The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.268 of 2012 An application under Section 100 of the Civil Procedure Code. Bajarangi Pati …. Appellant -versus- Shankara Narayan Panigrahi …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. B. Baug, Advocate along with Mr. D.K. Sahoo, Advocate For Respondent - Mr. B. Moharana, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :30.11.2023 :: Date of Judgment :16.01.2024 1. This 2nd Appeal has been preferred against the confirming Judgment. 2. The respondent of this 2nd Appeal was the sole plaintiff in the suit vide C.S. No.47 of 2009 and he was the respondent in the 1st Appeal vide R.F.A. No.7 of 2011. R.S.A No.268 of 2012 Page 1 of 17 {{ 2 }} The appellant of this 2nd Appeal was the defendant in the suit vide C.S. No.47 of 2009 and he was the appellant in the 1st Appeal vide R.F.A No.7 of 2011.
Legal Reasoning
The suit of the plaintiff vide C.S. No.47 of 2009 was a suit for recovery of possession against the defendant. 3. The suit property described in the schedule of the plaint is situated in Mouza Kulada vide Plot No.2882/3364 Ac.0.019 decimals out of Ac.0.023 decimals under Khata No.270. According to the plaintiff, the suit land was the self-acquired properties of his father Padmanav Panigrahi. His father Padmanav Panigrahi, purchased the properties covered under suit plot No.2882/3364 including the suit properties from its original owner i.e. late Mahadev Panigrahi on dated 23.05.1960 through R.S.D. No.2649/1960. Since the date of purchase i.e. since 23.05.1960, the father of the plaintiff i.e. Padmanav Panigrahi was possessing the suit properties as the owner thereof. Accordingly, in the last settlement, the suit plot No.2882/3364 was recorded in the name of the father of the plaintiff i.e. in the name of Padmanav Panigrahi and he (Padmanav Panigrahi) had been paying rent of the suit plot No.2882/3364 to the Government. R.S.A No.268 of 2012 Page 2 of 17 {{ 3 }} After the death of Padmanav Panigrahi, the suit properties devolved upon the plaintiff and his brothers. As such, the plaintiff along with his brothers being the successors and as well as the sons of Padmanav Panigrahi, they are paying revenue to the Government in respect of the suit plot including the suit properties. Surprisingly, on 12.10.2000, the defendant forcibly and unlawfully entered into the suit properties (which is a part/portion of suit plot No.2882/3364) and constructed a thatched house on the South-East-West portion of the same. Subsequent thereto, the defendant filed a mutation case before the Tahasildar, Bhanjanagar vide Mutation Case No.933 of 2000 on the basis of a sale deed bearing RSD No.2867 of 2000 for the mutation of the suit properties into his name, to which, the Tahasildar, Bhanjanagar rejected, vide its order dated 24.02.2001. Against the said order of rejection to the Mutation Case No.933 of 2000 of the defendant, he (defendant) preferred an appeal before the Sub-Collector, Bhanjanagar vide Mutation Appeal No.1 of 2003. But, that Mutation Appeal of the defendant was dropped on 16.01.2003. After the disposal of the said Mutation Appeal, there was an approach from the side of the plaintiff to the defendant to handover the possession of the suit properties to the plaintiff, to which, the defendant was initially agreed but, subsequent thereto, he (defendant) refused the same and misbehaved the plaintiff on 03.09.2009. So, without getting any way, the R.S.A No.268 of 2012 Page 3 of 17 {{ 4 }} plaintiff approached the Civil Court by filing the suit vide C.S. No.47 of 2009 against the defendant praying for recovery of possession of the suit properties from the defendant. 