High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA No.87 of 2023 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned 1st Additional District Judge, Puri in RFA No.04/85 of 2008/2006 in confirming the judgment and decree passed by the learned Additional Civil Judge (Senior Division), Puri in C.S. No.57/154 of 2005/2002. ……… Souri Maharana & Others :::: Appellants -:: VERSUS ::- Bhanumati Dei & Others :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellants … Mr. D.P. Mohanty, Advocate For Respondents … Mr. A.P. Bose, Advocate ------ CORAM : HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 08.12.2023 :: Date of Judgment: 20.12.2023 --------------------------------------------------------------------------------------- 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 and decree passed by the learned First Additional District Judge, Puri in R.F.A. No.04/85 of 2008/2006. The Predecessor-in-Interest of Respondent Nos.1 to 6, namely, Balabhadra Maharana with Respondent No.7 had filed C.S. No.57/154 {{ 2 }} of 2005/2002 in the court of the Additional Civil Judge (Sr. Division), Puri. The suit is for declaration of their title and recovery of possession from the Predecessor-in-Interest of the Appellant Nos.1 and 2 as well as
Legal Reasoning
the Appellant Nos.2 and 3 who had been arraigned as the Defendants. Said Balaram Maharana having died during pendency of the suit, these Respondent Nos.1 to 6 have come on record and prosecuted the suit with Respondent No.7. The suit having been decreed, the Predecessor-in-Interest of the Appellant Nos.1 and 2 with the Appellant Nos.3 and 4 had carried the Appeal under Section 96 of the Code praying to set aside the said judgment and decree passed by the Trial Court. It be stated here that the Predecessor-in-Interest of Appellants Nos.1 and 2 died during pendency of the First Appeal and then these Appellant Nos.1 and 2 came on record and joined the Appellant Nos.3 and 4 in prosecuting the First Appeal. Since the First Appeal has been dismissed, the present Second Appeal is at the instance of these Appellants who are under the sufferance of the judgments and decrees passed by both the Courts below. 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. Page 2 of 10 {{ 3 }} 3. Plaintiffs case is that the original Defendant No.1, namely, Tareswar Maharana was the owner in possession of land under Plot No.3783 and 3785 measuring Ac.0.26 and Ac.0.21 dec. respectively. The land was recorded in his name under Khata No.576 in Mouza- Godiput-Matiapada. The Defendant No.1 had sold the suit land under Plot No.3783 measuring Ac.0.18 ½ dec. which is the subject matter of the present suit to the original Plaintiff in the year 1968. It is stated that the possession pursuant to the said sale was given by the original Defendant No.1 to the original Plaintiff. However, it was detected later that while preparing the sale deed either due to mistake or mischievously actually sold Plot No.3783 being not reflected, in its place 3785 had been mentioned; when the area has, however, remained intact as sold. It is stated that despite such wrong/mischievous mention of the plot number, the boundary of the land which was actually intended to be sold and sold by the original Defendant No.1 to the original Plaintiff is reflected correctly in the sale deed, which relates to the sold land under Plot No.3783. The Plaintiff No,1 had never any doubt about his purchased land and he was possessing the same without noticing such mistake/ mischief. In the year 1987, the original Plaintiff filed a mutation proceeding and then such mistake as to mention of Plot No.3785 in place of Plot No.3783 was detected. But then when the Page 3 of 10 {{ 4 }} Defendants were approached to rectify the defects, they did not come forward. The original Plaintiff, however, continued to remain in possession of the suit land till 1996 and enjoy the same by raising construction around it. The Defendants subsequently demolished the construction for which the original Plaintiff had to file the suit. 4. The Defendants in their written statement while traversing the plaint averments have specifically stated that they had actually mortgaged the land measuring Ac.0.18 ½ dec. out of total Ac.0.21 dec. from Plot No.3785 for a sum of Rs.600/- with the Defendant No.1. But since the Plaintiff was not having any money lending license, he did not agree that a deed of mortgage be executed in his favour and on the other hand, he asked the Defendants to execute a sale deed. It is stated that the Defendants have never intended to enter in to any sale transaction in respect of any land and their purpose was to mortgage the property. Therefore, there had been no delivery of possession of any land to the original Plaintiff. It is stated that the original Plaintiff with an ulterior motive in order to grab the suit land had filed the mutation proceeding in respect of the land under Plot No.3783, which was dismissed for default and thereafter, the original Plaintiff had also filed another mutation case for the land under Plot No.3785. The Defendants challenged the mutation order by carrying Appeal which stood allowed and the matter Page 4 of 10 {{ 5 }} was remanded to the Original Authority for necessary verification as to the possession of the plot of land in the field. 5. On the above rival pleadings, the Trial Court framed as many as seven issues. Upon their detail examination and discussion of evidence, answering the crucial issues as to whether the transaction between the original Plaintiff and Defendant No.1 in respect of the land was a sale as claimed by the original Plaintiff or mortgage as asserted by the Defendants; it has been given in favour of the original Plaintiff. Then coming to the subsequent issue in view of the answer as above, the Trial Court evaluating the evidence, both oral and documentary and finding the surrounding circumstances emanating therefrom has concluded that the sale transaction was in respect of the land under Plot No.3783 and not under Plot No.3785. Having said so, the Trial Court decreed the suit. 6. The aggrieved Defendants having carried the First Appeal challenging the judgment and decree passed by the Trial Court since have failed, they are before this Court with this Second Appeal. 7. The Appeal has been admitted to answer the following substantial questions of law:- “(i) Whether the findings of the Courts below that the Plaintiffs by virtue of registered sale deed dated 10.04.1968 (Ext.4) have purchased the landed property of Ac.0.18.5 decimals from out of plot no.3783 is the outcome of perverse appreciation of evidence? Page 5 of 10 {{ 6 }} (ii) Whether the suit filed by the Plaintiff in the year 2002 claiming that the purchase was not the land in respect of the plot no.3785 but plot no.3783 is barred by limitation?” 8.
