The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.153 of 1993 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Manguli Sha Kirtan Sahu and others Appeared in this case:- -versus- …. …. Appellant Respondents For Appellant For Respondents : : Mr. A.K. Mishra, Advocate Mr. M. Sinha, Advocate Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 11.01.2024 / date of judgment :15.02.2024 A.C. Behera, J. This 2nd appeal has been preferred against the part reversing judgment. 2.
Legal Reasoning
The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.47 of 1988-I and he was the respondent no.1 before the 1st appellate court vide T.A. No.09 of 1991. 3. The respondents of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.47 of 1988-I and they were the appellants and respondent nos.2 to 4 before the 1st appellate court in T.A. No.09 of 1991. // 2 // The suit of the plaintiff (appellant of this 2nd appeal) before the trial court vide T.S. No.47 of 1988-I was a suit for declaration and permanent injunction. 4. As per the plaint of the plaintiff in T.S. No.47 of 1988-I, the suit properties are Schedule-Ka and Ka-1, both. Schedule-Ka-1 properties are the part of Schedule-Ka properties. 5. The suit properties are under Khata No.426 Plot No.3982. The RoR of the suit Khata No.426 Plot No.3982 Ac.0.02 decimals was published in the name of Sanbhima Sha. Out of Ac.0.02 decimals of land of suit Plot No.3982, Ac.0.01½ decimals of land (described in Schedule- Ka of the plaint) was under the possession of plaintiff twenty-five years prior to the publication of RoR, but, Ac.0.00 ½ decimals of land of Plot No.3982 was under the possession of Sanbhima Sha. So, Sanbhima Sha sold that Ac.0.00½ decimals of land of Plot No.3982 (which was under the possession of Sanbhima Sha), to the plaintiff by executing and registering a sale deed on dated 08.06.1973 and delivered possession thereof. After purchasing that Ac.00½ decimals of land of suit Plot No.3982 from Sanbhima Sha, the plaintiff kept the entire Ac.0.02 decimals of land of suit Plot No.3982 within one enclosure. As the entire area of the suit Plot No.3982 remained under the exclusive possession of the plaintiff, for which, Sanabhima Sha was agreed to execute and register a sale deed in respect of the rest Ac.0.01½ land of suit Plot No.3982, i.e., in respect of Schedule-Ka properties in favour of the plaintiff, for which, he (Sanabhima Sha) received Rs.300/- from the plaintiff on dated 15.12.1983. But, the defendant no.1 being fully aware about the possession of the entire suit Plot No.3982 by the plaintiff since long, he (defendant no.1) managed to execute a sale deed for Ac.0.01 decimal of land (described in Schedule-Ka-1) of that suit Plot No.3982 on dated 05.03.1987 as per sale deed vide Ext.A from Sanabhima Sha, // 3 // without taking the delivery of possession of the same. As, the entire suit Plot number 3982 was/is under the exclusive possession of the plaintiff, for which, he (plaintiff) has already perfected his title over the properties described in Schedule-Ka of the plaint by possessing the same continuously for more than two decades to the knowledge of all including Sanbhima Sha and defendants. Therefore, in the Hal settlement, the note of possession of the plaintiff in respect of the suit plot no.3982 was indicated. As, the defendant no.1 could not take the delivery of the possession of the suit properties described in Schedule-Ka-1 either from Sanabhima Sha or from the plaintiff, for which, the defendant no.1 executed a sale deed showing the selling of that Ac.0.01 decimal of land (described in Schedule-Ka-1) in favour of the defendant nos.2 to 4 through a sale deed dated 29.04.1987 vide Ext.B. Thereafter, when, the defendants created disturbances in the possession of the plaintiff over the suit properties described in Schedule-Ka, then the plaintiff approached the civil court by filing the suit vide T.S. No.47 of 1988-I against the defendants praying for declaration of his title over the properties described in the Schedule-Ka and Ka-1 of the plaint, stating that, Schedule-Ka-1 properties are the part of Schedule-Ka properties and also to declare that, the sale deed vide Ext.A said to have been executed by Sanabhima Sha in favour of the defendant no.1 in respect of Schedule- Ka-1 properties is not binding upon him (plaintiff) and to injunct the defendants permanently by restraining them(defendants) from interfering into the possession of the plaintiff over the suit properties described in Schedule-Ka and Ka-1 of the plaint. 