4. Having been noticed from the court, the defendant contested the suit of the plaintiff by filing his written statement after taking his stands inter alia therein that: the suit of the plaintiff is barred by limitation and the same is under-valued and the court lacks jurisdiction to entertain that suit. He (defendant) also denied all the allegations alleged by the plaintiff against him in the plaint. The specific stands/pleas of the defendant in his written statement was that, he has purchased one thatched house measuring 10’.6" width towards North to South and length 90’ East to West i.e. an area of Ac.0.019 decimals, but as per measurement the same is Ac.0.023 decimals under Khata No.270 plot No.2882/3364 from Trinath Panigrahi and Sibaram Panigrahi both are the sons of Late Mahadev Panigrahi (who was the vendor of the father of the plaintiff) vide R.S.D. No.2867 dated 02.08.2000 for Rs.24,500/-. After purchasing the said house, he (defendant) had taken possession of the same and thereafter, he (defendant) had constructed a residential house over his purchased land. Subsequent thereto, the son of the defendant started a STD Booth after completion of the construction of the house on the same. He (defendant) is paying land revenue for the same to the Government till yet. The R.S.A No.268 of 2012 Page 4 of 17 {{ 5 }} plaintiff was/is not in possession of any portion of the suit plot No.2882/3364 under Khata No.270 at any point of time, for which, the plaintiff has no right, title and interest in the suit properties vide plot No.2882/3364. He (defendant) is lawfully and legally in possession over the suit properties. For which, the suit of the plaintiff is liable to be dismissed against him (defendant). 5. On the basis of the aforesaid pleadings and matters in controversies between the parties, altogether 9 Nos. issues were framed by the trial court in C.S. No.47 of 2009 and the said issues are: Issues (1) Whether the suit is maintainable? (2) Whether there is proper cause of action to file the present suit? (3) Whether the suit is barred by limitation? (4) Whether the plaintiff is the rightful owner having right, title and interest over the suit schedule land having inherited the same from his father who was the rightful owner of the suit schedule land? (5) Whether the father of the plaintiff i.e. late Padmanav Panigrahi has lawfully purchased the suit schedule land from late Mahadeb Panigrahi vide R.S.D. No.2262 dated 23.05.1960 on execution of a valid sale deed? (6) Whether the defendant purchased the suit land from original owner vide R.S.D. No.2867 dated 02.08.2000 by way of valid sale? (7) Whether the plaintiff or defendant is in possession of the suit schedule land? (8) Whether the plaintiff is entitled to a decree for recovery of possession of occupied portion of the schedule land from the defendant through process of court? (9) To what other relief plaintiff is entitled to. R.S.A No.268 of 2012 Page 5 of 17 {{ 6 }} 6. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendant in C.S. No.47 of 2009, he (plaintiff) examined two witnesses from his side including him as P.W.1 and relied upon 4 documents on his behalf including the sale deed vide Ext.1. But, on the contrary, the defendant examined 4 witnesses from his side including him (defendant) as D.W.1 and relied upon several documents from his side vide Ext.A to C/2. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available on the record, the trial court answered issue Nos.1 to 8 in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the trial court in issue Nos.1 to 8 in favour of the plaintiff and against the defendant, the trial court decreed the suit of the plaintiff vide C.S. No.47 of 2009 on contest against the defendant and directed the defendant to handover the peaceful vacant possession of the occupied portion of the suit schedule land as per plaint schedule to the plaintiff as Karta of his family on behalf of others at his own cost within 6 months vide its Judgment and decree dated 25.03.2011 and 31.03.2011 respectively assigning the reasons that, the area of the suit plot No.2882/3364 is Ac.0.023 decimals and the father of the plaintiff i.e. Padmanava Panigrahi had purchased the suit plot No.2882/3364 from the owner thereof i.e. from Mahadev Panigrahi through R.S.D. dated 23.05.1960 vide Ext.1 and since then, the father of R.S.A No.268 of 2012 Page 6 of 17 {{ 7 }} the plaintiff i.e. Padmanav Panigrahi was in possession of the same as the owner thereof and his purchased properties including the suit properties were recorded exclusively in the name of the father of the