The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 486 of 2017 From the judgment dated 28.11.2017 passed by learned Additional District Judge, Nuapada in R.F.A. No.07/30 of 2015-16 confirming the judgment dated 25.08.2015 passed by Senior Civil Judge, Nuapada in C.S. No.79 of 2011. Ramesh Lal Sahoo ...… Appellant --------------- -Versus- Balwant Singh Gandhi since dead, His LRs, Jogendar Kaur Gandhi & others ..… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellant For Respondent Nos.1(a) to 1(d) & 5 For Respondent Nos.7 to 10 : M/s.R.K. Mohanty, Sr. Advocate & Mr. S.K.Sarangi, Advocate : M/s. N.K.Sahu, B.Swain, S.K.Nayak & N.R.Sahoo, Advocates : M/s.D.Patnaik & P.Jena, Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 17 SASHIKANTA MISHRA, J. JUDGMENT 16.05.2025 This is an appeal by one of the defendants against a confirming judgment. The suit filed by the plaintiff and the counter claim of defendant nos.6 to 8 and 10 being decreed, was confirmed by the First Appellate Court. 2. For convenience, the parties are referred to as per their respective status before the trial court. 3.
Legal Reasoning
The plaintiff filed the suit for declaration of his right, title and interest over the suit land and for a declaration that the RSD No.1229 of 2009 executed in favour of defendant no.5 is null and void and also for declaration that recording of the Schedule-E land in favour of defendant no.5 is erroneous and for recovery of possession. 4. The plaintiff’s case, briefly stated, is that the suit properties were originally recorded in the names of Charan Das, Durlav Das and Bihari Das in the 1965 Settlement. In the subsequent settlement held in the year Page 2 of 17 1995, the properties came to be recorded in the names of Bhagaban Das, Jamuna Das, Shyam Das, Munga Das and Para Das. The plaintiff purchased Ac.3.00 dec. of land as per Schedule-A from Charan Das and Bihari Das as per RSD No.1332/1968 on 27.04.1968. The other recorded tenant, Durlav Das was dead and being unmarried, he had no issue. The plaintiff stepped into possession after such purchase. During the Hal settlement operation in 1995, he was residing in Khariar Road, for which he could not appear before the Settlement Authorities to present the fact of his purchase of the schedule land. As such, said land was recorded in the name of Bhagaban Das and others, who are the successors-in-interest of the original recorded tenants. The particulars of said land have been mentioned in Schedule-B. The Government acquired Ac.0.78 decimals for excavation of main canal of Khariar barrage, which is mentioned in Schedule-C. The plaintiff is in possession of the remaining land measuring Ac.2.15 decimals, as described in Schedule-D. Defendant no.5 falsely claimed to be the owner of Schedule-E land by Page 3 of 17 projecting that he purchased the same vide RSD No.1229 of 2009 from the successors-in-interest of the original recorded owners and also got the same recorded in his name in Mutation Case No.978 of 2009 behind the back of the plaintiff. On 30.06.2011, defendant no.5 came over the suit land and claimed his right over it. Hence, the suit. 5. Defendant no.5 contested the suit by filing writing statement admitting that Ac.2.93 decimals of land under Schedule-B stands recorded in the name of Bhagaban Das and others as per hal settlement in the year 1995. He further claimed to have purchased a portion of the suit land in the year 2009 and specifically disputed the claim of the plaintiff that he had purchased any land from Charan Das and Bihari Das in 1968. He specifically took the plea that the RSD No.1332 of 1968 is a fictitious document. The further claim of the plaintiff that the original RSD had been eaten by ‘white ants’ was sought to be refuted as false. He claims to have purchased the land Ac.1.72 decimals of land as per Schedule-E from Page 4 of 17 defendant nos.1 to 4 for a consideration of Rs.1,03,200/- and stepped into possession thereafter. 6. Defendant nos.6 to 8 and 10 filed written statement by stating that the plaintiff was aged about fifteen years in 1968. In fact, the suit land was purchased by Rawel Singh Gandhi, father of the plaintiff and defendant nos.6 to 9 and grandfather of defendant no.10 for a consideration amount of Rs.1151/- paid from out of his own income. The plaintiff had no income at that time. However, they supported the claim of the plaintiff that Charan Das and Bihari Das had sold the suit land in his favour and that they were residing at Khariar Road during the Hal settlement operation, for which they could not present themselves before the Settlement Authorities. They raised a counter claim that the plaintiff has joint right, title, interest and possession along with them over the suit land and sought for necessary declaration. They also supported the stand taken by the plaintiff that the original sale deed was eaten by ‘white ants’. Page 5 of 17 7. Defendant no.5 raised on a counter claim that in the year 2001, Ac.0.78 decimals of land was acquired by the Government by paying compensation to the hal recorded tenants in L.A. Case No.30 of 2001. Despite such fact being within the knowledge of the plaintiff, neither he nor his family members advanced any claim. He further stated that after purchase of the suit land by him in the year 2001, he stepped into possession and mutated the land in his name. On 26.09.2011, he was appointed as a dealer to establish a petrol pump over the suit land, for which the plaintiff filed the suit against him. 8. The plaintiff filed a written statement clarifying that they had not received information regarding the land