The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.147 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 29.02.2016 passed by the learned Additional District Judge, Kendrapara in R.F.A. No.18 of 2013, setting aside the judgment and decree dated 16.03.2013 & 26.03.2013 respectively passed by the learned Civil Judge, Junior Division, Kendrapara in T.S. No.123 of 1995. ---- Haguri Nandi & Another …. Appellants Santi Kunda & Others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants- M/s. Goutam Mishra, D. K. Patra, A.S. Behera, J. Biswal Advocates For Respondents - -------
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing : 04.03.2024 :: Date of Judgment: 11.03.2024 D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the R.S.A. No.147 of 2016 Page 1 of 8 {{ 2 }} judgment dated 29.02.2016 passed by the learned Additional District Judge, Kendrapara in R.F.A. No.18 of 2013. One Maheswar Pradhan, the predecessor in interest of the Respondents had filed the suit for declaration of his right, title, interest over the suit land and confirmation of possession in the alternative if found to have been dispossessed for recovery of possession and permanent injunction. The predecessor in interest of these Appellants No.1 & 2 and the predecessor in interest of Respondent No.9 as well as the Respondent No.10 & 11 had been arraigned therein as the Defendants. The suit stood dismissed. So the Respondent No.1 to 8, who had then been substituted in the Trial Court as the Plaintiffs, carried the First Appeal under section 96 of the Code, which has been allowed. The First Appellate Court setting aside the judgment and decree passed by the Trial Court has declared the right, title, interest of the Respondent No.1 to 8 (Plaintiffs) and Respondent No.11 (Defendant No.4) over the suit land and accordingly, their possession has been confirmed and these Appellants (Defendant No.1 & 2) and others have been permanently injuncted. 2. 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. R.S.A. No.147 of 2016 Page 2 of 8 {{ 3 }} 3. The Plaintiff’s case is that in the settlement Record of the year 1930, the suit sabik plots bearing no.400 measuring Ac.0.04 decimal and 401 measuring Ac0.05 decimal, thus in total Ac0.09 decimals were recorded in the name of Uchhab Pradhan and Dukhei Pradhan. After the death of Dukhei, his widow Fula sold northern portion of Ac0.02 decimal from each of the two plots to Kamadev Pradhan by registered sale deed. Kamadev as the Karta of the family was jointly living with his brothers namely, Damodor and Maheswar. In the year 1963, the joint properties were partitioned amongst three brothers by registered deed of partition dated 08.05.1963. The allotted shares were partitioned by metes and bounds and the parties were in separate possession. Out of the land under sabik plot no.400 and 401, Kamadev branch was allotted with Ac.0.01 decimal 1 ½ links of land from sabik plot no.400 and Damodar got five links out of plot no.401 whereas Maheswar branch got Ac0.01.05 links out of sabik plot no.401 and Ac0.08.05 links out of sabik plot no.400. The allotted share of Plaintiff branch was recorded in Hal Plot No.1016 measuring Ac.0.01 decimal and Hal Plot No. 1019 measuring Ac.0.01 decimal instead of Ac.0.01 decimal 5 links. It is further stated that the suit land measuring 330 square links which is 30 links x 11 links is confined to the western part of Hal Plot No.1020 which is actually the part and parcel of adjoining Hal Plot No.1019 of the Plaintiffs branch. It has been wrongly recorded in the Page 3 of 8 R.S.A. No.147 of 2016 {{ 4 }} name of Damodar branch in Hal Settlement Record of Right of the year 1986. Despite such wrong recording, the parties were in possession as per the registered partition deed of the year 1963. When the matter stood thus on 01.04.1995, the original Defendant, Damodar threatened the Plaintiff Maheswar to dispossessed him from the suit land by force which compelled Maheswar to file the suit. 4. The Defendant in their written statement while traversing the plaint averments have taken the specific stand that after the death of Kamadev in the year 1963, his widow and Defendant No.2 compelled to take assistance of the Plaintiff Maheswar in family affairs. She was an illiterate lady and taking advantage of her illiteracy, the original Plaintiff impressed upon her to execute a Power of Attorney in his favour to look after the property. Accordingly, Maheswar took her to Sub-Registrar’s Officer at Kendrapara and obtained the registered deed. It is only on receiving the summon in the suit, she came to know that said deed had been fraudulently obtained being nomenclatured as the deed of partition and it is stated that the said has never been acted upon. The title of the Plaintiff branch over the suit schedule land is denied. 