The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.6 of 2010 the judgment and decree dated 9.9.2009 and (From 6.10.2009 passed by learned Addl. District Judge, F.T.C., Dhenkanal in R.F.A. No.5/2005/26/2007 partly reversing the judgment dtd.16.3.2009 and decree dated 23.3.2009 in C.S. No.22/2006) Premalata Bhutia and others … Appellants -versus- Ranjan Kumar Rout (Dead) Renubala Rout and others … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr.R.K.Mohanty, Sr.Advocate -versus- For Respondents : Mr. D.P.Mohanty, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 21.2.2025. Sashikanta Mishra,J. The legal heirs of Defendant No.1 before the trial Court are the appellants herein against a R.S.A. No.6 of 2010 Page 1 of 21 confirming judgment. The judgment passed by the learned Addl. District Judge, F.T.C., Dhenkanal on 09.9.2009 followed by decree in R.F.A. No.5/2005/26/2007 is under challenge whereby, the judgment passed by the learned Addl. Civil Judge (Sr. Division), Dhenkanal on 17.1.2005 followed by decree in T.S. No.22/1999 was confirmed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The suit was filed by the plaintiffs for declaration of title, confirmation of possession, alternatively for recovery of possession as well as correction of R.O.R. and permanent injunction against the defendants. 4. The plaintiffs’ case, briefly stated, is that one Bhobani Champati Singh @ Mahakud is the common ancestor of the Plaintiff, who died leaving behind six sons. The
Facts
Plaintiffs and proforma Defendant Nos.3 to 21 are his successors. Balabhadra being the eldest son of Bhobani (grandfather of Plaintiff Nos.1 to 4), was the Karta of the family. The original defendant No.1 Anam Bhutia was the R.S.A. No. 6 of 2010 Page 2 of 21 son of one Damodar Santara. He having died during pendency of the suit was substituted by Defendant Nos.1(a) and 1(b). Defendant No.2 is the son of Anam Bhutia. Damodar’s father Ratan Bhutia and Balabhadra’s father Bhobani Champati Singh @ Mahakud had some property recorded jointly in their names in Sabik Khata Nos.6, 10 and 12 of Revision Settlement of the year 1923-24. Damodar having died was succeeded by his son Anam Bhutia (Defendant No.1). The members of the joint family of Balabhadra mutually partitioned the land recorded in the aforementioned Sabik Khatas between themselves and Anam Bhutia. Two separate mutation sheets and village maps were prepared showing their separate lands. Anam continued to possess his half share of the land under the aforesaid Khatas while Balabhadra along with his 5 brothers jointly possessed the remaining half share. In Mutation Case No.305/579/106/16 of the year 1940-41, separate mutation sheets were prepared. Subsequently, in the year 1951-52, there was a partition among Balabhadra and his 5 brothers in respect of their share of land whereby each of the co-shares was allotted R.S.A. No. 6 of 2010 Page 3 of 21 with one share vide Mutation Case No.262/2/255/1551/ 339 of 1951-52 and mutation sheet was prepared. The co- sharers and successors thereafter dealt with their respective shares of the suit property independently. During Hal settlement operation, plaintiffs came to know that some plots, in all measuring Ac.1.32 decs, belonging to the plaintiffs and proforma Defendant Nos.3 to 21, had been wrongly recorded in the name of Anam (Defendant No.1) in Hal Khata No.6. Similarly, the lands described in Schedule ‘B’ of the plaint, in all measuring Ac.0.85 decs., was wrongly recorded in the name of Defendant No.1, and land measuring 0.37 decs. had been recorded in the name of Amarendra Bhutia, Defendant No.2 and son of Defendant No.1. This wrong recording was challenged in Rent Case No.1368/1984/226/153 before the Settlement Officer, but the same was dismissed against which Settlement Appeal No.116/1984 was filed. Said appeal being dismissed, the plaintiffs filed Revision being No.1702/1985. During pendency of the Revision, final R.O.R. was published for which the plaintiffs filed another revision under