plaintiff i.e. Padmanav Panigrahi and after selling of the suit plot No.2882/3364 by Mahadev Panigrahi in favour of the father of the plaintiff, the said Mahadev Panigrahi had lost his all right, title, interest and possession over suit plot No.2882/3364 including over the suit properties. So, the two sons of Mahadev Panigrahi i.e. Trinath Panigrahi and Sibaram Panigrahi had no title/interest in suit plot No.2882/3364 to transfer/alienate the same on dated 02.08.2000 through Ext.A in favour of the defendant. But, when the defendant has forcibly taken the possession of the suit properties (which is a part of suit plot No.2882/3364) from the plaintiff forcibly on dated 12.10.2000, for which, the defendant is liable to deliver the vacant possession of the same in favour of the plaintiff. 8. On being dissatisfied with the aforesaid Judgment and decree dated 25.03.2011 and 31.03.2011 respectively passed in favour of the plaintiff in C.S. No.47 of 2009 and against the defendant, he (defendant) preferred the 1st Appeal vide R.F.A. No.7 of 2011 being the appellant against the plaintiff by arraying him (plaintiff) as respondent. After hearing from both the sides, the 1st Appellate Court confirmed the Judgment and Decree passed in C.S. No.47 of 2009 in favour of the plaintiff by the trial court, accepting the findings and R.S.A No.268 of 2012 Page 7 of 17 {{ 8 }} observations made by the trial court in favour of the plaintiff and against the defendant and accordingly, the 1st Appellate Court dismissed the 1st Appeal of the defendant vide R.F.A. No.7 of 2011 on contest against the plaintiff/respondent vide its Judgment and decree dated 25.04.2012 and 02.05.2012 respectively. 9. On being aggrieved with the aforesaid confirming Judgment and decree passed by the 1st Appellate Court in R.F.A No.7 of 2011 in dismissing the said R.F.A. No.7 of 2011 of the defendant against the plaintiff, he (defendant) has challenged the same by preferring this 2nd Appeal being the appellant against the plaintiff by arraying him (plaintiff) as respondent. 10. This 2nd Appeal was admitted on formulation of the substantial questions of law, i.e. Substantial Questions of Law (i) Whether the suit is barred under Order-7, Rule-3 of the C.P.C. for non-identification and/or for giving imaginary portion of land in the plaint for recovery of possession and whether this aspect of the matter has not been taken into consideration by both the courts below which is completely a perversity which is apparent on the face of the impugned Judgments? (ii) Whether a simple suit for possession is maintainable, when there is serious dispute in the title with regard to the suit land between the parties? 11.
Legal Reasoning
I have already heard from the learned counsels of both the sides. R.S.A No.268 of 2012 Page 8 of 17 {{ 9 }} 12. In order to justify the substantial questions of law in favour of the appellant (defendant) and to assail the Judgments and decrees of the trial court as well as the 1st Appellate Court passed in C.S. No.47 of 2009 and in R.F.A. No.7 of 2011 respectively, the learned counsel for the appellant(defendant) relied upon the following decisions: (2021) 10 Supreme Court Cases 777: K. Karuppuraj Vs. M. (2022) 9 Scale 297 Somakka (dead) represented by LRs Vs. 2013 AIR SCW 2810: M/s. United Engineers and a) Contractors Vs. Secretary to Government, A.P. & Others (Para Nos.3,9 and 10). b) Ganesan (Para Nos.7,8 and 10). c) K.P. Basavaraj (dead) represented by LRs (Para Nos.26 & 30). d) (2007) 6 Supreme Court Cases 737: Ramachandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (dead) & Others (Para No.13) e) (2012) 8 Supreme Court Cases 584: State of Andhra Pradesh & Others Vrs. D. Raghukul Pershad (dead) & Others (Para No.8) f) Housing Board Vs. Anirudh Kumar Sahu & Others g) Charan Pattanaik. (2018) 18 Supreme Court Cases 330: Jharkhand State 2006 (II) OLR 80: Bandhu Das and Another Vs. Uttam 13. On the contrary, in support of the Judgments and decrees of the trial court and the 1st Appellate Court passed in C.S. No.47 of 2009 and R.F.A. No.7 of 2011 respectively in favour of the respondent (plaintiff) the learned counsel