Civil Suit No. 84 of 2008 · The High Court · 2016
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.101 OF 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure,1908 assailing the judgment and preliminary decree dated 9th December 2016 and 23rd December 2016 respectively passed by the learned District Judge, Ganjam in R.F.A. No.76 of 2013 confirming the judgment and decree dated 31.08.2013 and 13.09.2023 respectively passed by the Civil Judge (Junior Division) in Civil Suit No.84 of 2008. ---- Purnabasi Panigrahy :::: Appellant -versus- Manoranjan Patra & Another :::: Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ======================================================================================= For Appellant -
Legal Reasoning
Mr. S.K. Mishra, For Respondent - ------------------- Sr. Advocate. CORAM: MR. JUSTICE D. DASH Date of Hearing: 24.01.2024 :: Date of Judgment:08.02.2024 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 09.12.2016 and 23.12.2016 respectively passed by the learned District Judge, Ganjam in R.F.A. No.76 of 2013. RSA No.101 of 2017 Page 1 of 7 {{ 2 }} The Appellant as the Plaintiff had filed Civil Suit No.84 of 2008 in the Court of learned Civil Judge (Junior Division), Berhampur for permanent injunction, restraining the Respondents arraigned as Defendants from interfering and disturbing her peaceful possession over the suit land. The suit having been dismissed, the Appellant being the unsuccessful Plaintiff had carried Appeal under Section-96 of the Code, which has also been dismissed. Hence, the present Second Appeal is at the instance of Appellant who has remained as unsuccessful Plaintiff in 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. 3. Plaintiff’s case is that she is the owner in possession of the land under Plot No.231/3721 appertaining to Khata No.1030/1520 to the extent of Ac.0.073 decimals of mouza: Baidyanathpur under Berhampur Tahasil. It is stated that she has purchased the suit plot from one Sapan Kumar Padhy by registered sale-deed dated 04.04.2001. After purchase, the land has been mutated in her name by order passed in M.C. No.3824 of 2001 and accordingly, the patta in respect of suit land stands in her name. She then started construction over the suit land. When the matter stood, on 06.11.2008, the Defendants having no RSA No.101 of 2017 Page 2 of 7 {{ 3 }} manner of right, title and interest over the property came over there and stopped the construction work. They also threatened the Plaintiff. The Plaintiff therefore instituted the suit seeking the relief of permanent injunction. 4. The Defendants in their written statement stated that the land in suit originally belong to one Swarnamayee Panigrahy, who had sold the same to one Krushna Chandra Panda by registered sale deed on 12.05.1960. Later on Krushna Chandra sold the suit land to Bijay Kumar Patra, the father of the Defendants by two registered sale-deeds for valuable consideration. The possession of the father of the Defendants namely, Bijay Kumar has been recognized by the Revenue Authority during settlement operation and the land has accordingly been assigned with Khata No.542 under Plot No.158/2348. The record of right is in favour of Bijay Kumar Patra. It is further stated that Swarnamayee Panigrahy, the original owner have never executed any power of attorney in favour of Rajnish Mishra. However, with the help of forged document, Rajnish created a sale deed in favour of Sapan Kumar Padhy and it was registered at Chatrapur, when the said property is situated within the jurisdiction of Berhampur Sub- Registrar. It was with intent to grab the land covered under Plot No.158/2348. Rajnish thereafter executed rectification deed on RSA No.101 of 2017 Page 3 of 7 {{ 4 }} 18.01.2001 for correction of the boundary of the land described in sale deed dated 03.11.2000 without any basis which is also attacked as a fraudulent document. During pendency of the suit, instead of contesting the same, Sapan Kumar Padhy and Rajnish Mishra colluded in creating nominal sale deed in favour of the Plaintiff which is his hit under the provision of section-52 of the Transfer of Property Act, 1882. 5. The Trial Court on the above rival pleadings framed as many as four (4) issues. Answering the crucial issue as to the entitlement of the Plaintiff to the decree for permanent injunction, upon examination of evidence and their evaluations has came to conclude that the foundation of the claim of permanent injunction simpliciter by the Plaintiff is not solely based on her possession over the suit land but is standing on the base of title which declaration is absent in the suit and for that the suit as laid is not maintainable. Next examining the evidence, the Trial Court has also found the Plaintiff to have failed to prove her possession over the suit land so as to be protected by a decree for permanent injunction. Thus, the Trial Court held that the suit for that permanent injunction simpliciter is not maintainable without the prayer of declaration of right, title and interest as such the right to possess and that the Plaintiff is not entitled to the decree RSA No.101 of 2017 Page 4 of 7 {{ 5 }} for permanent injunction in the absence of proof of possession of the suit property by her. The Trial Court thus dismissed the suit. 6. The First Appellate Court being moved by the unsuccessful Plaintiff has of course come to conclusion that in the facts and circumstances as emerges from the rival pleadings and evidence as laid by the parties, the finding of the Trial Court that the suit for permanent injunction simpliciter, is not maintainable without their being prayer for declaration of right, title and interest of the Plaintiff and as such her right to possess the suit land is not tenable. It has however, concurred with the finding of the Trial Court that the Plaintiff has failed to prove her possession of the suit land so as to be entitled to the decree for permanent injunction in order to protect her possession in respect of the suit land. 7. Learned Counsel for the Appellant (Plaintiff) submitted that when the First Appellate Court has held that the Defendants has no concern over the suit land and they are not in possession of the same; on the face of the evidence let in by the Plaintiff, the suit of the Plaintiff ought not to have been dismissed without granting the relief of permanent injunction. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. RSA No.101 of 2017 Page 5 of 7 {{ 6 }} 8. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below and have also perused the pleadings and the cited documents. 9. It appears form the discussion of evidence made by the First Appellate Court in paragraph-11 of its judgment that there has been thread bare analysis of evidence of the Plaintiff examined as P.W.2 and her brother coming to the witness box as P.W.1. The documentary evidence on record has been scanned. Upon detail analysis of the evidence from all possible angles, conclusion has been that the land which has been purchased by the Plaintiff from her vendor has not been established to be the same land which her vender had purchased and therefore, the mutation made in favour of the Plaintiff has been set aside in Appeal which the Plaintiff has not further challenged. The First Appellate Court having concurred with the finding of the Trial Court that the possession of the suit land by the Plaintiff has not been established through clear, cogent and acceptable evidence, this Court is not in a position to find any such infirmity much less to say perversity noticed therein. When the concurrent findings of the Courts below that the Plaintiff has not proved her possession over the suit land stand, the result of dismissal of the suit is inevitable. The Plaintiff having failed to prove her possession of the suit land, she is thus not entitled to a decree for permanent injunction. RSA No.101 of 2017 Page 6 of 7 {{ 7 }} 10. In the wake of aforesaid discussion and reasons, the submission of the learned Counsel for the Appellant (Plaintiff) cannot be countenanced with to say that there arises any substantial question of law 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. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 09-Feb-2024 10:57:17 RSA No.101 of 2017 Page 7 of 7