Section 15 of the Odisha Survey and R.S.A. No. 6 of 2010 Page 4 of 21 Settlement Act being Revision Case No.706/1992. Though detailed inquiry reports were submitted by Settlement Officer, Dhenkanal, the Revisional Authority ignored the same and dismissed the revision by order dtd.28.8.1998 rejecting thereby the prayer of the plaintiffs for correction of R.O.Rs. Hence, the suit. 5. The legal heirs of Defendants 1 and 2 contested the suit by filing a joint written statement. The genealogy and relationship between the parties was admitted. The partition by metes and bounds between Balabhadra and Anam was also admitted. It was however, stated that partition was affected mutually according to possession but the mutation sheets prepared as per the sketch map was not according to possession of the parties. At that stage some defects had kept into the record, but the parties continued to be in possession of their respective shares irrespective of the wrong recording of some plots. It was also pleaded that in the Hal Settlement operation, land to the extent of Ac.18.54 decs. falling to the share of Balabhadra branch had been properly recorded. The half R.S.A. No. 6 of 2010 Page 5 of 21 share of late Anam measuring Ac.16.15 decs. was also recorded properly after repeated inquiry during settlement. Regarding allegation of wrong recording of some land of Balabhadra from the mutation sheet in the name of Anam, it was pleaded that mutation sheet was prepared as per sketch map but not according to physical possession of the parties. After thorough inquiry and as per consent given by Gokulananda Mahakud, Plaintiff No.5, who was looking after the settlement operation on behalf of the Balabhadra branch, Hal R.O.R. was prepared according to the possession of the respective parties on their consent. Therefore, the plaintiffs are estopped from challenging the correctness of the Hal R.O.R. The preparation of R.O.R., according to the Defendants 1 and 2, was correct and so also the findings of the Revisional Court. Besides, the suit is barred by limitation under Article 65 of the Limitation Act and also under Section 42 of the OSS Act. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination; R.S.A. No. 6 of 2010 Page 6 of 21 (1)Whether the suit in present form is maintainable ? (2)Whether there is any cause of action for the plaintiffs to institute this suit ? (3)Whether suit is barred under law of limitation hit under Section 42 of Orissa Survey and Settlement Act ? (4)To what other relief or reliefs the parties are entitled to ? (5) Whether the Plaintiff No.5 is estopped to challenge the correctness of current R.O.R. ? 7. Issue Nos.3 and 5 being important were taken up for consideration together at the outset. Looking at the dispute between the parties and the contentions raised, the trial Court first tried to determine whether there was any previous partition and whether the Hal record of right was correctly prepared. After referring to the oral and documentary evidence in detail, the trial Court held that there was previous partition but the recording of Hal R.O.R. is wrong. With regard to the plea of estoppel raised by Defendant Nos.1 and 2, the trial Court did not place much emphasis on the sole entry in Ext.5 showing the consent given by Plaintiff No.5 for recording of land as per R.S.A. No. 6 of 2010 Page 7 of 21 their possession in spite of partition of land on the ground that the said statement was not made on oath nor signed under such recording and was challenged from the very beginning. It was therefore, held that plaintiff No.5 is not estopped to challenge the recording of the Hal R.O.R. It was also held that the suit was not barred by law of limitation having been filed after dismissal of the revision nor under Section 42 of the OSS Act. On a thorough examination of the judgments passed in the settlement proceedings upto the stage of revision, the trial Court held that the map of the suit lands had not been prepared as per possession and the said lands belonging to Plaintiff