The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.222 of 2000 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 21.02.2000 and 18.03.2000 respectively passed by the learned Additional District Judge, Bhubaneswar in Title Appeal No.05/39 of 1999/98 confirming the judgment and decree dated 22.10.1998 and 05.11.1998 respectively passed by the learned Civil Judge, Senior Division, Bhubaneswar in O.S No.30 of 1998-I. ---- Prafulla Chandra Samanta …. Appellant -versus- Subash Chandra Badajena & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.G.K.Mishra (Advocate) For Respondents - Mr.D.P.Mohanty (Advocate for R-1) CORAM: MR. JUSTICE D.DASH Date of Hearing :02.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 21.02.2000 and 18.03.2000 respectively SA No.222 of 2000 Page 1 of 7 {{ 2 }} passed by the learned Additional District Judge, Bhubaneswar in Title Appeal No.05/39 of 1999/98. By the same, the Appeal filed by the present Appellant being the aggrieved Defendant, in Original Suit No.30 of 1998-I of the Court of learned Civil Judge, Senior Division, Bhubaneswar under section 96 of the Code has been dismissed and thereby, the judgment and decree passed by the Trial Court have been confirmed in the First Appeal in decreeing the suit declaring the right, title, interest and possession of the Respondent No.1 (Plaintiff) over the land described in schedule ‘B’ of the plaint. 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. 3. The Plaintiff’s case is that the land in schedule ‘B’ with other lands jointly belonged to Behera family and Bhutia family and each family had half interest over the same. It is stated that the members of both the families had amicably partitioned said joint property amongst themselves and were in separate possession of the same in accordance with their shares. It is further stated that the northern half of the total SA No.222 of 2000 Page 2 of 7 {{ 3 }} land had fallen to the share of Bhutia family, whereas the southern half had gone to the share of Behera family. The subject matter of the suit is the southern half of the said land which has been specifically described in schedule ‘B’ of the plaint. The Plaintiff claims to have purchased the suit land from the members of the Behera family for valuable consideration and being delivered with the possession he claims to be in possession as such having the right, title and interest over the same. It is alleged that on 15.01.1988, the Defendant No.1 tress-passed over the suit land and when he demolished portion of the boundary wall put up by the Plaintiff and further threatened to take away the entire land into his possession, the suit has come to be filed. 4. The Defendant No.1 in his written statement while traversing the plaint averments admitted that the suit property with other land originally belong to two families. He, however, denied the purchase of the suit land by the Plaintiff from the heirs of Sankar Behera as claimed and to be the possession of the same as asserted. He asserts that the Plaintiff was never in possession of the property in schedule ‘B’ and had never erected the boundary wall around it. It is stated that the suit property is the joint property of Bhutia family and Behera family and it SA No.222 of 2000 Page 3 of 7 {{ 4 }} was all along in joint possession of the recorded tenants and they had authorized M/s Bikas Estate & Housing Private Ltd. by executing a deed of power of attorney on 25.09.1987 to develop their properties which includes the suit land for sale the same to the intending purchasers. The Company then developed the property, divided the same into small plots and sold to different persons for valuable consideration. The Defendant No.1 claims to have purchased one plot from the said Company by registered sale deed dated 04.01.1988 and taken the delivery of the possession of the same whereafter has constructed the boundary wall and put up two roomed house having asbestos roofing. 5. With the above rival pleadings, the Trial Court framed in total 8 issues. First of all, coming to the issue of partition between the members of the two families, upon examination of evidence and their evaluation, it has been held in the affirmative. The Trial Court then basing upon the evidence on record has held the Plaintiff to be the owner in possession of the suit land which he had purchased before the Housing Company came into picture to make develop the suit land and other land in dividing into small plots and sale thereof. SA No.222 of 2000 Page 4 of 7 {{ 5 }} 6. With above findings, when the suit stood decreed, the Defendant No.1 had filed the First Appeal which too has been dismissed. 7. Learned counsel for the Appellant (Defendant No.1) submitted that the finding of the Trial Court that the Plaintiff is in possession of the suit land basing upon Ext.3 is erroneous. He further submitted that there being no evidence that there was a partition between the members of the two families in so far as the properties including the suit properties are concerned, the finding is unsustainable being perverse. He contended that when the Plaintiff has not been able to prove through clear, cogent and acceptable evidence that he was in possession of the property described in schedule ‘B’ by virtue of his purchase under the sale deed (Ext.3) and that it was within the alleged share of Behera family, the suit ought not to have decreed by the Courts below. He, therefore, urged for admission of this Appeal to answer as the above as substantial questions of law. 8. Learned counsel for the Respondent in assisting the Court in the matter of admission of the Appeal; submitted all in favour of the findings returned by the Courts below. According to him, the Plaintiff having established his right, title, interest over schedule ‘B’ land by SA No.222 of 2000 Page 5 of 7 {{ 6 }} leading clear, cogent and acceptable evidence and when the Defendant No.1 has failed to establish his claim over the same so as to declare it as the rightful owner, the judgment and decree passed by the Courts below are not liable to be interfaced with. He thus contends that there arises no substantial question of law for being answered, meriting admission of the Appeal. 9. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. 10. The trump card for the Plaintiff in seeking the relief of declaration of right, title, interest and possession over the suit land in schedule ‘B’ is the registered sale deed which has been admitted in evidence and marked as Ext.3 and it is dated 29.07.1983. This document contains the recital that the co-owners had delivered possession of the suit land to the Plaintiff. The Defendant No.1 is basing his claim upon the registered sale deed dated 04.01.1988 marked as Ext.A. This sale deed has been executed on the strength of the power of attorney (Ext.B) which has been executed by the very same co-owners who had sold the property to the Plaintiff under Ext.3. Thus it is seen that Defendant No.1 claims the property through those three who are his venders when they are also the SA No.222 of 2000 Page 6 of 7 {{ 7 }} venders of the Plaintiffs. In such state of affair, the Plaintiff’s sale deed being of an anterior date and when the recitals in the said sale deed (Ext.3) as regards delivery of possession of the suit property to the Plaintiff receives corroboration from the rent receipts (Ext.4) series showing that the Plaintiff has been paying rent for the suit land since 1987, the Courts below in my considered view did commit no error at all in decreeing the suit of the Plaintiff holding him to be the rightful owner in possession of the suit property. This Court thus finds that no such substantial question of law arises for being answered, meriting admission of this Appeal. 11.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. (D. Dash), Judge Gitanjali SA No.222 of 2000 Page 7 of 7