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IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.255 of 1989 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Dama Maharana Dhoba Rout -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. S.P.Das, Advocate. Mr.P.K.Singh,Adv. For Respondent - Mr. A.K.Patra, Advocate. Mr.N.Patra, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :03.11.2023 :: Date of Judgment :24.11.2023 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The Appellant and the Respondent of this Second Appeal were the
Legal Reasoning
plaintiff and defendant in T.S. No.27 of 1985 and they were the respondent and appellant respectively in the First Appeal vide T.A. No.16 of 1987. 3. The suit of the plaintiff-Dama Maharana (Appellant in this Second Appeal) against the defendant- Dhoba Rout (Respondent in this Second Appeal), was a suit for permanent injunction simpliciter. SA No.255 of 1989 Page 1 of 9 {{ 2 }} 4. The case of the plaintiff in nutshell as per the averments made in his plaint vide T.S. No.27 of 1985 was that, he (plaintiff) by virtue of his purchase to the suit land under registered sale deed dated 27.02.1985 vide Ext.1 from Narayana Das became the owner over the suit land and remained in possession of the same. After purchasing the suit land, he (plaintiff) being the owner thereof raised vegetable crops on the same, but surprisingly on dated 08.07.1985 the defendant having no interest in the suit land created disturbance in his peaceful possession over the suit land and tried to enter into the suit land, for which, he (plaintiff) filed the suit vide T.S. No.27 of 1985 against the defendant praying for restraining him (defendant) permanently from entering into the suit land and from creating any sort of disturbance in his possession over the suit land. 5. Having been noticed from the Court in T.S. No.27 of 1985, the defendant contested the same by filing his written statement after taking his stands inter alia therein that, as per amicable partition between the vendor of the plaintiff i.e. Narayana Das and his three brothers, the suit land along with other lands measuring area of Ac.0.55 dec were allotted into the share of Trinath Das and the said Trinath Das had allowed him (defendant) to cultivate the same through execution of one Muchulika vide Ext.B/1 after taking Rs.300/- as an advance towards premium for the year 1985. Accordingly, the defendant has been possessing the suit land since 1985. The plaintiff is not in possession over the suit land. So, the averments made by the plaintiff in his plaint are all false. The so-called sale deed dated 27.02.1985 said to have been executed by the Narayana Das in favour of the plaintiff is not binding upon him (defendant). Therefore, the suit of the plaintiff is liable to be dismissed. Page 2 of 9 SA No.255 of 1989 {{ 3 }} The further case of the defendant was that, the suit of the plaintiff is bad for nonjoinder of necessary parties i.e. Narayana Das and Trilochan Das. So, according to the defendant, the suit of the plaintiff is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether four number of issues were framed by the Trial Court in T.S. No.27 of 1985 and the said issues are:- Issues Whether the suit is maintainable? (i) (ii) Whether the plaintiff has title to and possession over the suit land? (iii) (iv) What other relief the plaintiff is entitled to? Is the plaintiff liable to be permanently injuncted? 7. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendant, he (plaintiff) examined three witnesses from his side including him as P.W.1 and relied upon series of documents on his behalf vide Ext.1 to Ext.4/D. But, on contrary, the defendant examined two witnesses on his behalf including him as D.W.2 and relied upon several documents from his side vide Ext.A to C. 8. After conclusion of hearing and on perusal of the materials, evidence and documents available on Record, the Trial Court answered all the issues in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the Trial Court in all the issues in favour of the plaintiff, decreed the suit of the plaintiff on contest against the defendant vide its judgment and decree dated 31.08.1987 and 10.09.1987 respectively and restrained the defendant permanently from interfering with the peaceful possession of the plaintiff over the suit land assigning the reasons that, the plaintiff is in possession over the suit land after purchasing the same from Narayana Das, for Page 3 of 9 SA No.255 of 1989 {{ 4 }} which, the defendant cannot be allowed to create any sort of disturbance in the possession of the plaintiff over the suit land. Therefore, the defendant is liable to be injuncted permanently. 9. On being dissatisfied with the aforesaid judgment and decree passed in favour of the plaintiff and against the defendant in T.S. No.27 of 1985, the defendant challenged the same by preferring the First Appeal vide T.A. No.16 of 1987 being the Appellant against the plaintiff by arraying him (plaintiff) as Respondent. 10. After hearing from both the sides, the First Appellate Court allowed the T.A. No.16 of 1987 of the defendant against the plaintiff and set aside the judgment and decree passed by the Trial Court in T.S. No.27 of 1985 and dismissed to the suit vide T.S. No.27 of 1985 of the plaintiff vide its judgment and decree dated 25.04.1989 and 04.05.1989 respectively. 11. On being aggrieved with the aforesaid judgment and decree passed by the First Appellate Court in T.A. No.16 of 1987 against the plaintiff, he (plaintiff) challenged the same by preferring this Second Appeal being the Appellant against the defendant by arraying him (defendant) as Respondent. 12. This Second Appeal has been admitted on formulation of two substantial questions of law i.e.:- <(i) Whether the impugned judgment and decree is liable to be set aside for non-consideration of material evidence on record, such as Ext.2 and 2/A, the rent receipt and Ext.3, the order in the mutation case while reversing the findings of the learned Trial Court on the question of title and possession of the plaintiff over the suit land? (ii) Whether the learned Court below is right in accepting the Memo of allotment of properties Ext.e as a completed partition between the brothers of the vendor of the plaintiff?= 13.
