The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.20 of 2018 In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 17.10.2017 & 24.10.2017 passed by the learned Additional District Judge, Bhnjanagar, in R.F.A. No.12 of 2015 confirming the judgment and decree dated 29.09.2015 and 09.10.2015 respectively passed by the learned Civil Judge, Junior Division, Bhanjanagar in C.S. No.21 of 2013. ---- Purna Chandra Mohanty …. Appellant -versus- Prakash Chandra Panda & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.P.C. Kar Advocate For Respondents - Mr.S.K. Dash Advocate for R.1 CORAM: JUSTICE D.DASH Date of Hearing :13.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellant, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 17.10.2017 & 24.10.2017 passed by the learned Additional District Judge, Bhnjanagar, in R.F.A. No.12 of 2015 RSA No.20 of 2018 Page 1 of 8 {{ 2 }} By the same, the Appeal filed by the Respondent No.2
Legal Reasoning
(Defendant No.4) under section 96 of Code, in challenging the judgment and decree dated 29.09.2015 and 09.10.2015 respectively passed by the learned Civil Judge, Junior Division, Bhanjanagar in C.S. No.21 of 2013 has been dismissed. 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 Trial Court. 3. The Plaintiff has filed the suit for permanent injunction restraining the Defendants from entering upon the suit land. The case of the Plaintiff is that he is the owner of the suit land, which stands recorded under Khata No.254 in terms of the order passed in Mutation Case No.1490 of 2010. It was appertaining to Mutation Khata No.643/106 assigned with Plot No.2097 and its extent is Ac.0.598 decimals. The Plaintiff claims to be the owner in possession of the suit land and as such, paying the rent to the State. It is alleged that on 04.01.2013 around 5.00 p.m., the Defendant No.5 forcibly attempted to enter upon the suit and with a view to grab the same. He then stated that his father Balakrishna Mohanty had purchased the suit land and after his death, he is entitled to possess the same being his legal heir. The dispute thus having arisen, it was amicably settled in a village meeting and Defendant No.4 then on 05.01.2013 executed a deed of relinquishment on receipt of a consideration of Rs.65,000/- (Rupees Sixty-Five Thousand) and stated that he would no more claim the possession of the suit land. It was also admitted therein by the Defendant No.4 that the name of his father had wrongly been recorded in the remark RSA No.20 of 2018 Page 2 of 8 {{ 3 }} column of Hal Record of Right as to be in possession of the said land. He further admitted therein that neither his father Balakrishna nor his legal heir had ever possessed the suit land and the Plaintiff is the absolute owner of the suit land having his right, title and interest over it. He also assured on behalf of his brothers that none would create any disturbance in the possession of the suit land by the Plaintiff. Be that as it may, on 25.03.2013, the other brothers of the Defendant No.4, i.e., Defendants 1 to 3 again tried to enter upon the suit land forcibly. So, the Plaintiff filed the suit. 4. The Defendant No.2, in his written statement, asserted that all the Defendants have got the right, title, interest and possession over the suit land. He further stated that the Plaintiff has not pleaded as to how and from whom, he purchased the suit land and that to for what consideration. It is stated that Balakrishna had purchased the suit land from one Lingaraj Behera way back in the year 1954 when the land was under old Khata No.57 measuring Ac.0.66 cents out of Ac.0.98 cents, which corresponding to the present Mutation Khata No.143/106, Plot No.2097 admeasuring Ac.0.598 decimals. It is stated that the said deed was executed on 16.11.1954 and the Tahasildar, while mutating the suit land in the name of the Plaintiff in Mutation Case No.1490/2010, had not issued any notice. It is also stated that there was no transaction between the vendor and vendee in respect of the suit land on 20.11.2009 under registered sale deed No.2828 of 2009. The said deed is said to be void and the vendor Devbandhu son of Raghunath Behera had no right, title and interest over the suit land to sale the same to the Plaintiff. This Defendant No.2 claimed to be in physical possession of the suit land and paying Page 3 of 8 RSA No.20 of 2018 {{ 4 }} rent to the Government. He further stated to have no knowledge about his brother, i.e., Lingaraj Behera, Defendant No.4. It is his case that the suit land had never been partitioned amongst himself and his brothers. So, the deed of relinquishment is of no value in the eye of law. 5. The Defendant No.4, in his written statement, claimed that since the date of purchase of the suit land by his father from Lingaraj Behera on 16.11.1954 for a consideration of Rs.180/-, they are in exclusive possession of the suit land and during the last Settlement Operation, his father had filed the objection to record the suit land in his name but the Settlement Authority recorded the suit land in the name of the original owner Lingaraj Behera along with some other persons and as their father had purchased the suit land by an unregistered deed, the Settlement Authorities prepared the Record of Right in the year 1984 by clearly mentioning in the remarks column of the Record of Right that Balakrishna Mohanty was in possession of the suit land. He, therefore, stated that the suit land, being in possession of their father Balakrishna Mohanty and after him, by himself and his brothers for all these period, they have acquired the title over the said land by way of adverse possession. He admitted that said deed of relinquishment is a forged document. It is stated that the Plaintiff has no right, title and interest over the suit land. 6. The Defendant No.1, in his written statement adopted the written statement filed by Defendant Nos.2 and 4. Similarly, Defendant No.3, has also adopted the written statement filed by Defendant No.4 and he claimed that he has 1/9th share over the suit RSA No.20 of 2018 Page 4 of 8 {{ 5 }} land. All have stated that the Plaintiff has no right, title and interest over the suit land. 7. The Trial Court, faced with the above rival pleadings, has framed five issues. Rightly, going to answer the crucial issues as to the claim over the property by the Plaintiff and the rival claim over the said property by the Defendants, in deciding the fate of the suit as to whether the Plaintiff would be entitled to get the decree of permanent injunction, the Trial Court has analyzed the evidence on record both oral and documentary. The finding has ultimately been given that the Plaintiff is entitled to the decree of permanent injunction. The Defendant No.4, having carried the First Appeal in assailing said judgment and decree passed by the Trial court in issuing permanent injunction as against him and other Defendants in restraining to enter upon the suit land, has failed in his attempt. Hence. The Second Appeal.