5. On the above rival pleadings, the Trial Court has framed as many as six issues. Practically, the answer to the issue no.4, which has been dealt with issue no.2 has led to the dismissal of the suit. The R.S.A. No.147 of 2016 Page 4 of 8 {{ 5 }} Trial Court upon examination of the evidence and their evaluation held that the suit in the form as laid and for the reliefs claimed is not maintainable. It has also been held that the Plaintiff has failed to prove her right, title, interest over the suit land and the suit has also held to be barred by limitation. 6. The Plaintiffs being non-suited, they have succeeded in the First Appeal. The First Appellate Court having gone for detail analysis of the evidence on the backdrop of the rival pleadings independently at its level has come to the conclusion that the Plaintiffs have the right, title, interest and possession over the suit land and as such entitled to the reliefs claimed. 7. Heard Mr. Goutam Misra, learned Senior Counsel for the Appellants at length in the matter of admission. He submitted that the Trial Court when upon detail discussion of evidence and their proper appreciation had held the Plaintiff to have failed to establish his case/claim over the suit property so as to be entitled to the reliefs claimed in the suit, whereas the First Appellate Court is not right in upsetting the said conclusion of the Trial Court. It was stated that the said view taken by the First Appellate Court is the outcome of perverse appreciation of the evidence on record. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. R.S.A. No.147 of 2016 Page 5 of 8 {{ 6 }} 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 9. The Plaintiffs when base their claim upon the registered deed of partition dated 08.05.1963, that is disputed by the Defendants. In such state of affair, the burden of proof lies upon the Defendants to establish that the said partition deed had been fraudulently obtained from the original Defendant No.2, which too has not also been acted upon. The First Appellate Court appears to have churned the evidence let in by the Defendants as well as the evidence let in by the Plaintiffs. The evidence of D.W.2, who is the son of Kamadev Pradhan is very much important where he has stated to have purchased the land measuring Ac.0.03 decimals corresponding to plot no.1025 from Damodar Pradhan and that land was the ancestral property allotted to his share in that partition. He has also stated about the existence of a partition deed wherein his mother, Damodar Pradhan and Maheswar Pradhan were parties and that deed was registered on 08.05.1963. The partition was thus to the knowledge of the D.W.2. D.W.1 who is the daughter of Damodar Pradhan has also stated that the land under Hal Plot No.1020 corresponding to sabik Plot no.401 meausring Ac0.05 links was allotted to the share of her father in the said partition. It is stated by D.W.1 that Maheswar was allotted Ac.0.1.5 links in the partition and his successors was in possession till date. It is also stated by her that her father Damodar R.S.A. No.147 of 2016 Page 6 of 8 {{ 7 }} sold Ac.0.03 decimals of land from his allotted share out of Plot No.1025 to Gouranga by registered sale deed dated 18.02.2002 which was the ancestral property of Damodar. The dispute is between the branches of Maheswar and Damodar. D.W.1, the daughter of Damodar has admitted the earlier partition in the family coupled with the allotment made in favour of her father and Maheswar. The possession of Maheswar branch over the allotted share till date is not denied. With above evidence on record, the First Appellate Court is right in concluding that the evidence of the Plaintiff is in conformity with the pleadings and the same receive corroboration from the documentary well as oral evidence. The Amin, P.W.3 has found the possession of the Plaintiffs over the disputed land. The contesting Defendant i.e. Defendant No.1 admits the possession of the Plaintiff over the disputed land. According to the Defendant No.1, her father was allotted when only 5 links whereas it is found that the Hal Record of Right in respect of Hal Plot No.1020 has been recorded with Ac.0.01 decimal. This wrong recording made in the Hal RoR as well as the map extending the allotted share, cannot create title in favour of members of the Damodar branch. 10. In that view of the matter, the conclusion arrived at by the First Appellate Court that the successors of Maheswar i.e. Plaintiffs and Defendant No.4 are having the right, title, interest over the disputed land, is well in order. The Plaintiffs having proved that they are in R.S.A. No.147 of 2016 Page 7 of 8 {{ 8 }} possession of the disputed land since the earlier partition which the Defendants having challenged have failed to negate in proving otherwise, in discharging the burden of proof lying upon them, the suit has rightly been decreed. In view of the aforesaid, this Court is not in a position to accept the submission of the learned Senior Counsel for the Appellant that the Appeal merits admission to answer the substantial question of law is pointed out by him. 11.
Decision
In the result the Appeal stands dismissed. No order as to cost. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 19-Mar-2024 11:26:38 R.S.A. No.147 of 2016 Page 8 of 8