The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No. 19 of 2002 Haribandhu Sahoo (Dead) By LRs & Others …. Appellants Mr. S. Mishra, Advocate -Versus- Bharat Mohapatra …. Respondent Mr. Niranjan Singh(1), Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:31.07.2023 1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the behest of the appellants assailing the impugned judgment and decree dated 29th September,2001 promulgated in Title Appeal No.10 of 1998 by the learned Additional District Judge, Nayagarh, whereby, decision in T.S No.78 of 1992 dated 20th August, 1998 of the court of learned Civil Judge (Senior Division), Nayagarh was set aside thereby confirming the right, title and interest in respect of the suit schedule property in favour of the respondent on the grounds inter alia that the same is not legally tenable and hence, liable to be interfered with. 2. The respondent instituted the suit in T.S No.78 of 1992 for declaration of title in respect of the suit schedule property and
Legal Reasoning
confirmation of possession thereof or in the alternative, for recovery of its possession as against the appellants with the cause of action that his possession in respect thereof was threatened. The appellants filed their defence and denied the claim of the respondent by pleading that the later was never in possession of S.A No.19 of 2002 Page 1 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra the suit property at any point of time which has been purchased by them corresponding to plot No.880. With such other grounds, a joint Written Statement was filed. The learned Civil Judge (Senior Division), Nayagarh considering the pleadings of the parties in the suit, framed as many as four issues primarily concerning the right, title and interest as well as possession over the suit property, whether, lies in favour of the respondent. Both sides adduced oral and documentary evidence. After taking into account the evidence on record, the Trial Court dismissed the suit. The judgment and decree dated 20th August, 1998 in T.S. No.78 of 1992 was challenged before the Lower Appellate Court in Title Appeal No. 10 of 1998 which was allowed and title was accordingly declared in favour of the respondent in respect of plot No.880. In other words, the decision of the learned Civil Judge (Senior Division), Nayagarh in T.S. No.78 of 1992 was reversed in appeal. Being aggrieved of the findings and decision of the Lower Appellate Court, the appellants have approached this Court challenging that the decree of the Trial Court to be justified and in accordance with law.
Legal Reasoning
3. Heard Mr. Mishra, learned counsel for the appellants and Mr. Singh (1), learned counsel for the respondent. 4. This Court formulated the substantial questions of law which are stated herein below: (i) When admittedly there is no pleading as to the mutation of the suit land in favour of the plaintiff nor about report submitted by the Amin in the said Mutation in case, whether, the accepting Ext.5, the Amin’s report into evidence? learned court below erred (ii) When the settlement record shows that the suit land measures Ac. 0.95 dec. but Ext.5 reveals it to be Ac.1.00 dec, whether, the learned Lower Appellate Court is S.A No.19 of 2002 Page 2 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra justified in relying the same to reach at a conclusion that the plaintiff is in possession over the suit land? (iii) When the settlement entries have a presumptive value with regard to possession and suit plot No. 880 has been recorded in favour of the defendants basing on the sale deed vide Ext.A and plot No.881 stands recorded with the plaintiff on the strength of Ext.1 which was accepted by the latter for 8 long years, whether, the impugned judgment and decree is sustainable in the eye of law? 5. Mr. Mishra, learned counsel for the appellants justified the decree of the Trial Court by contending that the Lower Appellate Court erred in law in relying on Ext.5, a report of the Amin, as the same was beyond pleading and cannot, therefore, be accepted as a part of evidence, inasmuch as, the same was prepared prior to recording of plot No.880 in the name of the appellants by Settlement Authority and hence, it cannot relate to the suit plot and moreover, the respondent himself had raised claim before the Authority vide Ext.1 for recording of plot No.881 and as such, it was so settled with him and was not challenged for nearly 8 long years nor any higher forum was approached for its correction and the said conduct amounts to recognition of the rights of the appellants over the suit plot and while advancing such an argument, a decision of the Apex Court in case of Chairman, State Bank of India and another Vs. M.J. James (2022) 2 SCC 301 has been referred to which is with respect to the law on acquiescence and laches. Mr. Mishra further submits that in view of the above legal position with regard to rule of acquiescence that it is an equitable doctrine based on law of estoppel, respondent lost his right over the suit plot as he did