Legal Reasoning
I have already heard from the learned counsels of both the sides. Page 4 of 9 SA No.255 of 1989 {{ 5 }} 14. It is the undisputed case of the parties that, Narayana Das, Harihar Das, Binayak Das and Trilochan Das are four brothers. The suit land along with other lands were the joint family properties of Narayana Das, Harihar Das, Binayak Das and Trilochan Das. Narayana Das is the vendor of the plaintiff. 15. It is the case of the defendant that, as per amicable family partition between Narayana Das, Harihar Das, Binayak Das and Trilochan Das on 21.02.1985 through an unregistered document vide Ext.C, the suit land vide plot No.395 had fallen into the share of Trilochan Das and the said Trilochan Das had allowed him (defendant) to cultivate the same through execution of a document i.e. Muchulika vide Ext.B/1 and on the basis of that, Ext.B/1, he (defendant) is in possession over the suit land. In fact the suit plot No.395 does not find place in Ext.B/1. In nowhere of Ext.B/1, suit plot No.395 has been indicated, but in that Ext.B/1, plot No.396 has been indicated, for which, the defendant has taken the plea that, at the time of preparation of Ext.B/1 for plot No.395, it has been mistakenly written therein as plot No.396. According to him (defendant), the said Muchulika vide Ext.B/1 was executed in his favour in respect of the suit plot No.395, to which, the Trial Court has disbelieved. 16. Undisputedly, the defendant is not the owner of the suit plot No.395, because, in nowhere in his pleading, he has stated about his ownership over the suit plot No.395. The plaintiff in his evidence as P.W.1 has proved the execution and registration of the sale deed vide Ext.1 in respect of the suit land by Narayana Das in his favour and the same has been corroborated by the P.W.2. SA No.255 of 1989 Page 5 of 9 {{ 6 }} The own brother of the vendor of the plaintiff i.e. Trilochan Das (through whom, the defendant is claiming possession over the suit land) has been examined as D.W.1. The said Trilochan Das (D.W.1) has deposed in his evidence by stating specifically that, <absolutely he has no objection to the alienation of the said land made by his brother Narayana Das to the plaintiff through registered sale deed vide Ext.1. He (D.W.1) does not lay any claim over the suit land, as it has been sold by his brother Narayana Das. He has never possessed the suit land, but the plaintiff was possessing it.= 17. In the above manner, the own witness of the defendant i.e. D.W.1, who is the own brother of the vendor of the plaintiff, through whom, the defendant is claiming his possession over the suit land has given a complete good bye to the claim of the possession of the defendant over the suit land by deposing that, he has absolutely no objection to the alienation of the suit land made by his brother Narayana Das through registered sale deed dated 27.02.1985 vide Ext.1 in favour of the plaintiff and he does not lay any claim over the suit land, as it has been sold by his brother Narayana Das to the plaintiff and he has never possessed the suit land, but the plaintiff was possessing it. 18. The above evidence of D.W.1 in support of the case of the plaintiff has also been corroborated through the oral and documentary evidence adduced on behalf of the plaintiff including the sale deed vide Ext.1 executed by Narayana Das (brother of D.W.1) in favour of the plaintiff along with the mutated R.O.R. vide Ext.3 and the rent receipts vide Ext.2 Series. After purchasing the suit land through the sale deed vide Ext.1, the plaintiff has mutated the same to his name and after mutation, separate Page 6 of 9 SA No.255 of 1989 {{ 7 }} R.O.R. of the suit land vide Ext.3 has been prepared in his name exclusively and he (plaintiff) has been paying rent for the same to the Government regularly and has been obtaining the rent receipts thereof vide Ext.2 Series. 