The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.90 of 1993 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Giridharilal Agrawal (dead) …. Appellants & Others -versus- Mana Mohan Sahu (dead) …. Respondents & Others For Appellants - Mr.Budhiram.Das,Advocate On behalf of Mr.N.C.Pati,Advocate For Respondents - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :30.08.2024:: Date of Judgment :06.09.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellant in this Second Appeal was the plaintiff before the Trial Court in the suit vide T.S. No.03 of 1988 and appellant before the 1st Appellate Court in the first appeal vide T.A. No.38 of 1990. The respondent in this 2nd Appeal was the defendant before the Trial Court in the suit vide T.S. No.03 of 1988 and respondent SA No.90 of 1993 Page 1 of 14 // 2 // before the 1st Appellate Court in the 1st appeal vide T.A. No.38 of 1990. 3. The suit of the plaintiff (appellant in this 2nd appeal) against the defendant (respondent in this 2nd appeal) vide T.S. No.03 of 1988 was a suit for declaration of title and recovery of possession. 4. The suit land is Ac.0.22 decimals i.e. Plot No.3835, under Khata No.62 in village Sarapali under Naktideul Police Station in the district of Samabalpur.
Legal Reasoning
According to the plaintiff, he is the owner of the suit plot No.3835, because he has purchased the same from one Hari Makka of village Sarapali for a consideration of Rs.200/- through an unregistered sale deed dated 27.06.1969 and accordingly, since the date of purchase, he (plaintiff) was in physical possession over the same and he was paying the rent of the same to the Government. Thereafter, He (plaintiff) constructed a thatched house on the suit properties and opened a grocery shop thereon. In the year 1980, he (plaintiff) shifted his shop to village Uppermunda for extension of his business and permitted the defendant to run a tea stall on the said suit house and properties. When, in the month of December 1987, he (plaintiff) asked the defendant to leave his suit house and SA No.90 of 1993 Page 2 of 14 // 3 // properties in order to start an another business on the same, the defendant turned deafer to his request. For which, without getting any way, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.03 of 1988 against the defendant praying for declaration of his right, title and interest over the suit properties and to recover the possession of the same from the defendant. 5. Having been noticed from the Trial Court in the suit vide T.S. No.03 of 1988 filed by the plaintiff, the defendant contested the same by filing his written statement taking his stands therein that, he (defendant) has been possessing the suit properties since in the year 1972 continuously. In which, the plaintiff has no right, title and interest and possession. For which, the suit of the plaintiff is to be dismissed against him (defendant) with costs. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether five numbers of issues were framed by the Trial Court in the suit vide T.S. No.03 of 1988 and the said issues are:- I s s u e s (i) (ii) (iii) Is the suit maintainable? Has the plaintiff any right, title and interest over the suit land? Has defendant acquired title by way of adverse possession? SA No.90 of 1993 Page 3 of 14 // 4 // (iv) Is there any cause of action for the suit land? (v) What other relief the plaintiff is entitled to? 7. In order to substantiate the aforesaid reliefs, sought for by the plaintiff in the suit against the defendant, he (plaintiff) examined two witnesses from his side including him as P.W.1 and relied upon the document vide Ext.1. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant examined two witnesses on his behalf including him as D.W.1 without relying any document. 8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered issue Nos.2, 4 and 5 against the plaintiff and answered issue No.3 against the defendant and basing upon the findings and observations made by the Trial Court in issue Nos.2, 4 and 5 against the plaintiff, the Trial Court dismissed the suit of the plaintiff vide T.S. No.03 of 1988 as per its judgment and decree dated 14.09.1990 and 08.10.1990 respectively on contest against the defendant without cost assigning the reasons that, though the plaintiff claimed his title over the suit properties on the basis of purchase of the same from one Hari Makka through an unregistered sale deed dated 27.06.1969 for a consideration Page 4 of 14 SA No.90 of 1993 // 5 // amount of Rs.200/-, but, as the plaintiff did not file and prove the said so-called unregistered sale deed dated 27.06.1969 without any explanation about the cause and reason of withholding of such unregistered sale deed dated 27.06.1969 from its production and as the said so-called unregistered sale deed dated 27.06.1969 for a consideration of Rs.200/- was compulsorily registrable under law, but, the same has not been registered, then, the basis of claim of title of the plaintiff over the suit properties through unregistered sale deed dated 27.06.1969 has become inadmissible under law, for which, the plaintiff is not entitled for the decree of declaration of his title of the suit properties as well as recovery of possession thereof against the defendant, even though, the defendant has failed to establish his title over the suit properties. 