not challenge the Record of Right and possession of the same by the appellants, in a sense, remained silent all along with full knowledge and acceptance of the fact that it is being possessed by the other side. So, therefore, Mr. Mishra submits that the S.A No.19 of 2002 Page 3 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra respondent having acquiesced or having not challenged any such settlement record in respect of plot No.880, the appellant lost the right and title over the same. So, the contention is that the respondent is having no title over suit plot No.880 rather it stands over plot No.881 as per Ext.1 and the learned Lower Appellate Court can, therefore, be said to have committed the error, while overruling the decree of the Trial Court. 6. On the contrary, Mr. Singh (1), learned counsel for the respondent challenged the contention of the appellants with the claim over and in respect of plot No.880 which is the suit schedule plot purchased by the respondent but stood wrongly recorded with the appellants which was corrected by the Lower Appellate Court with reference to the sale deed dated 28th April, 1978 (Ext.1). It is submitted that the Settlement Authority did not have the jurisdiction to settle plot No.881 with the respondent and confirm the title on him when the alleged purchase was and has been in respect of plot No.880, the fact which was completely lost sight of by the Trial Court, so corrected in appeal. According to Mr. Singh(1), the purchase of the suit schedule property by the respondent is on the basis of Ext.1 and its settlement in favour of the appellants is of no avail in view of the position of law that the Record of Right does not create or extinguish title. It is also submitted by Mr. Singh(1) that law is well settled with regard to the probative value of the settlement records and documents, like rent receipts which by themselves do not constitute evidence of actual possession. While contending so, Mr. Singh(1) relied on the following decisions, such as, Nagar Palika, Jind Vrs. Jagat Singh AIR 1995 SC 1377; Upendra Das and another Vrs. Krushna Sahu and others AIR 1972 Orissa 12; Balwant Singh and another Vrs. Daulat Singh (Dead) by LRs and others AIR 1997 SC 2719 and Patta Mahapatrani and others Vrs. S.A No.19 of 2002 Page 4 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra State of Orissa and another 1972 (2) CWR 670 by highlighting upon the law that a title cannot be claimed merely on the basis of entries in revenue records. In so far as the decision in M.J. James (supra) is concerned, Mr. Singh(1), learned counsel for the respondent submits that the said authority is inapplicable for the fact that the respondent never acquiesced any such possession of the suit plot by the appellants, rather, the contention is that the respondent has been in possession of the suit land purchased vide Ext.1 but the settlement record was wrongly prepared in favour of the appellants. Admittedly, the appellants as well as the respondent purchased the lands under Ext.1 and Ext.A respectively from a common vendor. As per Ext.A, the purchase by the respondent is in respect of land measuring Ac.1.00 in respect of plot No.257/560 situates on the southern side. The description of the land sold under Ext.A with adjoining location of plots stands described therein. In fact, in Ext.1, it is mentioned that the land of the appellants situate south of the vendors’. If Ext.A is perused, it would show that the suit land was sold in favour of the respondent, if the situation of adjoining owners as described therein is taken judicial notice of, in juxtaposition to Ext.1. In Ext.A, it has been described that the sale in favour of the appellants and its location situate on the south of the land retained by their vendor. Since, both Ext.1 and Ext.A have been executed on 28th April, 1978, having regard to the descriptions of the lands mention therein, the Court finds that the suit plot was transferred in favour of the respondent, whereas, the adjoining land situate over plot No.881 was alienated by the same vendor to the appellants vide Ext.A. It is not disputed by the respondent that plot No.881 was recorded with him and the suit land over plot No.880 settled with the appellants but claimed it to be by mistake. Mr. Singh(1), learned counsel for the respondent submits that even such settlement of plot No.881 with the respondent, he S.A No.19 of 2002 Page 5 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra having purchased plot No.880, the title in respect thereof cannot be taken away merely on account of the revenue record. In Nagar Palika, Jind (supra), it has been held by the Apex Court that solely on the basis of entries in revenue records, a title cannot be confirmed. Law specifies that the Record of Right neither creates nor extinguishes title. In the case of Balwant Singh (supra), the Supreme Court held that the entries in any such revenue record does not convey or destroy title. Similarly, in Upendra Das (supra), this Court held that the rent receipts by themselves do not