No.5 were wrongly recorded in the name of Defendant Nos.1 and 2. On such findings, the suit was decreed by declaring right, title, interest of plaintiffs and proforma Defendant Nos.3 to 21 over ‘A’ schedule land, of Defendant Nos.22 to 24, (a), (b) and (c) over ‘B’ Schedule land, their possession over the respective lands was confirmed and the contesting defendants were permanently injuncted from alienating the suit land or interfering with it. R.S.A. No. 6 of 2010 Page 8 of 21 8. Being aggrieved, the contesting defendants carried the matter in appeal. The First Appellate Court took up the question of limitation and held that the cause of action in the instant case could be said to have accrued on the date of dismissal of the revision petition filed by the plaintiffs on 26.9.1998. The suit was filed on 22.2.1999 and therefore, within time. The First Appellate Court also held that the suit was not barred under Section 42 of the OSS Act. The First Appellate Court thereafter took up the main ground urged by the defendant-appellants that Defendant No.5 had admitted and given consent for preparation of the Hal R.O.R. acting on behalf of the other co-sharers. Therefore, they are estopped from challenging the same. In this respect, the First Appellate Court went through the Yaddast, Exts.A, B, C, H and J, prepared during the Settlement and found that the Plaintiff No.5 had filed Objection Case No.1368/1984. The order dtd.5.6.1984 passed by Settlement Officer in the objection case was referred to by the First Appellate Court wherein it was observed that the Yaddast was prepared on mutual consent. However, the First Appellate Court noted that R.S.A. No. 6 of 2010 Page 9 of 21 barring this observation of the Settlement Officer, no other document had been filed to show that the Plaintiff No.5 had consented for correction of the record in deviation of the mutation sheet prepared in 1940-41 and that such consent was on behalf of all the co-sharers. It was also observed that the Plaintiff No.5 had submitted objection before the Settlement Officer that in the year 1971, the consent given by him was not proper and that the lands were recorded in his name. Thus, it was found that the so- called consent given by the plaintiff No.5 had subsequently been withdrawn by him. Moreover, it was not a proper admission. The other ground raised was that the plaintiffs had lost before all the revenue Courts and failed to discharge the burden cast upon them as to how the R.O.R. was wrong in view of the statutory presumption of correctness attached to it. The First Appellate Court however, went through the judgment passed in Settlement Appeal and found that during settlement operation, the field staff had observed that A and B Schedule lands were part of the mutation sheets prepared in the name of Balabhadra, but R.O.R. was wrongly prepared in the R.S.A. No. 6 of 2010 Page 10 of 21 names of Defendant Nos.1 and 2. The litigations before the revenue Courts were disposed of on technical grounds such as non-joinder of parties. Thus, the First Appellate Court accepted the contentions of the plaintiffs that the Hal R.O.R. was wrongly prepared thereby accepting the findings of the trial Court. Basically on the above findings, the First Appeal was dismissed. 9. Being further aggrieved, the L.Rs. of Defendant No.1 have filed this Second Appeal, which has been admitted on the following substantial questions of law; (1) Whether the learned courts below have acted contrary to law in holding that previously there was a completed partition of the suit property and the disputed property fell to the share of the plaintiff no.5 in spite of the fact that P.W.5 through admitted that there was a document in which the partition was effected, but the said document was not produced and the learned courts below should have drawn an adverse inference under Section 114(g) of the Evidence Act ? (2) Whether the plaintiffs’ suit is barred by law of limitation as prescribed under Section 58 of the Indian Limitation Act?
