The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.285 of 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 05.05.2017 & 12.05.2017 respectively, passed by the learned District Judge, Balasore in R.F.A. No.450 of 2014, confirming the judgment and decree dated 21.08.2014 & 28.08.2014 respectively passed by the learned Additional Senior Civil Judge, Balasore in Civil Suit No.1275/2007-I. Baijayanti @ Baijayanti Mohapatra ---- -versus- …. Appellant State of Odisha & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. S. P. Mishra Sr. Advocate For Respondents -
Legal Reasoning
Mr. G. N. Rout Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DATE OF HEARING :01.03.2024 :: DATE OF JUDGMENT:11.03.2024 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 05.05.2017 & 12.05.2017 respectively, passed by the learned District Judge, Balasore in R.F.A. No.450 of 2014. R.S.A. No.285 of 2017 Page 1 of 9 {{ 2 }} The father of this Appellant and husband of the Respondent No.2 had filed the suit (Civil Suit No.1275-2007-I) as the Plaintiff in the Court of learned Additional Civil Judge, Senior Division, Balasore. The suit is for declaration of right, title, interest over the land described in schedule-Ka of the plaint with further prayer to declare the recording of the said land in the Major settlement record of right to be wrong and for recovery of possession as well as permanent injunction. The suit stood dismissed. Thus, Chintamani Nayak, the sole Plaintiff and the predecessor-in-interest of the Appellant and Respondent No.2 had carried the Appeal under section 96 of the Code. During pendency of the Appeal, when he died, this Appellant and Respondent No.2 came to be substituted as his legal representatives and they pursued the Appeal. Said Appeal has also been dismissed. Now, therefore, the daughter of the original Plaintiff (deceased) as the Appellant before this Court in the Second Appeal. 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 case of the Plaintiff is that the suit land originally belongs to one Bimukhi Bewa and it was so recorded in her name under Revision Settlement R.S.A. No.285 of 2017 Page 2 of 9 {{ 3 }} Khata No.110. She executed a permanent lease deed in favour of Gokuli Nayak, the predecessor-in-interest of the original Plaintiff. It was for an area of Ac 0.55 decimal. The registered permanent lease deed is dated 23.02.1926. It is said that Bimukhi having granted that permanent lease had delivered the possession of the said land to Gokuli. Bimukhi had sold land measuring Ac0.50 decimal out of that very Khata 110 to Pranabandhu Bharati and other by registered sale deed dated 19.11.1923 followed by delivery of possession. Pranabandhu Bharati and others while in possession, permanently leased out the land on 09.04.1929 to that Gokuli Nayak by executing a permanent deed of lease coupled with delivery of possession. Accordingly, Gokuli remained in possession of land measuring Ac 1.05 decimal keeping it under one encloser. As all these transactions were during the fag end of Current Settlement Operation. The Record of Right in the said Current Settlement Operation was published in the name of Bimukhi under Sabik Khata No.284. Then came into force the Estate Abolition Act, 1951. Gokuli Nayak being in possession of the land in question became the tenant under the State and went on paying rent to the State. After the death of Gokuli, his son Chintamani, the original Plaintiff came to succeed the property. In the Major Settlement Operation, although he produced all such records, the Settlement R.S.A. No.285 of 2017 Page 3 of 9 {{ 4 }} Authorities finally published the M.S. Record of Right in Khata No.123 in favour of Chintamani, but it was only for an area of Ac0.84 decimal instead of Ac1.05 decimal. The shortage of area of Ac0.21 decimal stood amalgamated with M.S. Plot No.329 under M.S. Khata No.479 to the extent of an area of Ac0.03 decimal, in Plot No.310 under Khata No.480 to an extent of Ac0.18 decimal. This was not within the knowledge of Chintamani. Subsequently, when Raghupati Major Settlement Operation commenced, Chintamani produced all those documents for recording the property in his name. However, in the said settlement, the land to an extent of Ac0.91 decimal came to be recorded in his name, still leaving the shortfall of Ac0.14 decimal which was recorded in the name of State (Defendant) as Gochar and village road. When with this said recording, attempt was made by the Defendant to dispossess the Plaintiff, he filed the suit. 4. The Defendant in the written statement denying the case/claim of the Plaintiff stated that the property which has been recorded in the name of the State is not the short fall of the land of the original Plaintiff and it has nothing to do with the land of the Plaintiff which he claims to have taken on permanent lease. However, the written statement being filed after the statutory period and no attempt being made to get it accepted, that has remained simply on record without forming the part of the pleadings. R.S.A. No.285 of 2017 Page 4 of 9 {{ 5 }} 5. The Trial Court in order to decide the suit framed the following issues:- i. Whether the suit is maintainable in the present form? ii. Whether there is cause of action to file this suit? iii. Whether the plaintiffs have got right, title, interest over the KA schedule land? iv. Whether the recording of MS ROR and RMS ROR is wrong? v. Whether the defendants are injuncted permanently not to interfere in the peaceful possession of the plaintiff? required to be vi. To what other relief, plaintiff is entitled? 