6. Having been noticed from the trial court in T.S. No.47 of 1988-I, the defendant nos.1, 2, 3 and 4 contested the same by filing their joint written statement denying the allegations alleged against them by the plaintiff in his plaint taking their stands therein that, the plaintiff was/is // 4 // never in possession of Ac.0.01½ of land described in Schedule-Ka of the plaint. But, Sanabhima Sha was the owner of total Ac.0.02 decimals of land of suit Plot No.3982. The plaintiff has purchased only Ac.0.00½ decimal of land out of Ac.0.02 decimals of suit Plot No.3982 through the sale deed vide Ext.1 dated 08.06.1973, for which, the plaintiff is not the owner of Schedule-Ka or Ka-1 of the land and he(plaintiff) is also not in possession over Schedule-Ka or Ka-1 land. The plaintiff has managed to make entry of his name as “Jabara Dakhalakar” in the Hal RoR of the suit land. After selling Ac.0.00½ decimal of land from suit Plot No.3982, Sanabhima Sha had remained as owner and in possession over the rest Ac.0.01½ decimal of land of suit Plot No.3982 and he(Sanabhima Sha) sold Ac.0.01 decimal out of Ac.0.01 ½ decimals of land of suit Plot No.3982 to the defendant no.1 on dated 05.03.1987 by executing and registering a sale deed vide Ext.A. Accordingly, the said purchased Ac.0.01 of land described in Schedule-Ka-1 remained in the possession of the defendant no.1 and he (defendant no.1) possessed the same being the exclusive owner thereof. Thereafter, he(defendant no.1) sold his above purchased of land, described in Schedule-Ka-1 to defendant nos.2, 3 and 4 on dated 29.04.1987 through the sale deed vide Ext.B and accordingly, the defendant nos.2, 3 and 4 are possessing the properties described Schedule-Ka-1 being the owners thereof. For which, the plaintiff has no interest over the suit properties described in Schedule-Ka and Ka-1 of the plaint, because, the defendant nos.2, 3 and 4 are the owners thereof. Therefore, the suit of the plaintiff is liable to dismissed against them (defendants) with costs. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the trial court in T.S. No.47 of 1988-I and the said issues are:- // 5 // I S S U E S 1. Whether the plaintiff purchased the suit land from sanabhima Sha? 2. Whether the plaintiff possessed the land for the statutory period and perfected his title? 3. Whether sale deed of defendant no.1 is valid and genuine? 4. Whether the defendant no.1 was competent to sell suit land to other defendants? 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether the court fee paid is correct? 7. Whether there is any cause of action? 8. To what relief, if any, the plaintiff is entitled for? 8. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants, he (plaintiff) examined altogether five numbers of witnesses from his side including him(plaintiff) as P.W.1 and relied upon three documents on his behalf vide Exts.1 to 3. 9. In order to nullify/defeat the suit of the plaintiff, the defendants examined four witnesses from their side including the defendant nos.1 and 2 as D.Ws.3 and 4 and relied upon two documents on their behalf, i.e., two sale deeds dated 05.03.1987 and 29.04.1987 vide Exts.A and B respectively. 10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendants and basing upon the findings and observations made by the trial court in the issues in favour of the plaintiff and against the defendants, the trial court // 6 // decreed the suit of the plaintiff vide T.S. No.47 of 1988-I on contest against the defendants as per its judgment and decree dated 25.07.1991 and 13.08.1991 respectively and declared the right, title, interest and possession of the plaintiff over the suit land and also declared that, the sale deed dated 05.03.1987 vide Ext.A is not binding on the plaintiff and injuncted the defendants permanently by restraining them (defendants) from interfering with the possession of the plaintiff over the suit land assigning the reasons that, on the basis of long and continuous possession of the plaintiff over the suit properties for more than 25 years before 08.06.1973, he(plaintiff) has perfected his title over the suit properties through adverse possession. 