The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.174 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 15th February, 2016 & 19th February, 2016 respectively passed by the learned District Judge, Kalahandi, Bhawanipatna in R.F.A. No.27 of 2007 confirming the judgment & decree dated 23rd March, 2007 & 6th April, 2007 respectively passed by the learned Civil Judge, Junior Division, Bhawanipatna in Title Suit No.12/66 of 1995- 2001. Chintamani Goud ---- -versus- Sikimdar Gahir (dead) his LRs, namely, Atma Gahir & Others …. …. Appellant Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.T.R. Meher, B.K. Baral, P.K. Mishra & R.K. Meher (Advocates) For Respondents -
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing : 05.03.2024 : Date of Judgment:11.03.2024 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 judgment and decree dated 15th February, 2016 & 19th RSA No.174 of 2016 Page 1 of 7 February, 2016 respectively passed by the learned District Judge, Kalahandi, Bhawanipatna in R.F.A. No.27 of 2007. The Appellant with Respondent Nos.6 6o 8, as the Plaintiffs, had filed Title Suit No.12/66 of 1995-2001 in the Court of the learned Civil Judge, Junior Division, Bhawanipatna arraigning the predecessor-in-interest of Respondent Nos.1(i) & (ii) and the Respondent No.2 to 5 as the Defendants. During pendency of the suit, the original Defendant No.1, namely, Srikamdar Gahir, having died, these Respondent Nos.1(i) & (ii) came on record, being substituted. The suit is for declaration of right, title, interest and declaring the sale deed as forged and fake. The suit, having been dismissed, this Appellant and Respondent Nos.6 to 8, being the unsuccessful Plaintiffs, had carried the Appeal under section 96 of the Code, which has also been dismissed. The present Second Appeal is, however, at the instance of the Appellant, who was one of the four Plaintiffs. 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. Plaintiffs’ Case:- The grandfather of the Plaintiffs, namely, Krushna Gouda was the recorded tenant of the land under Khata No.19 of Village- Chapatkhanda measuring an area of Ac.15.72 decimals as per the Page 2 of 7 RSA No.174 of 2016 record of 1955-56 settlement. He was in possession of the land till his death in the year 1965. His son Balmat had predeceased him and another son Srimat died 3 to 4 years after the death of Balmat. The children of Balmat and Srimat were minors and their grandfather Krushna used to look after them and their property. During this period, Krushna became blind and could not look after the cultivation of the land. He, therefore, leased out the same. At the time of death of Krushna, his grandson (Plaintiff No.1) was only ten years old when other Plaintiffs were younger to him. So, they could not take proper step for recording of the suit land in their name. None-the-less, they went on paying the land revenue to the State. When they crossed the age of discretion, Plaintiff No.1 went to Village-Dunguripali leaving the lands in the care and management of other co-owners. When they decided to get the lands mutated in their name, they came to know on enquiry that Defendant Nos.1 to 3 have already got the suit lands recorded in their favour by falsely stating to have purchased the same. They, however, avoided to produce the deeds. In the year 1990, when the Plaintiff decided not to give Schedule-B & C land on lease, the Defendant Nos.4 & 5 forcibly entered into upon the suit land and came into possession of those lands stating to have purchased the same. It is stated by the Plaintiffs that Krushna had never sold the in Schedules-A, B & C to the Defendants and they have created forged and false sale Page 3 of 7 RSA No.174 of 2016 deeds in their favour and on the basis of those forged sale deeds, they have been able to obtain the mutation orders and record the suit land. When the Defendants, having entered upon the suit land, refused to give possession of the same to the Plaintiffs, the suit has come to be filed. 4. The Defendants, coming to contest the suit, pleaded that the Plaintiff No.1 had earlier filed T.S. No.15 of 1987 against Defendant Nos.1 & 2 claiming Krushna Gouda to have expired in or around the year 1982. The Defendants resisted the claim of the Plaintiffs by stating that Krushna Gouda had sold the land under Plot Nos.413/843, 413/891 & 413/841 in total measuring an area of Ac.2.17 decimals to the Defendant No.1 by registered sale deed in the year 1968; Plot Nos.407/889 & 409/890 for an area of Ac.0.33 decimals to Defendant No.2 by registered sale deed in the year 1970; and Plot Nos.413/886 & 411 for an area of Ac.0.71 decimals to the mother of Defendant No.5 by registered sale deed in the year 1957. It is stated that Krushna, having sold the properties, had given delivery of possession of the same to the respective vendees and they have been in possession of the same all along. 