6. Coming to decide the crucial issue no.3, 4 & 5 together as those are interlinked upon examination of the evidence on record and evaluation of the same especially the documents proved from the side of the Plaintiff, the Trial Court without finding the registered sale deed dated 19.11.1923 did not accept the case/claim of the Plaintiff as regards his right, title, interest over that shortfall area as aforestated which has been recorded in the name of Government Khata. The suit having been dismissed, the Plaintiff being non- suited had carried the Appeal which yielded no fruitful result. 7. The present Appeal has been admitted to answer the following substantial questions of law:- R.S.A. No.285 of 2017 Page 5 of 9 {{ 6 }} “whether the conclusion of the lower appellate court which runs as under:- xx xx xx Therefore, in absence of evidence to co-relate the suit land as per the R.M.S. and M.S. Record of Right with the revision settlement Record of Right and C.S. Record of Right; mere filing of the sale deed bearing No.4342 dated 19.11.1923 executed by Bimukhi Bewa in favour of Pranabandhu Bharati and others from whom Gokuli Nayak, the predecessor in interest of the plaintiff, subsequently got an area Ac.0.50 dec. is of no help to the plaintiff to get a declaration of his title over the suit land; more particularly when the suit land has been recorded in the name of the Government and the nature of the property is village road and Gochara”; offends the settled principles of law that the courts while recording a finding with regard to the identification of the land in the suit in case finds any discrepancy in the records produced by the parties or ambiguity, have to bank upon the evidence regarding boundary of the land in question so as to finally put the point of identification at rest and therefore in the absence of said exercise being undertaken; whether the judgment and decree non-suiting the plaintiff (appellant) are to be held as bad and unsustainable in the eye of law?” 8. Mr. S. P. Mishra, learned Senior Counsel for the Appellant submitted that when on the basis of that very permanent lease deed and sale deed standing in favour of Gokuli, Ac0.91 decimal of land has already been recorded, the non-recording of the rest portion of the land goes without any justification and, therefore, when it has been proved that said land has been R.S.A. No.285 of 2017 Page 6 of 9 {{ 7 }} recorded in the name of the Defendant in Government Khata, the courts below ought to have decreed the suit filed by the Plaintiff. According to him, the discussion and the conclusion rendered by the First Appellate Court is wholly untenable. 9. Mr. G. N. Rout, learned Additional Standing Counsel submitted all in favour of the conclusion arrived at by the First Appellate Court. According to him, when the Plaintiff has failed to establish his case in view of the stand taken by the Defendant that the suit land does not relate to the properties which are said to have been purchased and leased out as per the case of the Plaintiff, the First Appellate Court has rightly confirmed the dismissal of the suit. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 11. When the Plaintiff claims that the suit properties which has gone to the Government Khata in the Raghupati Settlement Record was the property acquired by Gokuli from Bimukhi and Pranabandhu Bharati and others, the burden of proof lies on the Plaintiff to prove that the very land which now stands recorded in the Government Khata and which is the suit land is the R.S.A. No.285 of 2017 Page 7 of 9 {{ 8 }} land which Gokuli had acquired. The plaint schedule shows the plot no. to be 305 and 306 as assigned in Raghupati Settlement and that corresponds to Major Settlement Plot No.329 and 310. These lands are stated to have come from Current Settlement Plot No.2110. However, the plot index proved from the side of the Plaintiff Ext.1 shows that Raghupati Major Settlement Khata no.883 & 884 corresponds to Major Settlement Khata No.479 and 481 whereas Raghupati Major Settlement Plot No.305 and 306 correspond to Major Settlement Plot No. 329 and 310. The Plaint schedule refers to Plot No.480 whereas the information placed is to the effect that Raghupati Major Settlement Khata No.884 corresponds to Major Settlement Kahta No.481. The plot index Ext.1/A goes to show that the plot indexes do not correspond to Major Settlement Plot No.329 and 310 as per the entry made in plot index Ext.1. Plaint schedule reveals the suit land to be measuring Ac0.14 decimal and that is appearing to have not been properly described. In that situation, the First Appellate Court having said that there being no evidence to corelate the suit land with the land recoded in the Raghupati Major Settlement and Major Settlement Record of Right with the Revision Settlement Record of Right and Current Settlement Record of Right, the Plaintiff’s claim/case as laid over the suit schedule property is not acceptable and is found to have been rightly so held by the First Appellate Court. The conclusion in my R.S.A. No.285 of 2017 Page 8 of 9 {{ 9 }} considered view is based on proper appreciation of the documentary evidence which play vital role in the present case for deciding the crucial issues. Accordingly the final view taken by the First Appellate Court is found to be well in order. 12.
Decision
In the result the Appeal stands dismissed. No order as to cost. Gitanjali (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 19-Mar-2024 11:26:38 R.S.A. No.285 of 2017 Page 9 of 9