11. On being dissatisfied with the aforesaid judgment and decree passed by the trial court against the defendants in T.S. No.47 of 1988-I, the defendant nos.1 to 4 challenged the same by preferring the 1st appeal vide T.A. No.09 of 1991 being the appellants against the plaintiff by arraying him (plaintiff) as respondent no.1 and also arraying the defendants 5 to 7 as respondent nos.2, 3 and 4 respectively. 12. After hearing from both the sides, the 1st appellate court passed the judgment and decree of that 1st appeal vide T.A. No.09 of 1991 on dated 11.05.1993 and 26.06.1993 respectively and allowed that 1st appeal vide T.A. No.09 of 1991 in part and set aside the judgment and decree of the trial court and declared the title of the plaintiff over Schedule-Ka and confirmed his possession, i.e., the possession of the plaintiff over Schedule-Ka land and also declared that, the sale deed dated 05.03.1987 vide Ext.A and the sale deed dated 29.04.1987 vide Ext.B are legal and the defendant no.2 has acquired the valid title in Schedule-Ka-1 land of the plaint. // 7 // 13. On being aggrieved with the aforesaid judgment and decree dated 17.09.1988 and 05.10.1988 respectively passed by the 1st appellate court in T.A. No.09 of 1991 allowing that 1st appeal preferred by the defendant nos.1 to 4 in part, against the plaintiff(who was the respondent no.1 in that 1st appeal), he(plaintiff) challenged the same by preferring this 2nd appeal being the appellant against all the defendants by arraying them (defendants) as respondents. 14. This 2nd appeal was admitted on formulation of the following substantial question of law:- Whether the findings of the 1st appellate court regarding the validity of the deed vide Ext.A in respect of Schedule-Ka-1 is valid? 15.
Legal Reasoning
I have already heard from the learned counsels of both the sides. 16. The area of Schedule-Ka land is Ac.0.01½ decimals out of Ac.0.02 decimals of Plot No.3982 under Khata No.426 in Mouza-Khalana. The area of Schedule-Ka-1 land is Ac.0.01 decimal out of Ac.0.02 decimals of Plot No.3982 under Khata No.426 in Mouza-Khalana. Accordingly, the Schdule-Ka-1 land is the part of Schedule-Ka land. 17. According to plaint, both the Schedules, i.e., Schedule-Ka and Schedule-Ka-1 are the suit properties. As per the judgment and decree passed by the trial court in T.S. No.47 of 1988-I, the trial court declared the right, title, interest and possession of the plaintiff over the entire suit properties and injuncted the defendants permanently from interfering into the possession of the plaintiff over the suit properties with a further declaration that, the deed vide Ext.-A is not binding upon the plaintiff. // 8 // Accordingly, the trial court decreed the suit of the plaintiff vide T.S. No.47 of 1988-I in full granting all the prayers in favour of the plaintiff and against the defendants. In the judgment and decree of the 1st appeal vide T.A. No.09 of 18. 1991 preferred by the defendant nos. 1 to 4 against the plaintiff, the 1st appellate court allowed the 1st appeal of the defendant nos.1 to 4 in part and set aside the judgment and decree of the trial court passed in T.S. No.47 of 1988-I and declared the title of the plaintiff over Schedule-Ka land and also confirmed the possession of the plaintiff over that Schedule-Ka land like the trial court and the 1st appellate court also declared the title of the defendant no.2 over Schedule-Ka-1 land and also declared that, the sale deed dated 05.03.1987 vide Ext.A and the sale deed dated 29.04.1987 are legal. 19. On being dissatisfied with the aforesaid 2nd part of the judgment and decree passed by the 1st appellate court in T.A. No.09 of 1991 in favour of the defendants and against the plaintiff, he (plaintiff) challenged only that part of judgment and decree of the 1st appellate court by preferring this 2nd appeal being the appellant against the defendants, by arraying them (defendants) as respondents. The respondents(defendants) contested this 2nd appeal filed by the plaintiff without filing any cross-objection or independent appeal, but, they (respondents/defendants) argued only in support of the above judgment and decree passed by the 1st appellate court. 