acquisition but as defendant nos.1 to 4 had received the compensation without informing him, they executed a written agreement with him. 9. On the rival pleadings, the trial Court framed the following Issues for determination :- “(I) If the suit is maintainable ? (II) If the plaintiff has got cause of action to bring the suit ? Page 6 of 17 (III) If the plaintiff has got right, title and interest over the suit land ? (IV) If the RSD No.1229/09 is valid one ? (V) If the plaintiff is entitled to recovery of possession of the suit land ? (VI) To what relief/reliefs the plaintiff is entitled to ? Issues on the counter claim filed by defendant no.5. (VII) Whether the counter claim preferred by defendant no.5 is maintainable and there is cause of action to bring the same ? (VIII) Whether the RSD vide No.1332/1968 executed by the original recorded tenants as per the Sabik R.O.R. is a sham transaction ? (IX) Whether the defendant no.5 has purchased the suit land legally and entitled to the relief claimed by him ? Issues on the counter claim filed by defendant nos.6 to 8 and 10. (X) Whether the plaintiff along with defendant nos.6 to 8 and 10 have joint right, title and interest over the suit land ? Page 7 of 17 (XI) Whether the defendant nos.6 to 10 are entitled to the relief claimed by them ?” 10. Taking up Issue Nos.III, IV & V for consideration at the outset, the trial Court analysed the oral and documentary evidence and firstly, held that the plaintiff had laid foundation for adducing secondary evidence with regard to the sale deed of the year 1968, as per Section 65(c) of the Indian Evidence Act. The plaintiff proved the certified copy of the said sale deed and examined the Clerk from the Office of the District Sub- Registrar, Nuapada, who proved the relevant entry in the T.I. Register. As such, the trial Court was of the view that the RSD No.1332 of 1968 was validly executed on 27.04.1968 in favour of the plaintiff. Therefore, further sale of the land by the legal heirs of the recorded tenants in favour of defendant no.5 cannot create any interest since title had already passed in favour of the plaintiff. On Issue Nos.VII, VIII & IX relating to the counter claim filed by defendant no.5, the trial Court held that he could not prove that the RSD No.1332 of 1968 is a fictitious document. The plea of adverse possession raised by Page 8 of 17 defendant no.5 was also not accepted. On Issue Nos.X & XI framed relating to the counter claim of defendant nos.6 to 8 and 10, the trial Court held that the plaintiff has no exclusive right, title and interest over the suit land and as such, held that he along with defendant no.6 to 8 and 10 have joint right, title and interest thereon. On such findings basically, the suit of the plaintiff was decreed. The counter claim raised by defendant nos.6 to 8 and 10 was allowed and the counter claim raised by defendant no.5 was dismissed. The joint right, title and interest of the plaintiff and defendant nos.6 to 10 as per Schedule-D were declared. RSD No.1229 of 2009 executed by defendant nos.1 to 4 in favour of defendant no.5 was declared null and void and the recording of the Schedule- E land in the name of defendant no.5 was also declared erroneous. The plaintiff was further held entitled to recovery of possession of Schedule-E land. 11. Defendant no.5 carried the matter in appeal. The First Appellate Court analysed the oral and documentary evidence in the light of the contentions Page 9 of 17 raised and held that the plaintiff having laid adequate foundation for adducing secondary evidence, the trial Court was right in admitting the certified copy of the sale deed of the year 1968 into evidence as also in relying on it. The First Appellate Court also found that the trial Court had correctly held that the title of the suit land having passed in favour of the plaintiff in 1968, the same subsequently sold in the year 2009 in favour of defendant
Legal Reasoning
no.5 was void. The contentions raised regarding the claim of adverse possession of defendant no.5 were also not accepted. On such findings, the appeal was dismissed. 12. Being further aggrieved, defendant no.5 has preferred the present Appeal, which was admitted on the following substantial question of law :- “Whether the lower courts below have erred in law by relying upon Ext.2 without there being evidence of precondition to adduce secondary evidence adduced ? 13. Mr. Mohanty, learned senior counsel argued that both the Courts below committed manifest error in accepting secondary evidence adduced by the plaintiff even though he had not laid adequate foundation for Page 10 of 17 introduction of the same as required by law. In this context, Mr. Mohanty argued that the admitted case of the plaintiff as per the plaint is that the sale deed of the year 1968 was eaten by ‘white ants’. It is not his case that the same was completely destroyed or not available. Under such circumstances, without producing the damaged sale deed before the Court and seeking permission to adduce secondary evidence on such count, he could not have been permitted to adduce secondary evidence. Mr. Mohanty further argued that when admittedly, the plaintiff did not claim any compensation granted for acquisition of a part of the land, it amounts to acquiescence of title of defendant no.5, which both the Courts below have not considered in the proper perspective. 