9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.03 of 1988 passed by the Trial Court, he (plaintiff) challenged the same by preferring the 1st Appeal vide T.A. No.38 of 1990 being the appellant against the defendant arraying the defendant as respondent. SA No.90 of 1993 Page 5 of 14 // 6 // 10. After hearing from both the sides, the 1st Appellate Court dismissed that first Appeal vide T.A. No.38 of 1990 of the plaintiff as per its judgment and decree dated 28.11.1992 and 14.12.1992 respectively concurring/accepting the findings and observations made by the Trial Court in the suit vide T.S. No.03 of 1988 for the dismissal of the suit of the plaintiff. 11. On being aggrieved with the aforesaid judgment and decree dated 28.11.1992 and 14.12.1992 respectively passed by the 1st Appellate Court in T.A. No.38 of 1990, he (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendant arraying him (defendant) as respondent. 12. When, during the pendency of the 2nd appeal, the appellant (plaintiff) expired, then in his place, his LRs. have been substituted as appellants. Likewise, when, during the pendency of the 2nd appeal, the respondent (defendant) expired, then, in his place, his LRs. have been substituted as respondents. 13. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e.:- (i) When, the defendant miserably failed to prove the time of his possession over the suit Page 6 of 14 SA No.90 of 1993 // 7 // property, then, whether the learned Courts below should have held that the plaintiff has got possessory title over the suit property and whether the Courts below should have passed the decree of eviction against the defendant? 14. I have already heard from the learned counsel for the appellants only, as none appeared from the side of the respondents to participate in the hearing of this 2nd appeal. 15. The suit of the plaintiff vide T.S. No.03 of 1988 was a suit for declaration of his right, title and interest over the suit properties and also for recover the possession of the suit properties from the defendant. 16. The plaintiff has claimed his title over the suit properties through an unregistered sale deed dated 27.06.1969 for a consideration amount of Rs.200/- as well as on the basis of the R.o.R. vide Ext.1 prepared in his name, to which, the defendant has seriously disputed by taking his stands that, “the plaintiff has no right, title, interest and possession over the suit properties, but, he (defendant) has/had been possessing the suit properties since 1972 continuously. The plaintiff has not possessed the suit properties at any point of time”. SA No.90 of 1993 Page 7 of 14 // 8 // 17. It is the settled propositions of law that, the plaintiff is to prove his/her case through his/her own strength, but the failure of the defendant to prove his/her case cannot establish plaintiff’s case automatically. So, burden of proof lies upon the plaintiff to prove his/her case, but, merely because, the defendant fails to establish his plea/case, the same will not entitle the plaintiff to get his/her suit decreed in his/her favour, unless he/she (plaintiff) establish his/her claims over the suit properties through legally admissible evidence. The Civil Court cannot grant the decree of declaration of title in favour of a plaintiff on the basis of the revenue records only. It is the duty of the plaintiff to prove the document of title to get the decree of declaration of title, because the R.o.R. is not a document of title. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- i. 2024 (3) Civ.C.C. 77 Karnataka: Baburao Basanna Kore & Another Vrs. Shivalingappa—Specific Relief Act, 1963— Section 34—Suit for declaration of ownership in SA No.90 of 1993 Page 8 of 14 // 9 // possession—Civil Court cannot not grant declaration on the basis of Revenue Records—It is the duty of the plaintiff to produce the document of title. (Para 11) ii. AIR 1954 (S.C.) 526: Moran Mar Basselios Catholicos & Another Vrs. Most Rev. Mar Poulose Athanasius & Others—The plaintiff in ejectment suit must succeed on the strength of his own title. (Para 33, 35) iii. 1998 (3) Civ.C.C. 417 (Karnataka): Basalingappa Channappa & Others Vrs. Dundappa Puttappa Panchappanavar— Specific Relief Act, 1963—Section 34—Where, the party claiming relief of declaration has no register sale deed evidencing his title to suit property, the said party is not entitle to the relief merely on the basis of entry in record of rights. iv. 1997 (I) Civ.C.C. 574 (Madras): Arulmigu Viswesaraswami Vrs. R.V.E. Venkatachala Gounder & Another—Specific Relief Act, 1963—Section 34—In order to get a decree for declaration, the plaintiff has to succeed or fail on the title that, he establishes and if he cannot succeed on the strength of his title, his suit must fail, notwithstanding that, the defendant has no title to the suit property. In other words, the party who lays claim must establish it affirmatively by proper legal evidence. (Para 18) 18. Here, in this suit/appeal at hand, as the plaintiff has claimed his title on the basis of an unregistered sale deed dated 27.06.1969, SA No.90 of 1993 Page 9 of 14 // 10 // for which, it was the duty and obligation of the plaintiff to file and prove the said unregistered sale deed