20. Accordingly, the defendants have not challenged the declaration of title of the plaintiff over Schedule-Ka land and confirmation of his possession thereon passed by the 1st appellate court. So, due to non- challenge to the above judgment and decree passed by the 1st appellate court in favour of the plaintiff by any of the defendants including // 9 // defendant nos.1 and 4 in any manner, the question of interfering with that part of judgment and decree passed by the 1st appellate court in T.A. No.09 of 1991 in favour of the plaintiff in respect of declaration of title of the plaintiff over Schedule-Ka suit properties and the confirmation of his possession thereon does not arise through this 2nd appeal filed by the plaintiff(appellant). Because, the plaintiff has not challenged that part of judgment of the 1st appellate court, which was passed/decreed in his favour. For which, the declaration of title of the plaintiff over Schedule- Ka properties, i.e., the entire suit properties and the confirmation of his possession thereon passed/decreed by the 1st appellate court in its judgment and decree of T.A. No.09 of 1991 has already been reached in its finality between the parties. 21. Therefore, it can automatically be held that, the sale deed executed by Sanabhima Sha in favour of the defendant no.1 in respect of Schedule- Ka-1 land vide Ext.A and the subsequent sale deed in respect of that Schedule-Ka-1 land by defendant no.1 in favour of defendant nos.2 to 4 on the basis of Ext.-A are not valid and legal. 22. So, due to confirmation of the above 1st part of the judgment and decree passed by the 1st appellate court about the declaration of title of the plaintiff over Schedule-Ka land and the confirmation of his possession thereon, the 2nd part of the judgment and decree passed by that 1st appellate court in T.A. No.09 of 1991 about the declaration of title of the defendant no.2 over Schedule-Ka-1 land and as well as declaration of the sale deed dated 05.03.1987 vide Ext.A and the sale deed dated 29.04.1987 vide Ext.B as legal in favour of the defendants cannot be sustainable under law. 23. When in the 1st part of the conclusive portion of the judgment and decree of the 1st appellate court in T.A. No.09 of 1991, the title of the // 10 // plaintiff over Schedule-Ka properties has been declared and the possession of the plaintiff thereon has been confirmed and when Schedule-Ka-1 properties are the part/portion of the Schedule-Ka properties, then, at this juncture, the declaration of title of the defendant no.2 over Schedule-Ka-1 properties and as well as the declaration that the sale deeds in favour of the defendants in respect of the Schedule-Ka-1 properties as legal/valid passed by the 1st appellate court in the next part of the conclusive portion of its judgment and decree cannot be sustainable under law. Because, in the first part of that judgment, the title and possession of the plaintiff over the entire suit properties have already been declared, as Schedule-Ka-1 is within the Schedule-Ka being a part thereof. 24. As per the discussions and observations made above, when it is held that, the next part of the judgment and decree passed by the first appellate court in T.A. No/.09 of 1991 in favour of the defendants in respect of the declaration of title of the defendant no.2 over Schedule-Ka- 1 properties and as well as the declaration that, the sale deeds vide Exts.A and B as legal/valid are not sustainable under law, then at this juncture, there is justification under law for making interference with the above 2nd part of the judgment and decree passed by the 1st appellate court through this 2nd appeal filed by the appellant(plaintiff). As such, there is merit in the appeal of the appellant(plaintiff). The same must succeed. 25. In the result, the 2nd appeal filed by the appellant(plaintiff) is allowed on contest, but without cost. 26. The 2nd part (portion) of the judgment and decree passed by the 1st appellate court in its judgment and decree dated 11.05.1993 and 26.06.1993 respectively in T.A. No.09 of 1991, i.e., declaration of title of // 11 // the defendant no.2 over Schedule-Ka-1 land as well as the declaration that, the sale deed dated 05.07.1983 (Ext.A) and sale deed dated 29.04.1987 as legal along with granting up of liberty to the defendant no.2 to recover possession of Schedule-Ka-1 land from the plaintiff in due process of law are set aside. 27. The judgment and decree dated 25.07.1991 and 13.08.1991 respectively passed by the trial court in T.S. No.47 of 1988-I in favour of the plaintiff and against the defendants are confirmed. Judge Orissa High Court, Cuttack The 15th of February, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: eMudhra.App.Views.PartialControls.SigningModeTab.SigningTabVie wModel Location: OHC, CUTTACK Date: 19-Feb-2024 07:19:57