Legal Reasoning
Heard Mr. D.P. Mohanty, learned counsel for the Appellants and Mr. A.P. Bose, learned counsel for the Respondents at length. I have gone through the rival pleadings and perused the evidence, both oral and documentary. 9. The registered sale deed which is the subject matter of the present suit is dated 10.04.1968. When the Plaintiff claims that the transaction was a sale, the said nature of transaction and the nomenclature in the deed (Ext.4) are disputed by the Defendants in saying that it was a mortgage and that was not so expressed in clear terms as the original Plaintiff was not having a money lending license and therefore it was kept hidden. The Defendants have not stated that the Plaintiff was a money lender by providing examples that he was regularly engaged in advancing loan to different persons charging interest over the said money lent to be paid by them and was so collecting. The averment on the above score is too general in nature. This fact has also not been proved leading any satisfactory evidence. Furthermore, the sale deed being of the year 1968, the Defendant has never raised that question anywhere. It is also not stated that the Plaintiff was paid back with the Page 6 of 10 {{ 7 }} loan amount and was asked to hand over the sale deed which he did not and then what legal action/s was/were taken against the original Plaintiff. It is also not stated as to what type of mortgage it was. With these broad features, there being no other convincing evidence, the Courts below have concurrently found the Defendant No.1 to have failed to prove by preponderance of probability that it was a mortgage but not sale. Since no perversity is pointed out or noticed therein that finding firmly stands. 10. Now the question revolves whether the sale was in respect of land under plot No.3783 as claimed by the Plaintiffs or it was in respect of the land under Plot No.3785 as asserted by the Defendant No.1. Before producing in that direction, it be stated that the two stands taken by the Defendants are in conflict with one another. It is no doubt true that the number of plot finds mention in the sale deed is ‘3875’. However, there is no dispute with regard to the area which is stated to be Ac.0.18 ½ dec. The total area of Plot No.3783 is 26 dec. whereas that of Plot No.3785 is 21 dec. So the sold lands being adjusted towards Plot No.3783, there remains 7 ½ dec. as the residue land whereas when adjusted under Plot No.3785 there remains only 2 ½ dec. Ordinarily, an owner would choose to sale from a bigger plot so that the residue remains more for being effectively or gainfully utilized but not from a smaller plot where Page 7 of 10 {{ 8 }} practically the residue area then stands so megre that it becomes wholly unusable in future and its value is reduced substantially, may be at times to zero depending on the situations. This is found to be in the present case if the case of the Defendants as to the number of the plot involved in the transaction is taken as ‘3785’. So in that way the above circumstance lends support to the case of the Plaintiffs. But that is not enough to finally conclude. It is always stated that men may lie but the circumstances do not. So when both sides claim the transaction to be on two different plots, the determinative factor in the given case would certainly be the description of the boundary in the concerned document-Ext.4 which can be adhered to as the milestone. Both the Courts below on detail discussion of evidence on record have arrived at a conclusion that the boundary given in the sale deed remain the same as the boundary in respect of Plot No.3783. The evidence of possession of the Plaintiff over that very patch of land as per the boundary shown in the sale deed, has been found out by the Courts below up-to a particular point of time till demolition of the boundary wall by the Defendants. The above concurrent finding of the Courts below are found to have been arrived at on just and proper evidence and no element of perversity is traced out Page 8 of 10 {{ 9 }} therein. The above discussion thus answers the first substantial question of law in favour of the Plaintiffs. 11. The next substantial question of law concerns with the entertainment of the suit in view of the challenge by the Defendants that it is barred by limitation. It is true that as provided in Article-58 of the Limitation Act the period of three years is prescribed for the purpose of filing a suit to rectify the error in the sale deed in saying that the parties having intended to do otherwise or go for in respect of different properties whereas the document has come into being in respect of another property which thus needs rectification. But the present one is a suit where the Plaintiffs claim for declaration of title in respect of the property which, according to them, finds mention in the sale deed with its description but carrying an inadvertent mistake/error only in respect of the plot number. The given case is thus not the one where the Plaintiffs say that there being no intention to sale the land as described in the sale deed and the intention for sale being in respect of another patch of land and accordingly, the transaction having been fructified in respect of that another plot of land but not the patch of land mentioned in the sale deed, the said deed needs be rectified. In that event only, the suit would have certainly fallen with the ambit of the provision contained in Article-58 of the Limitation Act for computation of the Page 9 of 10 {{ 10 }} period of limitation for filing the suit. Here the land over which the Plaintiff seeks the declaration finds described in the sale deed (Ext.4) with its boundary and the only mistake/ error is in relation to the plot number that to in respect of the last digit, i.e., ‘5’ finding so mentioned instead of ‘3’. Therefore, the suit as laid for title and possession as the Plaintiffs claim is not barred by limitation. This substantial question of law also accordingly stands answered in favour of the Plaintiffs. 12.
Decision
In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash), Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 03-Jan-2024 12:37:27 Page 10 of 10