5. On the above rival pleadings, the Trial Court, having framed as many as four issues, took up the crucial issue as to the competing claim of the right, title, interest and possession, as advanced by the parties in so far as the suit lands are concerned. RSA No.174 of 2016 Page 4 of 7 Proceeding to answer the same, upon examination of the evidence both oral and document and their evaluation, the Trial Court decided those issues against the Plaintiffs. This answer has practically decided the fate of the suit. The First Appellate Court, being moved by the unsuccessful Plaintiffs, no such fruitful result has yielded for them. 6. Mr.T.R. Meher, learned counsel for the Appellant submitted that without taking the evidence on record into consideration, the Trial Court as well as the First Appellate Court have erroneously held that the Defendants have acquired right, title, interest and possession over the suit property by virtue of the sale deeds. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 7. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 8. Krushna Gouda, the father of Balmat and Srimat and as such, the grandfather of the Plaintiffs, having executed the sale deeds, those are being challenged by the Plaintiffs. It is stated that Krushna died in the year 1965 and thereafter, the Plaintiffs and other co-owners did not get their lands recorded in their name although they went on paying the land revenue to the State. At the time of death in the year 1965, the Plaintiff No.1 was ten years RSA No.174 of 2016 Page 5 of 7 old and the other Plaintiffs, who are his uncle’s son were still younger. It is stated that the Plaintiffs were going on leasing out the lands to the Defendants. But there stands no instrument to that effect. It is also not stated that such lease deeds were either registered or unregistered. Nothing has been produced and proved from the side of the Plaintiffs. It further appears that the Plaintiffs have suppressed the exact year of death of Krushna. At Paragraph-4 of the plaint when they plead that Krushna died in the year 1965, paragraph-1 of the plaint shows that Krushna died in or about the year 1955. The Trial Court, upon consideration of the evidence, in the backdrop of the rival pleadings, has assessed the year of death of Krushna to be 1972 with which the First Appellate Court, has concurred referring to the oral evidence of P.W.4 receiving the support from Ext.2 series wherefrom it is seen that Krushna also paid the rent for the month of July, 1971. The claim of the Plaintiffs is that the Defendants have admitted in the pleading that Krushna died in the year 1955 has been held to be not correct. The sale deeds standing in support of the claim of the Defendants are Exts.A, D, E & H. Looking at the age of the sale deeds, whey they have been produced from proper custody and proved, the Trial Court as well as the First Appellate Court, in my considered view, have rightly applied the presumption under section 90 of the Evidence Act. RSA No.174 of 2016 Page 6 of 7 When the Plaintiffs assert that the sale deeds are forged, bogus and fake documents, heavy burden of proof lies upon them to prove all such facts and circumstances. However, the evidence appears to be wholly lacking to support of such assertion of the Plaintiffs to any extent and the finding of the Courts below on that score against the Plaintiffs is concurrent. The Trial Court as well as the First Appellate Court appear to have gone of extensive discussion on the evidence both oral and documentary in arriving at that conclusion. Thus, the grandson impeaching the sale deeds executed by grandfather and then standing registered, which he during his lifetime, had never challenged and the challenge now being made, after along lapse of time in the year 1995 when the sale deeds are of the year 1957, 1968, 1970 & 1972, the Trial Court as well as the First Appellate Court has rightly non-suited them. 9. In the wake of aforesaid discussion, the submission of the learned counsel for the Appellant fails and this Court finds that there arises no such substantial question of law for being answered in this Appeal meriting its admission. 10. Resultantly, the Appeal stands dismissed. No order as to cost. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 13-Mar-2024 19:14:56 Basu RSA No.174 of 2016 (D. Dash), Judge Page 7 of 7