Albeena Minj v. The Andaman And Nicobar Administration And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** SAT/10/2023 Albeena Minj Vs.

The Andaman and Nicobar Administration and others Mr. KMB Jayapal ... for the appellant January 9, 2024 [SR] Item No.9 Leave is granted to the appellant to incorporate the name of the defendant No.4 as a respondent in the array of the respondents in the memorandum of appeal. The memorandum of appeal be corrected accordingly.

Being aggrieved by the judgment and decree dated September 22, 2023 passed by the learned Additional District Judge at Port Blair, District South Andaman in Title Appeal No.01 of 2016, thereby, affirming the judgment and decree dated December 15, 2015 passed by the learned Civil Judge, Junior Division, First Court at Port Blair in Title Suit No.13 of 2011, the appeal has been filed. The matter came up for hearing under Order 41 Rule 11 of the Code of Civil Procedure. The plaintiff is the appellant before the Court. The grounds of challenge of the judgments and decrees are that both the learned Courts failed to appreciate the evidence put forward by the plaintiff.

This is a suit for possessory right, title, interest and permanent injunction in respect of a plot of land, which according to the plaintiff, had been used and occupied by the plaintiff since 1980. The plaintiff claimed to be an encroacher

in respect of the said land. The land was recorded in the name of the Central Government and was a government revenue land, as per the plaintiff. The encroached land is Survey Plot No.2421/P, measuring about 65 sq.mtrs situated at Shadipur. As per the scheme for regularisation of the occupation of such encroachers, the plaintiff claimed the right to remain in the premises. The plaintiff prayed for such declaration in respect of the said suit plot, on the ground of possession by way of encroachment and of having constructed a temporary dwelling house on such property.

The plaintiff examined two witnesses, i.e herself and PW-2. PW-2 was the Revenue Inspector. Both the learned courts examined the evidence filed by the plaintiff and came to the conclusion that the plaintiff failed to show any document, which would indicate that the plaintiff was an encroacher in respect of the property in question since 1980. The plaintiff relied upon the electricity bills and water bills, but the learned courts held that those bills would not be strict proof of encroachment, since 1980.

At the time of obtaining such connection, the plaintiff filed undertakings that no equity would be claimed in respect of the said connection and the plaintiff would not claim any right, and interest in respect of the land, in which such connection was given.

The evidence of PW-2 i.e the Revenue Inspector was also considered by the learned Courts and the courts found that the Milan Khatuni Register, of village Shadipur, did not indicate that survey plot no.2421/P (suit plot) fell within Shadipur village and was a government revenue land. Rather,

the Courts gave weightage to the Exhibits A, B, C, D, E & F, which were the documents relied upon by the respondents. These exhibits reflected that the plaintiff's husband namely, Paskal Ekka, was an employee of the Police Department. The Police Department had allotted quarters to him. The quarters were adjacent to the suit plot. Gradually, Paskal Ekka encroached into the suit plot from 2011, onwards. Notices were given to Paskal Ekka, asking him to remove the encroachment and vacate the said plot. As Paskal Ekka failed to do so, he was suspended from service in contemplation of a disciplinary proceeding. The suit plot, according to the respondents, belonged to the Police Department. Thus, the evidentiary value of the documents filed by the defendants/respondents herein, were found to be better evidence and acceptable by the Court.

Mr. Jayapal, submits that the substantial question of law, which would merit admission of the appeal, was nonconsideration of the Milan Khatuni Register. The register did not also mention that the suit plot belonged to the Police Department. Hence, the courts ought to have decreed the suit. Such contention of Mr. Jayapal, is not acceptable to us. The Milan Khatuni Register was tendered by the PW-2, who was the Revenue Inspector. In his cross-examination, the witness had categorically stated that he was not in a position to show whether the suit plot was a government revenue land or not. He was also not in a position to say whether the suit plot, being survey plot No.2421/P, was mentioned in the said register and the exact location of the said plot could not be pointed out. Thus, Exhibit-G (register) was gone into by both

the Courts below and the Court disbelieved the contentions of the plaintiff. Exhibit G did not indicate that the suit plot belonged to the government. Rather, the evidence adduced by the police department had been scanned. Those documents indicated that since 2011, the police department had tried to evict the husband of the plaintiff and initiated disciplinary proceeding on account of such encroachment. The plaintiff failed to prove encroachment since 1980. Thus the courts dismissed the suit.

Under such circumstances, when all the evidence before the Courts have been considered in great detail and discussed in both the judgments and decrees, we are not inclined to admit the appeal. No substantial question of law is involved. Accordingly, the second appeal is dismissed.

( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )