Civil Suit No. 23 of 2005 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.57 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 21.01.2023 & 03.02.2023 learned 5th Additional District Judge, respectively passed by the Bhubaneswar in R.F.A. No.29 of 2019 confirming the judgment dated 31.01.2019 passed by the learned Civil Judge, Bhubaneswar in Civil Suit No.23 of 2005. ---- Shyam Sundar Mohanty …. Appellant -versus- Kameni Dalei …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondent -
Legal Reasoning
Mr.D.P.Mohanty, (Advocate) Mr. B.Bhuyan, (Advocate) CORAM: MR. JUSTICE D.DASH DATE OF HEARING :23.02.2023 :: DATE OF JUDGMENT:10.03.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and R.S.A. No.57 of 2023 Page 1 of 8 {{ 2 }} decree dated 21.01.2023 & 03.02.2023 respectively passed by the learned 5th Additional District Judge, Bhubaneswar in R.F.A. No.29 of 2019. By the same, the Appeal filed by the present Appellant being the aggrieved Defendant in Civil Suit No.23 of 2005 by the Court of learned Civil Judge, Bhubaneswar under section 96 of the Code has been dismissed and thereby, the judgment and decree passed by the Trial Court in decreeing the suit filed by the present Respondent as the Plaintiff have been confirmed and the Appellant (Defendant) has been directed to deliver the vacant possession of the suit land to the Respondent (Plaintiff) and he has also been permanently injuncted from coming over the suit land and creating any disturbances in the peaceful possession of the Respondent (Plaintiff) over the suit land. 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. 2. Plaintiff’s case is that the suit land originally belonged to Deity Grama Debati Thakurani Marfat, Baman Barik and others. On the death of Baman, his daughter Hemalata came to possess the suit land. Hemalata subsequently sold the same land to the Plaintiff by registered sale deed dated 02.05.1987. Pursuant to the same, she also delivered possession of the suit land to the Plaintiff who began to possess the same by planting varieties of fruit bearing trees. In the year 1999, many such trees were uprooted in the super-cyclone. It is stated that suddenly on 01.01.2005, the Defendant with his men measured the suit land and dug the foundation for putting up construction over the suit land. He also gathered construction materials. This was resisted by the Plaintiff by the husband and son. Defendant then claimed to have R.S.A. No.57 of 2023 Page 2 of 8 {{ 3 }} purchased the suit land. He however subsequently left the possession of the suit land because of the intervention of the local gentleman. The Plaintiff in view of such illegal action of the Defendant which came to cast cloud on his title in respect of the suit land, filed a suit. During pendency of the suit, taking advantage of the absence of the Plaintiff, the Defendant on 09.09.2013 forcibly entered into the possession of the suit land and constructed two temporary pucca rooms with teen roofs. The Plaintiff on 15.09.2013, on return could see the illegal construction being put up by the Defendant on the land. So during the suit, he introduced the prayer for recovery for possession of the suit land from the Defendant. 3. The Defendant in his written statement while traversing the plaint averments has stated that the suit property along with the land under Plot No.152 in chaka No.21 appertaining to Khata No.99 belongs to Grama Devati Thakurani of mouza Janmejayapur under Balianta Police Station and Baman Barik and others were the marfatdars. It was stated that the Baman Barik was in exclusive possession of the land in Plot No.30 measuring Ac0.04 decimals whereas the rest Ac0.11 decimals was in possession of Budhi Barik, Dwija Barik, Sindhu Barik, Braja Barik and Raju Barik. Baman died in the year 1973 leaving behind his wife Haramani Barik and daughter Hemalata and son Laxmidhar. Haramani expired in the year 1975. Laxmidhar was the adopted son of Baman and Haramani vide registered adoption deed dated 01.03.1966. So it is said that by such adoption, Laxmidhar acquired his title over the suit land left by Baman and Haramani. It is stated that Hemalata was never in possession of the suit land and did not have any right to alienate the suit property in favour of the Plaintiff. Since there was no partition between the Hemalata and Laxmidhara, the said sale deed dated 02.05.1987 is not binding on Laxmidhara. Laxmidhara being in Page 3 of 8 R.S.A. No.57 of 2023 {{ 4 }} exclusive possession of the suit property after the death of Baman and Haramani was paying rent for the suit property. Said Laxmidhara had entered into agreement for sale of the suit land with the Defendant on 09.05.2003. An agreement in writing, to that effect being made and executed, it was notarized. A sum of Rs.10,000/- as advance consideration from out of the total agreed consideration of Rs.15,000/- was paid to that Laxmidhar. It was agreed between the parties that the rest of the consideration amount would be paid to Laxmidhara within six months whereafter the sale deed would be executed by Laxmidhara. It is stated that Laxmidhara delivered possession of the suit land to the Defendant and he is in possession of the same since that date. The son of Hemalata instituted a criminal proceeding under section 144 Cr.P.C. against Laxmidhara and Defendant in respect of an area of Ac0.04 decimals from out of Plot No.30. The proceeding was dropped. Basanti Barik and another filed a Civil Suit bearing No.347 of 2003 and therein the parties have been directed to maintain status quo over the suit property. It is further stated that in the criminal proceeding, the police had reported that Laxmidhara was in possession of the suit land by virtue of transfer of the same in his favour and he has the house over it. The Defendant is claiming to be having the right and title over the suit land and as such in possession of the same since the date of his purchase. It is believed that the Plaintiff has no right, title and interest over the suit land. 4. The Trial Court on the above rival pleedings has framed six issues. Coming to answer issue no.IV and V which relate to the factum of possession of the suit land as claimed by the Plaintiff and also so claimed by the defendant, in competing with the Plaintiff and the entitlement of the Plaintiff to reliefs that he has prayed for; the Trial Court upon examination Page 4 of 8 R.S.A. No.57 of 2023 {{ 5 }} of evidence and their evaluation has answered those issues in favour of the Plaintiff. Answer to these above issues have practically led the Trial Court to decree the suit directing the Defendant to deliver the vacant possession of the suit land to the Plaintiff and injuncting him permanently from coming over the suit and and creating disturbance. 