Civil Suit No. 181 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.533 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 17th September, 2016 & 1st October, 2016 passed by the learned District Judge, Cuttack in R.F.A. No.67 of 2014 confirming the judgment & decree passed by the learned Civil Judge (Senior Division), 2nd Court, Cuttack in Civil Suit No.181 of 2009. Kartik Singh & Others Upendra Singh ---- -versus- …. …. Appellants Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.M.R.Sarangi, S.K. Pattanaik S.K.Behera (Advocates) For Respondent -
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing : 09.11.2023 : Date of Judgment: 04.12.2023 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment & preliminary decree dated 17th September, 2016 & 1st October, 2016 passed by the learned District Judge, Cuttack in R.F.A. No.67 of 2014. RSA No.533 of 2016 Page 1 of 7 {{ 2 }} 2. The Appellants, as the Plaintiffs, had filed Civil Suit No.181 of 2009 in the Court of the learned Civil Judge, Senior Division, 2nd Court, Cuttack. The suit was for partition and injunction. The Trial Court preliminarily decreed the suit with the following order:- “That the suit, be, and the same, is decreed preliminarily on contest against the defendant but in the present circumstances without any cost. The plaintiffs are entitled for plot no.3070 for an area of Ac.0.020 decimals and 50% share in plot no.291, 361, 377 & 469 and the defendant is entitled for plot no.3071 for an area of Ac.0.075 decimals and 50% share equally out of plot no.291, 360, 361, 377 & 469 equally along with the plaintiffs. Both the parties are directed to amicably partitioned the properties among themselves within a period of three months of this order failing which the either party is at liberty to effect the same through proper procedure of law.” The Appellants, being the aggrieved Plaintiffs, had carried the First Appeal under section 96 of the Code, which the First Appellate Court has dismissed and thereby has confirmed the judgment and preliminary decree passed by the Trial Court. Hence, the present second Appeal is at the instance of the Plaintiffs, who are dissatisfied with the judgment and preliminary decree passed by the Trial Court and are aggrieved thereof. RSA No.533 of 2016 Page 2 of 7 {{ 3 }} 3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 4. The Plaintiffs confine their challenge to the said preliminary decree in so far as the land under Plot No.3071 measuring an area of Ac.0.20 decimals and Plot No.3070 measuring an area of Ac.0.75 decimals are concerned. The Courts below, while passing the preliminary decree entitling the Plaintiffs to 50% over the land under Plot No.291, 360, 361, 377 & 469, have declined to hold the Plaintiffs’ entitlement to 50% over the land under Plot Nos.3071 & 3070 and instead, the Courts below have made the Plaintiffs’ entitlement to the entire land under Plot No.3071, which measures Ac.0.20 decimals and similarly, the entitlement of the Defendant to the entire land under Plot No.3070 measuring an area of Ac.0.75 decimals. 5. Mr.M.R.Sarangi, learned counsel for the Appellants (Plaintiffs) submitted that when the consolidation record of right (Ext.1) reveals that the land under all the plots have been jointly recorded, the Courts below in making the deviation in respect of the land under Plot Nos.3070 & 3071 as noted by them have committed grave error and under no circumstance, the entire land under plot no.3070 could have been allotted in favour of the Defendant and similarly the land under plot no.3071 in entirety RSA No.533 of 2016 Page 3 of 7 {{ 4 }} could not have been allotted to the Plaintiffs wherein the Plaintiffs ought to have also given their share on both the plots of, i.e., 50% with rest 50% resting with the Defendants. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 6. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties, as placed. 7. Admitted position as would reveal from the record of right of the year 1929 (Ext.P), land register (Ext.G) and Hal Record of Right (Ext.A) that Plot No.3070 corresponds to Sabik Plot No.2640 whereas Plot No.3071 corresponding, Sabik Plot No.2641. Since the year 1929, as per the published Record of Right that Plot No.2641 (Hal Plot No.3071) had been shown to be in possession of the ancestors of the Plaintiffs whereas the land under Sabik Plot No.2640 (Hal Plot No.3070) had been shown to be in possession of the father of the Defendant and his co-sharers. Thus, for a period of about 80 years prior to the institution of the suit, such separate possession of these plots have been continuing. The Plaintiff No.5, being examined as P.W.1, has admitted that consolidation plot no.3070 corresponds to Sabik Plot No.2640 and the note of possession in respect of said plot is RSA No.533 of 2016 Page 4 of 7 {{ 5 }} in favour of Bhagabat and Nityananda, the father of Defendant and his co-sharers whereas the land under consolidation plot no.3071 corresponds to Sabik Plot No.2641 contains the note of possession in favour of his grandfather. The Defendant’s challenge is to the consolidation recording of these two plots in joint khata. P.W.1 admitted that he attended the Consolidation Court for recording of the property and signed in the order sheet. From PCS Khata No.69 vide Ext.G, it is seen that consolidation plot no.3070 corresponds to L.R. Plot No.2781, which further corresponds to Sabik Plot No.2640, the remark column reflects the note of possession in favour of the Defendant. The L.R. Khata No.51 (Ext.T) reflects that L.R. Plot No.2781 corresponds to Sabik Plot No.2640 and the note of possession is in favour of the Defendant. The Defendant has stated that in Amin’s report marked as Ext.H, the Consolidation Officer passed an order to record the note of possession in favour of the Defendant in respect of L.R. Plot No.2781 and the same, being an order of the Consolidation Authority was duly signed by P.W.1 and the Defendant No.1. P.W.2 has admitted that P.W.1 was looking after the consolidation operation and both of them have filed cases for division of their ancestral land and that during Amin enquiry, P.W.1 was present. As it appears that in spite of such direction and agreement of the parties, L.R. Plot Nos.2781 & 2782, which Page 5 of 7 RSA No.533 of 2016 {{ 6 }} corresponding to consolidation plot nos.3070 & 3071 have been jointly recorded as it reveals from the final ROR (Ext.1=Ext.A). In that view of the matter, the Courts below are absolutely right in keeping out the land under Plot Nos.3070 & 3071 from out of the purview of the partition in saying that the arrangement between the parties since has been standing accepted from the year 1929 till the end of the consolidation operation, the same is to be given due weightage and thus not unsettled in favour of the Plaintiffs in so far as plot no.3070 is concerned as well as the Defendant in so far as land under plot no.3070 is concerned. The Plaintiffs, in the present case, appear to have raised the dispute by taking advantage of such erroneous joint recording of those two plots of land in the consolidation ROR being contrary to the order passed by the Consolidation Authority in the field which had been the settled position as found by the Consolidation Authority and admitted by the parties without raising any objection. The move of the Plaintiffs thus clearly appears to be with an oblique motive for the reasons best known to them but not known in law. For all those aforesaid, the submission of the learned counsel for the Appellants that the Appeal merits admission to answer the substantial questions of law, as pointed out above, cannot be countenanced with. RSA No.533 of 2016 Page 6 of 7 {{ 7 }} 8. Resultantly, the Appeal stands dismissed with cost. Sd/- (D. Dash), Judge True Copy A.R.-Cum-Sr. Secy Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 12-Dec-2023 14:43:10 RSA No.533 of 2016 Page 7 of 7