Legal Reasoning
14. It is well settled that consent or admission by a party has to be clear, unambiguous and unequivocal in nature so as to bind him and his co-sharers. When admittedly, R.S.A. No. 6 of 2010 Page 16 of 21 two allotment sheets had been prepared during partition of the properties. There is no reason to make a departure therefrom as the allotment sheet by itself signifies the intention of the parties to be allotted with specific portions of land. Therefore, unless compelling reasons are put forth, the lands ought to be recorded as per the allotment sheets. As already held, the so-called consent given by Gokulananda Mahakud is inconclusive. The trial Court has disbelieved the same by referring to the entry made in the Yaddast (Ext.B) as such consent was not made on oath nor contained signature of the consentor and in any case, the consentor had challenged the same before final publication. 15. In view of the above narration, there can be no manner of doubt that both the Courts committed no error whatsoever in disbelieving the plea of the contesting defendants regarding consent being given by Gokulananda Mahakud. Once this is held, it automatically proves that the Hal R.O.R., not having been prepared strictly in terms R.S.A. No. 6 of 2010 Page 17 of 21 of the allotment sheets prepared during mutual partition, has to be treated as wrong. 16. This takes the Court to the plea advanced by the contesting defendants that having lost in all revenue forums, the plaintiffs are estopped from raising the plea again before the Civil Court. This Court is not impressed with the argument for the reason that once it is held that the Hal R.O.R. was not in consonance with the terms of the partition effected way back in 1941 as reflected in the allotment sheets, the plaintiffs cannot be non-suited from asserting their title solely on the ground that they had lost in all the revenue forums. Even otherwise, as held by both the Courts below, the revenue authorities have proceeded on the erroneous premise of consent being given by one of the co-sharers purportedly acting on behalf of the other co- sharers for such recording. The contesting defendants have not been able to successfully discharge the burden of proving the contrary. R.S.A. No. 6 of 2010 Page 18 of 21 17. Now, coming to the substantial question of law No.1, this Court after carefully considering the rival contentions and on perusal of the plaint averments under Paragraph-3 as answered by the contesting defendants under Paragraph-7 of their written statement, finds that all the basic facts such as preparation of two mutation sheets during partition, mutation proceedings in 1940-41, preparation of C.S. R.O.R. in terms of such partition and subsequent mutation proceedings in 1951-52 have clearly been admitted. It is trite that facts admitted need not be proved. It is not the case of the contesting defendant that there were no allotment sheets prepared or that the allotment sheets showed different allotments than what was claimed by the plaintiffs. Their consistent plea is that recording was done as per map and not as per actual possession. This Court is therefore, not persuaded to accept the contention that non-production of allotment sheets could be a ground to draw adverse inference against the plaintiffs. R.S.A. No. 6 of 2010 Page 19 of 21 18. Coming to the other substantial question of law i.e. the ground of limitation, the First Appellate Court held that the revision was dismissed on 26.9.1998. This Court has already held that filing of cases before the revenue forum in the peculiar facts and circumstances of the case cannot be a ground to non-suit the plaintiffs. The plaintiffs attempted to get the R.O.R. corrected by approaching the appropriate forum but failed. Therefore, there is no bar in law for them to approach the civil Court to assert their title. Under such circumstances, dismissal of the revision petition can be said to be the date on which the cause of action first accrued as held by the First Appellate Court. This Court is also of the same view. The suit having been filed on 22.2.1999 is therefore, in time. 19. From a conspectus of the analysis of facts, evidence, position of law and the contentions advanced by the parties, this Court finds no reason to interfere with the findings of the Courts below. The substantial questions of law framed are answered accordingly against the defendants-appellants. R.S.A. No. 6 of 2010 Page 20 of 21 20. In the result, the appeal, being devoid of merit is dismissed, but in the circumstances, without any cost. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Feb-2025 16:16:27 R.S.A. No. 6 of 2010 Page 21 of 21
Arguments