Legal Reasoning
8. Mr.Kar, learned counsel for the Appellant submitted that the Courts below have not properly appreciated the evidence on record in answering those issues. He submitted that the said sale deed obtained by the Plaintiff on 20.11.2009 vide Ext.3 is not legally valid and binding and accordingly, the mutation order basing upon which the Record of Right, in respect of the suit land, has been prepared in the name of the Plaintiff is of no legal value. He further submitted that the evidence leading to the possession of the suit land have not been properly appreciated and the Courts below, are not right in holding the Plaintiff to be in possession of the suit land. According to him, the said finding is the outcome of perverse appreciation of evidence inasmuch as the documents available in evidence have not RSA No.20 of 2018 Page 5 of 8 {{ 6 }} been looked into in their proper perspective. He, therefore, urged for for admission of this Appeal to answer the above as the substantial questions of law. 9. Mr.Dash, learned counsel for the Respondent No.1, in assisting the Court, in the matter of admission hearing, has submitted all in favour of the findings returned by the Courts below. According to her, when in the suit, the Plaintiff has claimed title over the property in question, the Defendants, who are the sons of Balakrishna claimed that they have purchased the suit land from the recorded owner, namely, Lingaraj Behera by an unregistered sale deed for a consideration of Rs.180/-, which has been admitted in evidence with objection and marked Ext.B. She further submitted that the Plaintiff, from the very beginning, claimed that he has the title over the suit land and as such, the same has been recorded in his name and, therefore, when the Defendants have never projected their claim of acquisition of title by way of adverse possession, she submitted that the Courts below have rightly held Ext.B to be void. She also submitted that when the Defendants were under the legal obligation to discharge the burden of proof that they have acquired title over the suit land by way of adverse possession, the evidence of D.W.4, who is a witness from the side of the Defendants cuts at the root at the case of Defendants when he has stated that the suit land is possessed by the Plaintiff. She submitted that the Plaintiff, having well proved his possession over the suit land and as the Defendants have failed to establish their claim of possession over the suit land as having been acquired by way of adverse possession, the Courts below did commit no error in decreeing the suit. RSA No.20 of 2018 Page 6 of 8 {{ 7 }} 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 11. The concurrent finding has been returned by the Courts below upon examination of the evidence and their evaluation that the Plaintiff is in possession of the suit land. The Plaintiff when has proved the Record of Right (Ext.1) he has also proved the rent receipt (Ext.2) in support of his possession. The D.W.4, who is the Defendant’s witness, in his cross-examination, has admitted that the suit land is in possession of the suit land and he has cultivated the suit land. He has further stated that the Defendant No.4 and others had forcibly attempted to enter upon the suit land. Thus, the evidence let in by the Plaintiff as to the possession of the suit land finds support even from the evidence tendered by the Defendants With such evidence on record as to the possession of the suit land by the Plaintiff, when the Defendants have failed to prove that they have been in possession of the suit land from the time of their father on the basis of that unregistered deed of sale as on the date of the suit, in my considered view, without even going to rule upon the title of the Plaintiff over the suit land by virtue of his purchase followed by the mutation; the Courts below are right in passing a decree for permanent injunction safeguarding the possession of the Plaintiff in respect of the suit land as against the Defendants. The findings of the Courts below are thus found to have been rendered upon examination of the evidence and their assessment from every possible angle and do not suffer from any perversity. For all the aforesaid, this Court is not in a position to accept the submission of the learned counsel for the Appellant that there RSA No.20 of 2018 Page 7 of 8 {{ 8 }} arises any substantial question of law for being answered in this Appeal, meriting its admission. 12. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash) Judge Basu RSA No.20 of 2018 Page 8 of 8