constitute evidence of actual possession, nevertheless, they are not irrelevant and can add weight, however, slender to other evidence of possession. Such legal possession is also outlined in Patta Mahapatrani (supra). The ratio of the authorities referred to above is that settlement records neither confer nor extinguish title. In so far as the present case is concerned, no doubt the revenue record stands in favour of the appellants for and in respect of the suit plot. It is also admitted that the appellants produced rent receipts in respect of plot No. 880. However, such payment of rent in respect of plot No.880 is on account of the Record of Right prepared in favour of the appellants which in absence of any other evidence disproves the actual possession. Referring to the evidence on record, the Court is rather made to believe that such recording of plot No.880 was a mistake or by inadvertence. In other words, the respondent having purchased the suit plot vide Ext.1 cannot be saddled with title in respect of plot No.881 which he never purchased. Such purchase of plot No.881 as is apparent from Ext.A comparing it with Ext.1 was by the appellants with whom plot No.880 was settled mistakenly. So, therefore, having regard to the settled legal position that revenue records do not convey or extinguish any title, notwithstanding the record of right which stands in favour of the appellants in respect of plot No.880 and the fact that for the said plot rent was paid S.A No.19 of 2002 Page 6 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra and received, it does not take away the title vis-à-vis the said plot from the respondent and therefore, the Lower Appellate Court cannot be said to have gone wrong in having confirmed the title in the latter’s favour. 7. In so far as the contention of Mr. Mishra, learned counsel for the petitioner is concerned which is with respect to the rule of acquiescence and the absence of any challenge by the respondent in respect of the Record of Right prepared in favour of the appellants in regard to plot No.880, it has been claimed by Mr. Singh(1) that the decision in M.J. James (supra) is not applicable as there has been no acquiescence at all. The Apex Court in the aforesaid decision held and observed that doctrine of acquiescence is an equitable rule which applies when a party having a right stands by and looks at another dealing in a manner inconsistent with that right while the act in progress and after violation is completed, which conduct reflects his assent or accord and afterwards, he cannot register a complaint and in a literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party would be justified in inferring such an intention. It is also held therein that acquiescence can be either direct with full knowledge and express approbation or indirect where a person having right to set aside the action stands by without challenging it and in spite of the infringement takes no action mirroring acceptance. As to the present case, though the Record of Right was prepared and some years thereafter, respondent challenged when title over plot No.880 was disputed by the appellants, it cannot be said that he was in a manner aloof and had acquiesced the violation. It is a case where despite purchase of suit land, it was wrongly recorded S.A No.19 of 2002 Page 7 of 8 Haribandhu Sahoo (Dead) By LRs & Others Vrs. Bharat Mohapatra with the appellants and after having learnt about it, when the title was challenged, the cause of action led to the institution of the suit. It has been pleaded that on 18th October, 1992, the appellants entered inside the suit land and threatened the title of respondent which is apparently based on the Record of Right prepared. So, therefore, at any time before the date of cause of action, it would not be justified to draw any such inference or conclusion that the respondent admitted the possession of plot No.880 by the appellants. So to say, the rule of acquiescence which is sought to be invoked and applied to the case at hand referring to the decision in M.J. James (supra) is inappropriate, inasmuch as, the said authority does not apply to the facts peculiar to the case to hold that the respondent lost the title over plot No.880. Rather the Court finds that the appellants have advanced the claim over the suit land on the strength of the Record of Right and as discussed herein before that the revenue record does not create or convey any title, so therefore, the challenge to the title of the respondent over plot No.880 cannot be justified. In other words, the error which was committed by the trial court was duly corrected in appeal. This Court, therefore, does not find any legal infirmity in the impugned judgment and hence, the same is confirmed. Resultantly, the substantial questions of law stand answered. 8. Accordingly, it is ordered.
Decision
9. In the result the appeal is hereby dismissed. Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC,Cuttack Date: 03-Aug-2023 13:06:50 Kabita/Roji S.A No.19 of 2002 Page 8 of 8 (R.K. Pattanaik) Judge