Acceptance of public document could not be refused unless challenged: High Court of Odisha
In the present case, an appeal is preferred under section-100 of CPC in assailing the judgment and decree passed by the Additional District Judge. By the same, learned First Appellate Court has confirmed the judgment and decree dated 18.4.2015 and 25.4.2015 respectively passed by the learned Civil Judge (Junior Division). A single-judge bench comprising of Justice D. Dash adjudicating the matter of Kasturi Mohanty v. Ajaya Kumar Pani & Others (RSA No. 40 of 2021) dealt with the issue of whether to allow the present appeal or not.
It is pertinent to state here that the husband of this present Appellant was the Defendant before the Trial Court and having suffered from the judgment and decree passed; he had preferred the First Appeal. The said original Defendant having died after disposal of the First Appeal, his wife being the legal representative as the sole Appellant has presented the Second Appeal.
Plaintiff’s suit is for a permanent injunction against Defendant in restraining him from making any construction over the suit land and block passage and interfere in any manner in respect of the user of the suit land. Bipini Bihari Pattnaik the said owner of the land stated that from out off the total land of Ac.0.14 dec., its middle portion measuring Ac.0.04 decimal had been sold by him to the Plaintiff by the registered sale deed dated 14.10.09 on receipt of valuable consideration and he had delivered the possession of the same. The Plaintiff after purchase of the suit land on his move has converted its kisam to homestead by the order passed by the Competent Authority in OLR No. 72 of 2009. It is said that the land is situated on the eastern side of the above purchase land of the Plaintiff and it belongs to the Govt. in the Irrigation Department and that is now the subject matter of the suit. The said land is belonging to Defendant originally. It is acquired by the State with other properties for the purpose of construction of the canal, canal road has been running over the suit land in the direction north-south touching the main road at Jayaguru Ashram on the northern and southern sides which ultimately join at Delta Chaka.
As per the case of Plaintiff, the suit land is used as road and it is the embankment of the canal. Since the acquisition of the land Defendant has no right, title, interest, and possession of the same. Plaintiff claims to be using the said land as a road as it runs which situates just in front of their land. On 20.6.13 since Defendant advanced a false claim over the suit land that it belongs to him and threatened to make construction over the same; the suit for injection was hence filed.
Defendant stated that Plaintiff is not in possession of the suit at any point of time within 12 years hence the plaintiff has no cause of action to file the suit and hence suit for a permanent injunction is not maintainable.
The appellant submitted that the Lower appellate court is not at all justified in holding that the evidence on record reveal that the canal road is being used as a public road and the findings on that score are wholly perverse as the same is based of no evidence. He further submitted that the courts below ought to not have invented a third case for granting the relief sought for by the Plaintiff and the Lower Appellate Court has also committed grave error by accepting the notification of the Govt. dated 27.12.68 in the Department of Revenue and taking the same into consideration.
The Court held that “in the absence of any challenge to its genuineness or authenticity, the acceptance of the same could not have been refused under any circumstance as that is a public document and practically, there was no scope to lead rebuttal evidence as to said factual aspect as that disputed fact from the said notification itself stood conclusive enough for being accepted. So, the First Appellate Court in my view did commit no mistake in doing that. The notification being accepted, the case of the Defendant as to his ownership of the said land is cut through and through at the root itself. Under such circumstances, the finding of the Lower Appellate Court that said suit land recorded in the name of Irrigation Department is being used as public road is viewed as unassailable both on fact and law. Accordingly, the findings entitling the Plaintiffs to the reliefs as have been granted are found to be well in order. Accordingly, the submissions of the learned counsel for the Appellant fail.”