for the respondent (plaintiff) relied upon the following decision: AIR 1990 Orissa 64: Ranikanidhi Sahu Vs. Nandakishore Sahu (Page-6 I) Para-14) 14. So far as the 1st substantial question of law i.e. Whether the suit is barred under Order-7, Rule-3 of C.P.C. for non-identification and/or for R.S.A No.268 of 2012 Page 9 of 17 {{ 10 }} giving imaginary portion of land in the plaint for recovery of possession by the plaintiff is concerned; On perusal of the Schedule land given by the plaintiff in his plaint, it appears that, the schedule land is Ac.0.019 decimals out of Ac.0.023 decimals of plot No.2882/3364 under Khata No.270. In the prayer of the plaintiff, he (plaintiff) has prayed for passing a decree for recovery of possession of the occupied portion of the schedule land (i.e. the above land) through process of court from the defendant. Ext.2 is the certified copy of the R.o.R of the suit Khata No.270, from which, it appears that, the area of the suit plot No.2882/3364 is Ac.0.023 decimals. It also appears from the Ext.1 i.e. R.S.D. No.2642 dated 23.05.1960 that, the father of the plaintiff i.e. Padmanav Panigrahi has purchased the total area of suit plot No.2882/3364. Out of total area of suit plot No.2882/3364 i.e. out of Ac.0.023 decimals, the suit land is Ac.0.019 decimals, to which, the plaintiff has stated that, the said area out of his purchased land i.e. out of Ac.0.023 decimals has been forcibly occupied by the defendant since 12.10.2000. In Para No.11 of the written statement of the defendant, he (defendant) has specifically pleaded that, he (defendant) is in lawfully and legally possessing the schedule land of the suit. R.S.A No.268 of 2012 Page 10 of 17 {{ 11 }} According to the aforesaid pleadings of the plaintiff and defendant, they (both the parties) are claiming title and possession over the suit schedule properties. As both the parties are fighting in the suit having clear idea with regard to the suit properties, claiming their title and possession over the same suit properties, in this situation, there is no scope for the defendant to raise a plea challenging the identification of the suit properties. Because, he (defendant) is claiming his title and possession over the suit properties as per his pleadings without disputing the identity of the suit properties. That apart, the defendant has not taken any stand as per the provisions of Order 7 Rule 3 of the CPC in his written statement for dismissal of the suit of the plaintiff on the ground of improper identification of the suit properties. 15. On this aspect, the propositions of law has already been clarified by the Honourable Courts in the ratio of the following decision: I) 2015 (II) CLR 737—Rebati Khuntia & Others Vs/ Debi Prasad Rath—Suit for possession—Suit land is a strip of land of 12" X 30" ft and same is western side of the building—Defendants have also lodged a counter claim in respect of suit land—Hence, Hon’ble Court held that the parties having fought out the case having clear idea with regard to suit property, there remains no scope for defendants to raise the identification of suit land any more. So, the suit of the plaintiff cannot be dismissed under Order 7 Rule 3 of the CPC. Because, the aforesaid ground raised on behalf of the R.S.A No.268 of 2012 Page 11 of 17 {{ 12 }} defendant about the improper identification of the suit properties has become inacceptable for the reasons assigned above. So far as the second substantial question of law i.e. Whether a simple suit for possession is maintainable when there is serious dispute in the title with regard to the suit land between the parties is concerned; The parties of both the sides are claiming their title and possession over the suit properties covered under plot No.2882/3364 as the purchasers of the same. 16. As such, the plaintiff is claiming title and possession over the suit properties through R.S.D. No.2642 dated 23.05.1960 vide Ext.1 as purchaser from Mahadev Panigrahi, but at the same time, the defendant is claiming his title and possession over the suit properties through R.S.D. No.2567 vide Ext.A. dated 02.08.2000 as a purchaser from the two sons of Mahadev Panigrahi i.e. from Trinath Panigrahi and Sibaram Panigrahi. 