5. The Defendant being aggrieved by the above judgment and decree passed by the Trial Court in favour of the Plaintiff having carried the First Appeal has been unsuccessful. Hence the present Second Appeal. 6. Learned counsel for the Appellant submitted that the Courts below having concluded that the registered sale deed (Ext.3) standing in favour of the Plaintiff as invalid and has conferred no right, title and interest over the suit land in favour of the Plaintiff are not right in granting the decree of recovery of possession when the true owners are not parties to the suit. He further submitted that the Courts below having come to a conclusive finding that the defendant is in possession of the suit land have erred in granting the relief of injunction to the Plaintiff as prayed, merely holding the Defendant to be having no title when the Plaintiff has also failed to prove his title and possession as such. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 7. Learned counsel for the Respondent assisting the Court in the admission hearing submitted all in favour of the judgment and decree passed by the Courts below. According to him, the Courts below having concurrently found that the Plaintiff was in possession over the suit land on the date of institution of the suit and he had subsequently been dis- possessed during pendency of the suit by the Defendant, since the Defendant has utterly failed prove his claim over the property as to have come to Page 5 of 8 R.S.A. No.57 of 2023 {{ 6 }} possess the same, have rightly passed the decree for recovery of possession and injunction against the Defendant. He, further submitted that the courts below while finding the factum of possession of the suit land in favour of the Plaintiff have thoroughly examined the evidence and upon an indepth analysis since have arrived at such conclusion, that finding is not liable to be interfered with in the Second Appeal as no perversity is either being pointed out therein nor any such perversity so surfaces. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. The suit was instituted only for with the prayer for injunction. During pendency of the suit stating that the Defendant has dispossessed the Plaintiff from the suit land, prayer has also been made for recovery of possession. 9. The Plaintiff narrating as to how he came to possess the suit land has stated that the land originally stood recorded in the name of the Deity under its Marfatdars namely, Baman and others and that on the death of Baman, his daughter Hemalata having sold the property to the Plaintiff by a registered sale deed followed by delivery of possession, he is in possession which is under serious threat and in fact, taken away by the Defendant by force, subsequently. 10. The Defendant claims that Laxmidhara is the adopted son of Baman and he having executed an agreement for sale of the suit land in favour of the Defendant on 09.05.2003, the Defendant has come to possess the suit land, being so delivered with the possession of the same pursuant to the said agreement for sale. Thus here in the case when the Defendant is not denying the status of the Plaintiff’s vendor namely, Hemalata as the daughter of Baman, one of the marfatdars of deity in whose the name, the property Page 6 of 8 R.S.A. No.57 of 2023 {{ 7 }} stands recorded, the Plaintiff is seen attacking the status of Laxmidhara as claimed by the Defendant to be the adopted son of Baman and in consequence of that, it is stated that said Laxmidhara had no right over the property at all so as to enter into an agreement for sale of the suit land with the Defendant and deliver possession of the same to him. 11. The agreement for sale is not a registered one. When the Defendant’s claim that pursuant to the said agreement, he was delivered with the possession of the same by the proposed vendor; said agreement is not registered as is compulsorily registerable in view of the provision contained in Section 17(1)(f) of the Registration Act, 1908 (Odisha Amendment). Therefore, no amount of evidence as to the possession of the defendant would suffice the purpose of establishing his claim of being in possession of the suit land pursuant to that agreement. The provision as above being clear that only when the agreement for sale is completed with the delivery of possession, the registration is compulsory, the evidence of possession being delivered pursuant to an agreement for sale if not registered is wholly inadmissible when the right of possession of the land is conferred upon the proposed vendee under the agreement, it being not registered that factum of delivery of possession of the land under the agreement and pursuant to it and the right to continue as such to possess until evicted following one process of law is not admissible and is not visible when looked through the legal spectrum. 12. The Plaintiff when has been concurrently held to be in possession of the suit land in saying that the evidence on that score is satisfactory and the Plaintiff has proved that fact by preponderance of probability; this Court is unable to find out any perversity therein so as to interfere with the same. In that view of the matter, even though the sale deed Ext.3 standing in favour of Page 7 of 8 R.S.A. No.57 of 2023 {{ 8 }} the Plaintiff is said for a moment to be invalid and has conferred no title in respect of the suit land upon the Plaintiff yet by virtue of his possession of the suit land on the date of institution of the suit and dispossession during pendency of the suit at behest of the Defendant, the Courts below are right in granting the relief of recovery of possession of the suit to the Plaintiff and thereby permanently injuncting the Defendant from interfering with the peaceful possession of the suit land by the Plaintiff, the Courts below cannot be said to have committed any such error. The submission of the learned Counsel for the Appellant (Defendant) that there surfaces the substantial questions of law as pointed out thus stands repelled. 13.
Decision
In the result, the Appeal stands dismissed. There shall be however no order as to cost. (D. Dash), Judge. Gitanjali R.S.A. No.57 of 2023 Page 8 of 8