19. The law concerning the evidence relating to the possession on the basis of the order of mutation and payment of rent has already been clarified by the Hon’ble Courts in the ratio of the following decision:- (1990) O.J.D 560 (Civil)—Ramakanta Padhi Vrs. 32 Bholanath Praharaj4Proof of possession of land4Rent receipts and mutation orders are good evidence of possession4 The facts and circumstances of the case are to be taken into consideration. 20. The suit of the plaintiff was a suit for permanent injunction simpliciter. It is very fundamental in civil law that, in a suit for permanent injunction simpliciter like this suit at hand, the plaintiff is to prove his actual possession over the suit land on the date of filing of the suit in order to get such relief in his favour. 21. Here in this suit at hand, as per the discussions and observations made above, the plaintiff has become able to establish his possession over the suit land on the date of filing of the suit by adducing oral and documentary evidence from his side, which has been corroborated through the evidence of the own witness of the defendant i.e. D.W.1 (who is none else, but the own brother of the vendor of the plaintiff, through whom, the defendant is claiming his possession over the suit plot No.395 on the basis of the Ext.B/1, through there is no indication of suit plot No.395 in that Ext.B/1). SA No.255 of 1989 Page 7 of 9 {{ 8 }} 22. When the suit of the plaintiff against the defendant is a suit for permanent injunction simpliciter and when the plaintiff has become able to establish his possession over the suit land on the basis of the oral and documentary evidence as per the discussions and observations made above, then at this juncture, in order to answer the substantial questions of this Second Appeal, the following decisions of Hon’ble Courts and Apex Court in the like nature cases can be referred to:- (i) (ii) (iii) 2019 (3) Civil Court Cases 787 (Himachal Pradesh)—Siri Ram & others Vrs. Rakesh Kumar—(Paragraph-9)— for Specific Relief Act, 1963—Section 38—Suit permanent injunction4Once it is proved that, the plaintiff is in possession, then regardless of title of property or capacity in which, the plaintiff is holding property, he would normally be entitled to injunction. 2021 (1) C.C.C. 155 (S.C)—A. Subramanian & another Vrs. R. Pannerselvam—Specific Relief Act, 1963— Section 37 and 38—suit for the plaintiff, has proved his right as well as possession over the suit property, he is entitled for the decree of injunction. injunction4when 2008 (2) Civil Court Cases (S.C) 277—Sri Thimmaiah Vrs. Shabira & others—Specific Relief Act, 1963— Section 37 and 38—Permanent injunction4Plaintiff has to establish that, he is in possession in order to be entitled to a decree for permanent injunction. 23. Here in this suit at hand, when the plaintiff has become able to establish his right as well as possession over the suit land and when the defendant has not been able to show his any interest over it, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to supra, an irresistible conclusion is hereby drawn concurring the findings of the Trial Court and disregarding the findings of the First Appellate Court that, the plaintiff is entitled for the decree of permanent injunction against the defendant in respect of the suit land. For SA No.255 of 1989 Page 8 of 9 {{ 9 }} which, there is justification under law for making interference with the judgment and decree passed by the First Appellate Court through this Appeal filed by the Appellant/plaintiff. 24. Accordingly, there is merit in the Appeal filed by the Appellant. The same must succeed. In the result, the Appeal filed by the Appellant is allowed on contest against the Respondent, but without cost. The judgment and decree dated 25.04.1989 and 04.05.1989 respectively passed in T.A. No.16 of 1987 by the First Appellate Court are set aside. The judgment and decree dated 31.08.1987 and 10.09.1987 respectively passed in T.S. No.27 of 1985 by the Trial Court in favour of the plaintiff and against the defendant are confirmed. Orissa High Court, Cuttack. 24th November, 2023//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa Date: 29-Nov-2023 14:35:53 SA No.255 of 1989 Page 9 of 9