G.B. Patnaik, J.
1. Plaintiff is the appellant against a reversing judgment in a suit for declaration of title over a strip of land measuring 2'6' x 23' adjoining south of plaintiff's holding No. 81 of Ward No. 8 and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the suit land.
2. The defendants are the Executive Officer and the Chairman of the Notified Area Council, Gunupur. According to the plaint case, plaintiff's father and his cousin brother purchased a piece of land sometime in the year 1936 measuring 135'3' x 23' and sold to one Ladi Appana towards the extreme south. The remaining portion was divided in a family partition in the year 1958 and plaintiff's share fell to its extreme south. The Notified Area Council assessed the shop building The plaintiff also constructed a verandah over the land which was left while constructing the building. On 6-9-1975 the Notified Area Council issued a notice to remove the aforesaid verandah and on 6-10-1975, the said verandah was forcibly demolished on the ground that it was an encroachment on the Notified Area Council drain. Hence the present suit for declaration of title and for injunction. It has also been averred in the plaint that plaintiff's father had filed a suit in the Court of the Subordinate Judge, Jeypore, being O. S. No. 44 of 1946 against the Union Board and another person named Karunakar Behera in whose favour the Union Board has granted a lease and in that suit for declaration of right, title and interest, the Union Board conceded to the plaintiff's right and cancelled the lease granted to Karunakar who contested the suit, but lost both in the Trial Court as well as in the High Court in the First Appeal No. 49 of 1949. On 4-2-1954 delivery of possession of the suit land was given to plaintiff's father by the process server of the Court of the Munsif, Gunupur, in Execution Case No. 8 of 1953. Plaintiff was continuing to remain in peaceful possession until the Notified Area Council gave notice on 6-9-1975 to remove the alleged encroachment.
3. The defendant's case is that the Municipality road runs to the adjacent south of the plaintiff's building and is six feet in width and plaintiff unauthorisedly constructed over the said road encroaching 21/2' width and, therefore, after giving due notice, the encroachment was removed. It has been further pleaded that the suit is not maintainable as statutory notice on the Municipality under the Orissa Municipal Act has not been given.
4. On these pleadings the learned Additional Munsif found the plaintiff' had right, title and interest over the suit land. He also recorded a finding that at the time of hearing Issues 4, 6, 9 and 10 were not pressed, Issue 4 being whether the suit was bad for non-service of notice. On consideration of the evidence on record, he decreed the suit and declared the plaintiff's' right over the strip of land measuring 2'6' x 23' in Holding No. 81 of Ward No. 8 within Gunupur Notified Area Council and injuncted the defendants from interfering with the possession of the plaintiff in any manner over the said strip of land.
5. On appeal, the learned Subordinate Judge had formulated three propositions namely (1) whether the plaintiff has title over the suit land; (ii) whether the suit is bound to fail for non-compliance of statutory notice and (iii) whether the suit is bad for non-asking for consequential relief. On the first proposition, he found that the plaintiff had not been able to prove his title over the suit site. In other words the finding of the learned Munsif on this aspect was reversed. On the second point, he found that the suit must fail as the mandatory requirement of giving notice under Section 349, Orissa Municipal Act, had not been complied with. On the third point also, he found that by not seeking consequential relief, the plaintiff deprived the Court to grant him a simple declaratory decree and the suit was not maintainable on that score. Having thus found in favour of the defendants on all the three propositions formulated by him he allowed the appeal dismissing the plaintiff's suit.
6. Mr. B.L.N. Swamy, appearing for the plaintiff-appellant has raised three contentions challenging the judgment of the lower appellate Court.: --
(i) The finding that the plaintiff has not been able to prove his title over the suit site is based on erroneous appreciation of evidence and non-consideration of material evidence.
(ii) In the facts and circumstances of the present case, Section 349, Orissa Municipal Act, has no application, and at any rate, the said issue not having been pressed by the defendants, it was not open for the lower appellate Court to consider the same; and
(iii) The suit being one for title and for permanent injunction, the prayer for injunction is to be construed as a consequential relief and Section 34, Specific Relief Act, will not operate as, a bar.
Mr. Pal, the learned Counsel appearing for the defendants-respondents, on the other hand has submitted that (the finding that) the plaintiff has failed to prove his title is based on consideration of all relevant materials and is one of fact which cannot be set aside in second appeal. It has been further urged that non-compliance of the mandatory requirement of Section 349, Orissa Municipal Act, is a pure question of law which can be urged even if the issue pertaining to the same was not pressed in the Court below. He has also submitted that the plaint read as a whole would show that the suit is one merely for a declaration without any consequential relief and, therefore, the suit must be held to be barred under Section 34. Specific Relief Act.
7. It would not be necessary for me to decide the second and third contentions if the finding of the lower appellate Court regarding plaintiff's failure to prove his title is confirmed in the second appeal and, therefore, I would discuss the said question first. According to Mr. Swamy, the learned Counsel for the appellant, the lower appellate Court committed a basic error by holding that the disputed plot was really holding No. 181 and not 81 of Ward No. 8 and this basic error has vitiated the entire judgment. According to him there has been an amendment with regard to the Holding Number by order dated 7-1-1975 which the lower appellate Court has failed to take note of. He has further submitted that Exhibit-C is not a Survey Map but a Trace map and, therefore, should not have been relied upon by the lower appellate Court. He has further contended that stray admission of P.W. 3 could not have been considered in isolation and the evidence of P. W. 3 should have been construed as a whole. According to him, the lower appellate Court also did not consider the voluminous and weighty reasonings of the trial Court while setting aside the findings, and, therefore, committed an error of law.
To my mind all these submissions are of no consequence. The point in controversy is whether the plaintiff's land is bounded on the South by the land of Laddi Appana or there is an intervening space on which the Municipal drain runs.' The lower appellate Court considered the map (Ext. C) which had been prepared by D. W. 1; the admission of P. W. 3 who is nobody than plaintiff's uncle to the effect that the suit site is bounded to the south by a road, the Registered Deed of partition (Ext. 7); the plan approved by the Municipality (Ext. 8) together with the width of the shop room and the wall of the said room; the orders of the competent authority under the Orissa Prevention of Land Encroachment Act (Exts. 2, 3 and B) and the oral evidence adduced on behalf of the plaintiff and the defendants and then came to the conclusion that the suit site was a portion of the Municipal Road joining the Daily Market Road with the Bada Bazar Road and it was being so used for the last 30 years or so. In this view of the matter, it cannot be said that either the lower appellate Court has not considered any material piece of evidence or has construed the evidence in such a manner on the basis of which no reasonable man came to the conclusion which has been arrived at by the lower appellate Court. The submissions of the learned Counsel for the appellant are in the realm of appreciation of evidence. The appreciation made by the lower appellate Court does not appear, to be in any way perverse so as to be interfered with by this Court in second appeal. In my view, the finding of the lower appellate Court that plaintiff has not been able to prove his title over the suit site is a pure finding of fact based on considerations of all the relevant materials on record, and the said finding, therefore cannot be interfered with, in this second appeal. In this view of the matter, it is not necessary for us to consider the two other submissions of the learned counsel for the appellant.
8. In the result, therefore, I do not find any merits in the second appeal, which is accordingly dismissed, but there would be no order for costs.