14. Mr. Sahoo, learned counsel for the plaintiff- respondents, on the other hand, argued that the plaintiff categorically averred in the plaint that the original sale deed has been eaten by ‘white ants’. It was never his case that a part of the sale deed was available to be produced Page 11 of 17 before the Court. His case is, therefore, clearly covered under Section 65(c) of the Indian Evidence Act. On the question of acquiescence of the plaintiff by not claiming compensation for land acquisition, Mr. Sahoo argued that the same even if accepted on its face value, will not nullify the title of the plaintiff and non-existence thereof of defendant no.5 15. Having heard the rival contentions, it would be apposite to first consider the circumstances, under which secondary evidence is admissible. In this regard, the provision of Section 65 of the Indian Evidence Act, being relevant is re-produced below :- “65. Cases in which secondary evidence relating to documents may be given. - Secondary evidence may be given of the existence, condition or contents of a document in the following cases :- (a)When the original is shown or appears to be in the possession or power – of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or Page 12 of 17 of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b)When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c)When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d)When the original is of such a nature as not to be easily movable; (e)When the original is a public document within the meaning of section 74; (f)When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; (g)When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.” 16. In the instant case, the plaintiff has based his case on the provision under Clause-(c) quoted above. As Page 13 of 17 per the said provision, the condition necessary to be satisfied is that the original must have been destroyed or lost for which, the party relying upon it, is unable to produce the same. It is also the settled position of law that if primary evidence is not available because of its destruction or any other reason, then an explanation should be given to such effect so that secondary evidence can be accepted. It is also well settled that in absence of any explanation, secondary evidence cannot be accepted. Examining the facts and the case in the light of the above position of law, it is seen that according to the plaintiff, the original sale deed of the year 1968 was eaten by ‘white ants’. This is supported by defendant nos.6 to 8 and 10 in their written statement. It is common ground that the executants of the sale deed, namely, Charan Das and Bihari Das are dead. Mr. Mohanty, learned senior counsel has argued that the plea that the sale deed was eaten by ‘white ants’ does not mean that it no longer exists but some portions of it must be existing. This Court is unable to accept the above argument in absence of any evidence Page 14 of 17 being laid to such effect. It is thus a mere presumption. Moreover, when the plaintiff claims and is also supported by defendant nos.6 to 8 and 10, who being the members of same family are expected to be aware of the fact, there is no reason to draw a presumption that a portion or portions of the sale deed may still have remained intact while the other portions had been eaten by ‘white ants’. Even otherwise, both the Courts below were satisfied that the sale deed in question was in fact executed in favour of the plaintiff as claimed by relying on the evidence of the Clerk of the District Sub-Registrar, Nuapada, who produced and proved the relevant entry in the T.I. Register in respect of the document. Both the Courts below were thus satisfied as regards the validity of the said transaction executed in the year 1968 in favour of the plaintiff. From what has been narrated before, this Court finds no reason to differ from the findings of the Courts below so as to be persuaded to interfere. 17. The substantial question of law is answered accordingly. Page 15 of 17 18. Despite answering the substantial question of law as above, this Court also deems it proper to examine the other contention raised by the learned senior counsel, Mr. Mohanty for whatever it is worth. As already stated Mr. Mohanty argued that by not coming forward to claim land acquisition compensation, the plaintiff must be held to have acquiesced in conferment of title on defendant no.5 by the sale deed executed in his favour in the year 2009. It has also been argued that the plaintiff has not paid any rent not taken any step for mutation of his property in his favour. Such conduct, therefore, amounts to acquiescence. The above argument can only be considered to be rejected because it need not be over-emphasised that validity of the sale and the consequent transfer of title from the vendor to the vendee are the most vital factors. Non-payment of rent cannot divest the title-holder from his valid title though it may entail other penal/fiscal consequences. Not coming forward to claim compensation cannot, ipso facto, prove Page 16 of 17 absence of title when there is overwhelming proof of the same having been transferred to the plaintiff since 1968. 19. Thus on a conspectus of the analysis of facts and law and the discussion made thereon, this Court is of the view that both the Courts below have decided the matter correctly, and therefore, the impugned judgments do not warrant any interference whatsoever. 20. In the result, the appeal being devoid of merit is, therefore, dismissed but in the circumstances, without any cost. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 16th May, 2025/ Manoj Signature Not Verified Digitally Signed Signed by: MANOJ ROUT K Designation: AR-CUM-SENIOR SECRETARY Reason: Authentication Location: ORISSA HIGH COURT Date: 16-May-2025 14:47:24 Page 17 of 17