17. As per the above pleadings of the parties, the defendant is the subsequent purchaser of the suit plot No.2882/3364, but the father of the plaintiff i.e. Sibaram Panigrahi is the first purchaser of the suit properties vide Plot No.2882/3364 through R.S.D. No.2642 dated 23.05.1960 vide Ext.1. As per Section 48 of the T.P. Act, 1882, Priority of Rights created by transfer, that means, when there are two sale deeds by the same vendor for the same property, in that case, as per Section48 of the T.P. Act, 1882, R.S.A No.268 of 2012 Page 12 of 17 {{ 13 }} there is supremacy of the former sale deed in all terms than the latter sale deed. On that aspect, propositions of law has been clarified in the ratio of the following decisions: I. II. III. 2012(1) CCC 181 (Del.) & 2012(4) CCC 540 (Del.)— United Bank of India Vs. Farhana Khan and Ors. T.P Act, 1882—Section 48— Prior purchaser will have preponderance over subsequent purchaser. 2010 (2) O.J.R. (303), 110 (2010) CLT 153, 2010 (II) OLR-685 Board of Secondary Education, Orissa, Cuttack Vs. Joint Commissioner, Consolidation and Settlement & Ors. & 2010 (II) CLR SC-244— Atla Sidda Reddy Vs. Busi Subba Reddy & Ors. T.P. Act, 1882— Earlier transferee shall have priority of rights over the subsequent transferee. 2013 (1) OLR 584— Sri Alekh Rajhans Vs. Joint Commissioner, Consolidation and 3 others. TRANSFER OF PROPERTY ACT, 1882 - Sec. 54 – When the vendor has no subsisting right to convey in favour of subsequent purchase after executing and registering the sale deed earlier – In that case second sale deed is inconsequential. IV. 2005 (II) OLR 330 & 2005 (II) CLR 460— Pragnya Rout Vs. Hemaprava Ray and others. T.P. Act, 1882— Section 54 and 48—When the vendor may not have title to convey and in such a case, the title deed conveys no title and can be ignored as not worth the paper written on. V. 2014 (I) OJR 792—Rama Chandra Sahu & Others Vs. Gopinath Panigrahi. T.P. Act, 1882— Section 54 & 48—The second sale deed for the same land is void from its inception. 18. When after selling the suit properties vide plot No.2882/3364 in favour of the father of the plaintiff by its undisputed owner Mahadev Panigrahi through R.S.D. No.2642 dated 23.05.1960, vide Ext.1, there was no title with him (Mahadev Panigrahi) in the suit properties, then the R.S.A No.268 of 2012 Page 13 of 17 {{ 14 }} two sons of Mahadev Panigrahi i.e. Trinath Panigrahi and Sibaram Panigrahi had no interest in the suit plot No.2882/3364 to convey in favour of the defendant through its subsequent sale deed vide R.S.D. No.2567 dated 02.08.2000 vide Ext.A. For which, in view of the principles of law enunciated in the ratio of the above decisions, the subsequent sale deed bearing No.2567 dated 02.08.2000 vide Ext.A on the basis of which the defendant is claiming his title over the suit properties has become inconsequential. Now, the question arises, here in this suit at hand, when both the parties are claiming title over the suit properties and when the plaintiff is claiming title over the suit properties through the first sale deed bearing No.2642 dated 23.05.1960 vide Ext.1 and when the defendant is claiming title over the suit properties through subsequent/second sale deed bearing No.2567 dated 02.08.2000 vide Ext.A, then under these situations, it will be seen, whether the suit for recovery of possession of the suit properties filed by the plaintiff vide C.S. No.47 of 2009 against the defendant without praying for declaration of title is maintainable under law? On this aspect the propositions of law has already been clarified by the Hon’ble Courts and the Apex Court in the ratio of the following decisions: I. 2011 (3) CCC 591 (P&H)—Smt. Santosh Rani & Another Vs. Bharat Raj & Others. Suit for possession—The Hon’ble Courts have held by relying upon the decision of the apex court reported in 2008 (4) CCC (SC) 594—Anathula Page 14 of 17 R.S.A No.268 of 2012 {{ 15 }} II. Sudhakar Vs. P. Buchi Reddy that, where title of plaintiffs to the property in dispute is not under cloud, but they are out of possession, the plaintiffs are required to file a suit for possession only and not a suit for declaration and possession. 