
appeal.
15. When all the above four formulated substantial questions of law
are inter-linked having ample nexus with each other according to the
pleadings of the parties, the findings and observations made by the trial
court and 1st appellate court in their respective judgments and decrees,
then, at this juncture, it is felt proper to take all the substantial questions
of law analogously for their discussions hereunder:-
It is to be seen first that, whether the suit properties have been
acquired by the Government for a public purpose in order to take a canal
through the same and whether such acquisition was within the knowledge
of the plaintiff.
The plaintiff has not offered herself by coming to the witness box
during the trial of the suit to be cross-examined by the defendants and
there is no plausible/reasonable explanation on behalf of the plaintiff
about the cause of her withholding from coming to the witness box to
depose about her case.
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On this aspect, the propositions of law has already been clarified
by the Apex Court in the ratio of the following decisions:-
(i) In cases between Vidhyadhar vrs. Mankikrao and
another : reported in AIR 1999 SC-1441, Rattan Dev vrs.
Pasam Devi : reported in (2002) 7 SCC-441 and Iswar Bhai C
Patel alias Bachu Bhai Patel vrs. Harihar Behera and
another : reported in AIR 1999 S.C.-1341 that, “where, a
party to the suit does not appear into the witness box and
states his/her own case on oath and does not offer
himself/herself to be cross-examined by the other side, a
presumption would arise that, the case set up by him/her is not
correct.”
16. When in this suit/appeal at hand, the plaintiff has not come to the
witness box during trial of the suit to state about her case and when,
she(plaintiff) has not offered herself to be cross-examined by the
appellants(defendants), then, at this juncture, in view of the principles of
law enunciated by the Apex Court in the ratio of the aforesaid decisions,
a presumption can be drawn against her(plaintiff) relating to her case.
17. P.W.1, who is none else, but the son of the plaintiff has admitted
his signature on Ext.G, which was issued by the Land Acquisition
Collector to the plaintiff requesting her(plaintiff) to receive the
compensation amount of the acquired suit properties and P.W.1 has also
deposed that, he(P.W.1) had received that Ext.G on behalf of her mother,
i.e., plaintiff. After receiving such notice vide Ext.G, the notices under
Section 80 of the CPC, 1908 were issued to the defendant nos.1 to 3 by
the plaintiff for filing of the present suit vide T.S. No.105 of 1985 instead
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of approaching any lawful appropriate authorities to challenge the
notifications for acquisition to cancel the same.
The documents vide Ext.A (notification for acquisition), Ext.B
(declaration form), Ext.C (copy of the declaration), Ext.D (letter for
sanction of compensation), Exts.E & F (notices to the plaintiff for
acquisition of the suit properties), Ext.G (notice issued to the plaintiff for
receiving compensation amount of the acquired suit properties) and Ext.J,
(certificate regarding taking up of possession of the suit properties) are
going to show that, the plaintiff was well aware about the acquisition of
the suit properties by the Government for public purpose, i.e., for digging
a canal through the same, but, in spite of knowing that, plaintiff did not
receive the awarded compensation amount of the acquired suit properties
deliberately/intentionally. For which, as per law, the said awarded
compensation amount was deposited in the Government Treasury for
handing over the same to the plaintiff later on at any time as per her
desire, but, instead of receiving such compensation amount, she filed the
suit for permanent injunction vide T.S. No.105 of 1985 against the
defendants praying for restraining the defendants permanently from
coming over the suit properties.
18. The trial court dismissed the suit of the plaintiff on the ground that,
due to valid acquisition of the suit properties of the plaintiff by the State,
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title of the suit properties vested in the State free from all encumbrances,
in which, the plaintiff has no interest. For which, the suit of the plaintiff
for injunction against the defendants is not maintainable. To which,
learned 1st appellate court reversed holding that, there were irregularities
in compliance of the mandatory provisions for acquisition of the suit
properties of the plaintiff. For which, the acquisition proceeding is void
ab nitio and the plaintiff is continuing her ownership and possession over
the suit properties.
The pleadings of the plaintiff do not speak about any challenge by
the plaintiff to the acquisition proceeding relating to the acquisition of the
suit properties by the State.
The suit of the plaintiff against the defendant is for injunction
simpliciter.
Now, it will be seen, whether, the civil court has jurisdiction to
give any finding about any irregularity in the acquisition proceeding in a
suit for injunction simpliciter filed by the plaintiff like this suit at hand,
when there is no pleadings/foundation for the same in the plaint and
when the undisputed public documents vide Exts.A to G and Ext.J are
going to show that, the suit properties have already been acquired by the
State and possession thereof has already been taken by the State on the
basis of acquisition and the awarded compensation amount for such
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acquisition has already been deposited in the Government Treasury for
non-receiving the same by the plaintiff ?