dated 27.06.1969, through which, he (plaintiff) has based his claim/title over the suit properties, but, it is very curious enough that, the plaintiff has not filed or proved the said unregistered sale deed, on which, he has based/claimed his title over the suit properties. There is also no explanation at all on behalf of the plaintiff about the cause and reason of withholding of the said disputed unregistered sale deed from its production, although, he (plaintiff) has based his title over the suit properties through the said unregistered sale deed. The above conduct of the plaintiff i.e. withholding of disputed unregistered sale deed dated 27.06.1969 from its production in the Court, which is obviously with him without any explanation for its non-production, creates an adverse inference against the plaintiff concerning his claim of title over the suit properties. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- SA No.90 of 1993 Page 10 of 14 // 11 // i. AIR 1964 (S.C.) 136 : A. Raghavamma & Another Vrs. A.Chenchamma & Another—Indian Evidence Act, 1872, Section 114—All relevant documents admitted to have been in existence not placed before Court by party concerned—Adverse inference has to be drawn against party. (Para 20) ii. 2012 (4) C.C.C. 198 (Rajasthan) : M/s. Kanahiya Lal Ghamandi Lal Vrs. Subhash—Indian Evidence Act, 1872—Section 114—If a relevant evidence is withheld by plaintiff, Section 114 of Evidence Act enables the Court to draw a presumption to the effect that, if produced, the said, evidence would be unfavourable to the plaintiff. iii. AIR 1966 (S.C.) 629: Atyam Veerraju & Others Vrs. Pechetti Venkanna & Others— Evidence Act, 1872—Section 114—If the party deliberately withhold a document, the Court should make every presumption against him to his disadvantage consistent with the facts. (Para 10) 19. It is the own case of the plaintiff that, he has purchased the suit properties through an unregistered sale deed dated 27.06.1969 for a consideration amount of Rs.200/-. It is the settled propositions of law that, when, the value of the immovable property sold through a deed is more than Rs.100/-, the said deed is to be compulsorily registrable and without registration, title of the sold property through that deed shall never pass from the vendor to the vendee of that deed. Page 11 of 14 SA No.90 of 1993 // 12 // On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) 2018 (II) CLR 763: Mohan Kurumi Vrs. Lalsai Kurumi & Others—Indian Registration Act, 1908— Section 17— Above Rs.100/- and more of the property, registration is compulsory. (ii) 2018 (I) OLR (NOC) 590: Dr. Purna Chandra Majumdar (since dead) through LRs. vrs. State of Orissa & Others—Indian Registration Act, 1908— Section 17—When the value of the suit property is more than 100/- the sale deed is to be compulsory registered— Without registration not title has been passed to the successive vendees. 20. Here, in this suit/appeal at hand, when, it is the own case of the plaintiff that, he had purchased the suit properties through an unregistered sale deed dated 27.06.1969 for a consideration amount of Rs.200/-, then, in view of the ratio of the aforesaid decisions, the said sale deed was compulsorily registrable. So, due lack of registration of the same, no title of the properties has been passed to him (plaintiff). Therefore, in view of the ratio of the aforesaid decisions, no title of the suit properties has accrued in favour of the plaintiff through the said so-called disputed unregistered sale deed dated 27.06.1969. For which, the plaintiff has not been able to establish his title over the suit properties. SA No.90 of 1993 Page 12 of 14 // 13 // As per the discussions and observations made above, when, there is no legally admissible title deed in favour of the plaintiff to establish his title over the suit properties, then at this juncture, the plaintiff is not entitled for the decree of declaration of his title over the suit properties only on the basis of the revenue record i.e. R.o.R. vide Ext.1. When, the plaintiff has not become able to establish his title and possession over the suit properties prior to the possession of the defendant on the same, then at this juncture, the plaintiff is not entitled to get the decree of recovery of possession of the suit properties against the defendant. Therefore, the concurrent findings of the Trial Court and 1st Appellate court regarding the dismissal of the suit vide T.S. No.03 of 1988 of the plaintiff cannot be held as erroneous. For which, the question of interfering with the judgments and decrees passed by the Trial Court and 1st Appellate Court through this 2nd Appeal filed by the appellant/plaintiff does not arise. Therefore, there is no merit in the appeal of the appellant/plaintiff. The same must fail. SA No.90 of 1993 Page 13 of 14 // 14 // 21. In result, the appeal filed by the appellant (plaintiff) is dismissed on merit, but without cost. The judgments and decrees passed by the Trial Court and 1st Appellate Court in T.S. No.03 of 1988 and T.A. No.38 of 1990 respectively are confirmed. Judge (A.C. Behera), Orissa High Court, Cuttack 6th Of September, 2024/ Binayak Sahoo// Junior Stenographer Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 14:49:19 SA No.90 of 1993 Page 14 of 14