2016 (2) CCC 176 (SC), 2016 (2) CLT (SC) 207, & 2016 (1) CLR (SC) 1225—Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana. (Para No.12) Suit for possession without declaration of title whether maintainable, when both parties claiming title over the suit properties—Held, when there is no serious cloud on the title of the plaintiff, then, he (plaintiff) could succeed in the suit for possession on the strength of his title. High Court erred in asking him to seek the relief for declaration of title. 19. When, it has been held above that, the defendant is claiming title over the suit properties on the basis of the subsequent/second sale deed bearing No.2567 dated 02.08.2000 vide Ext.A as a purchaser from the two sons of the vendor of the father of the plaintiff and when the subsequent sale deed vide Ext. A relied upon by the defendant is inconsequential as per law, through which, there was no creation of title in favour of the defendant over the suit properties, because the vendors thereof had no subsisting right on the same to convey in favour of the defendant due to earlier alienation of the same to the father of the plaintiff by the father of the vendors of the defendant, then at this juncture, it can be held that, there is no serious cloud on the title of the plaintiff as per the above claim of title raised by the defendant on the basis of the subsequent/second sale deed vide Ext.A. As such, when the title of the plaintiff over the suit properties is not under cloud, but when the plaintiff has been kept out of possession of the suit properties by the defendant forcibly, then, at this juncture, in view of the principles of law enunciated R.S.A No.268 of 2012 Page 15 of 17 {{ 16 }} by the Hon’ble Courts and Apex Court in the ratio of the above decisions, the suit of the plaintiff for recovery of possession of the suit properties from the defendant without declaration of title cannot be held as not maintainable under law. 20. The trial court and as well as 1st Appellate Court has given their findings and observations in the Judgments and the Decrees of the suit vide C.S. No.47 of 2009 and in the 1st Appeal vide R.F.A. No.7 of 2011 respectively clarifying that, the defendant being the subsequent purchaser of the suit properties has no title on the same, but he (defendant) has taken possession of the suit properties forcibly, from the plaintiff, for which, both the courts have directed the defendant to handover the peaceful vacant possession of the suit properties (which has been occupied by the defendant) as per the plaint schedule to the plaintiff as Karta of the Family on behalf of his other co-sharers. So, the above findings and observations made by the trial court and 1st Appellate Court in C.S. No.47 of 2009 and R.F.A No.7 of 2011 cannot be held as illegal or improper in any manner. Therefore, the decisions relied upon by the learned counsel for the appellant/defendant indicated in Para No.12 of the Judgment are held as inapplicable to the suit at hand on facts as discussed above. On analysis of the facts and circumstances of the suit as well as law concerning the substantial questions of law formulated in this appeal, R.S.A No.268 of 2012 Page 16 of 17 {{ 17 }} when it is held that, the Judgments and Decrees passed by the trial court in C.S. No.47 of 2009 as well as by the 1st Appellate Court in R.F.A. No.7 of 2011 are not interferable in any manner through this 2nd Appeal filed by the appellant (defendant), then, at this juncture, it is held that, the appeal of the appellant (defendant) has no merit. The same must fail. 21. In the result, the appeal filed by the appellant is dismissed on contest, but without cost. 22. The Judgments and Decrees passed by the trial court in C.S. No.47 of 2009 and by the 1st Appellate Court in R.F.A. No.7 of 2011 are confirmed. (A.C. Behera), Judge. Orissa High Court, Cuttack. 16th January, 2024//Rati Ranjan Nayak// Senior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 19-Jan-2024 15:15:06 R.S.A No.268 of 2012 Page 17 of 17