19. On this aspect, the propositions of law has already been clarified
by the Hon’ble Courts and Apex Court in the ratio of following
decisions:-
(i) In a case between May George vrs. Special Tahasildar
and others : reported in (2010) 13 SCC-98–When once land
is vested with the State through acquisition, it cannot be
divested even if there is any irregularity in the acquisition
proceeding.
(ii) In a case between C. Padma and others vrs. Deputy
Secretary to the Government of T.N. and others : reported in
(1997) 2 SCC-627–After vesting of the land in the State
pursuant to the acquisition, the land owners have no right to
challenge the notification for acquisition.
(iii) In a case between Girish Ratilal(Halani) Thakkar and
another vrs. State of Gujarat and others : reported in 2024(1)
Civil Law Judgments-560 (Gujarat)–After vesting of the
land in the State, the owners of the land have no right to
challenge the notification, when, it is forthcoming from the
court about the specific compliance of the procedure
prescribed under the Act for acquisition.
(iv) In a case between Indore Development Authority vrs.
Manoharlal and others : reported in (2020) 8 SCC-129–As
per Sections 16 and 17 of the Land Acquisition Act, 1894, the
acquired property becomes the property of the Government
without any limitation or condition either as to title or
possession. Once land vests in the State free from all
encumbrances, it cannot be divested. If landowner whose
property has been so acquired retains possession thereof, or re-
enters upon the acquired land in some way, he does so only in
the capacity of a trespasser.
(v) In a case between Sri G.V. Reddy vrs. Ministry of
Communication Employees Co-operative Housing Society
Ltd. : reported in 2020(1) CCC-463(Karnakata)–Civil court
has no jurisdiction to examine acquisition proceedings by
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necessary implication. When subject matter, i.e., property was
acquired under Land Acquisition Act, which is special and
comprehensive Act, remedy available to plaintiff even for the
relief of injunction is not coming under Section 9 and order
VII Rule 11 of the CPC or under Article 226 of the
Constitution of India for the maintainability of the suit.
(vi) In cases between State of Bihar vrs. Dhirendra Kumar
and others at (Para-3) : reported in (1995) 4 SCC-229,
Commissioner, Bangalore Development Authority and
another vrs. Brijesh Reddy and another (Para-18) : reported
in (2013) 3 SCC-66 and Sonsai Bhikhuram vrs. Executive
Engineer and others : reported in 2017(Supp.) Civil Court
Cases-294(Chhatisgarh)–Jurisdiction of the Civil Court is
barred to challenge the notifications under Sections 4 and 6 of
the L.A. Act, 1894 and no declaration or permanent injunction
can be granted and the Civil Court is devoid of jurisdiction and
only right available for the person is to approach High Court
or Supreme Court under Articles 226 and 136 respectively.
20. Here, in this suit/appeal at hand, when after acquisition of the suit
properties by the State as per the undisputed public documents vide
Exts.A to G and J, the plaintiff has filed suit for injunction simpliciter
against the defendants indirectly challenging the notifications issued
under Sections 4 and 6 of the L.A. Act, 1894 for acquisition of the suit
properties, then at this juncture, in view of the principles of law
enunciated by the Hon’ble Courts and Apex Court in the ratio of the
above decisions, the suit of the plaintiff in respect of the acquired suit
properties for injunction simpliciter is not maintainable under law, for the
reasons that, due to the acquisition of the suit properties through proper
notifications under L.A. Act, 1894, the suit properties vested in the
Government/State free from all encumbrances, for which, the plaintiff
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has no right or interest in the acquired suit properties other than her right
to receive the deposited compensation amount for such acquisition.
So, the judgment and decree passed by the trial court in dismissing
the suit of the plaintiff was not incorrect under law. For which, the
appellate court should not have reversed the judgment and decree passed
by the trial court.
21. Therefore, there is justification under law for making interference
with the judgment and decree passed by the 1st appellate court in T.A.
No.08 of 1987 through this 2nd appeal filed by the appellants(defendant
nos.1 to 3). As such, there is merit in the appeal of the
appellants(defendant nos.1 to 3). The same must succeed.
22. In result, this 2nd appeal filed by the appellants is allowed on
contest, but, without cost.
The judgment and decree passed by the 1st appellate court in T.A.
No.08 of 1987 is set aside and the judgment and decree passed by the
trial court in T.S. No.105 of 1985 in dismissing the suit of the
plaintiff(respondent no.1 in this 2nd appeal) on contest against the
defendants(appellants) is confirmed.
Signature Not Verified
Digitally Signed ( A.C. Behera )
Signed by: JAGABANDHU BEHERA
Designation: Personal Assistant
Reason: Authentication
Judge
Location: ohc, cuttack Orissa High Court, Cuttack
Date: 12-Mar-2025 18:36:10 th
The 11 of March, 2025/ Jagabandhu, P.A.
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