10. Heard Mr.R.K.Mohanty, learned Senior Advocate with Ms. Sumitra Mohanty, learned counsel, for the Defendant- R.S.A. No. 6 of 2010 Page 11 of 21 Appellants and Mr. D.P.Mohanty, learned counsel for the Plaintiff-Respondents. 11. Mr. Mohanty, learned Senior counsel, would argue that Plaintiff No.5 consented to the recording of the land as per the earlier partition and not as per the allotment sheets at the Yaddast stage (Exts.A and G). Accordingly, records were corrected. The Plaintiffs challenged such recording before every available forum but lost in their attempt. Hence, they are estopped from taking the same stand. This admission ought to have been utilized against the plaintiff in view of the statutory presumption of correctness attached to R.O.R. as per Section 13 of the O.S.S. Act. Mr. Mohanty argues that both the Courts below committed gross error of law in not applying the principle of estoppel. He further argues that even otherwise, the plaintiffs having relied upon the allotment sheets failed to produce the same in support of their claim for which both the Courts below ought to have drawn adverse inference against them in terms of Section 114(g) of the Evidence Act. Mr. Mohanty also argues that one of the reliefs claimed being correction of R.O.R, the suit ought to have R.S.A. No. 6 of 2010 Page 12 of 21 been filed within three years of the date of publication of R.O.R. as per Section 42 of the OSS Act. Both the Courts below however, committed error in extending the period of limitation to the date of disposal of the cases before the revenue courts. That apart, the suit is also barred by limitation under Article 58 of the Limitation Act since the cause of action arose in 1986 when the R.O.R. was prepared, but the plaintiffs filed the suit on imaginary cause of action only because they lost in all revenue courts. 12. Mr. D.P.Mohanty, on the other hand, would argue that admittedly there was partition in the family of the predecessors of the parties wherein two separate mutation sheets (kachha farda) were prepared wherein the suit properties fell to the share of Balabhadra. A mutation case being filed, such properties were recorded separately. These properties were again subject to partition amongst the plaintiffs and their co-sharers in 1950-51. But in the Hal settlement R.O.R., the properties came to be wrongly recorded in the names of Defendant Nos.1 and 2, which R.S.A. No. 6 of 2010 Page 13 of 21 was challenged before the Revenue Courts. Since the plaintiffs lost in all forums, the dispute started and the suit was filed. With regard to the ground that adverse inference ought to have been drawn against the plaintiffs for non- production of the Kachha Farda, Mr. D.P.Mohanty would argue that from the written statement filed by the Defendant Nos.1 and 2 it would be evident that the fact of preparation of two mutation sheets, initiation of mutation proceeding in the year 1940-41, preparation of C.S. R.O.R. in accordance with mutual partition and subsequent mutation proceeding in 1951-52 as pleaded in the plaint were admitted by Defendant Nos.1 and 2. Therefore, there was no necessity of proving the same again by the plaintiffs. Mr. D.P.Mohanty further argues that the contesting defendants failed to discharge the onus of proving that the recording of land was made with reference to the map and not to the actual possession. With regard to the plea of limitation, Mr. D.P.Mohanty would argue that the suit being filed substantially for the relief of declaration of title with the relief of correction of R.O.R. being a R.S.A. No. 6 of 2010 Page 14 of 21 consequential and secondary relief, Section 42 of the OSS Act can have no application. 13. Before proceeding to specifically answer the substantial questions of law framed in this appeal, this Court taking note of the rival contentions finds that the fact that there was prior partition between Balabhadra and Anam is admitted. It is also admitted that in the said partition, lands were allotted as per two allotment sheets. The dispute arose during Hal settlement operations wherein, purportedly acting on the consent of Plaintiff No.5-Gokulananda Mahakud, some lands belonging to Balabhadra branch were wrongly recorded in the names of Defendant Nos.1 and 2. It is not disputed that such recording was done contrary to the allotment sheets. So it becomes imperative to determine as to what would be the effect of the so-called admission/consent of one of the co- sharers during settlement operations and particularly at the Yaddast stage. The First Appellate Court has taken pain to go through the orders passed by Settlement Officer in Objection Case No.1368/1984. The Settlement Officer R.S.A. No. 6 of 2010 Page 15 of 21 observed that in view of mutual consent the Yaddast was prepared, but as rightly held by the First Appellate Court barring this observation there is nothing on record to show that he had consented for correction of record contrary to the mutation sheets and that such consent, if at all, was on behalf of all the co-sharers. Significantly, it was found that the Settlement Officer had also observed that said Gokulananda Mahakud had again objected in 1971 that the earlier consent was not proper. Thus, Gokulananda Mahakud appears to have resiled from his earlier consent. In view of such prevarication on the part of Gokulananda Mahakud, it cannot be conclusively held that he had given his consent. Therefore, as rightly held by the First Appellate Court, it cannot be treated as a consent in the true sense. Despite such withdrawal of the so-called consent by Gokulananda Mahakud, the Settlement Officer dismissed the Objection Case on technical grounds.