Civil Suit No. 386 of 2010 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.480 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the common judgment dated 17th September, 2016 passed by the learned District Judge, Baleswar, in R.F.A. Nos.04 & 05 of 2015 confirming the judgment & decree dated 4th December, 2014 & 18th December, 2014 respectively passed by the learned Civil Judge, Senior Division, Baleswar in Civil Suit No.386 of 2010. ---- Deepak Kumar Panigrahi & Others -versus- …. Appellants Laxmidhar Murmu & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.Laxman Pradhan, D.P. Dash, R.K. Mishra & P.K. Mallick (Advocates) For Respondents -
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing : 11.03.2024 : Date of Judgment:12.03.2024 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the common judgment and decree passed by the learned District Judge, Baleswar, in R.F.A. Nos.04 & 05 of 2015. RSA No.480 of 2016 Page 1 of 8 The Appellants, as the Plaintiffs, had filed the suit, i.e., Civil Suit No.386 of 2010 in the Court of the learned Civil Judge, Senior Division, Baleswar for declaration of their right, title and interest over the suit land, further seeking permanent injunction against the Respondents arraigned as the Defendants from interfering in their peaceful possession over the suit land. The suit, having been dismissed, they had carried the Appeal under section 96 of the Code, which too had been dismissed. Hence, the present Second Appeal is at the instance of the Appellants (Plaintiffs), who have remained unsuccessful before the Trial court as well as the First Appellate Court. 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 land measuring Ac.0.04 decimals appertaining to M.s. Plot No.292/935 under M.S. Khata No.199 corresponding to Mutation Plot No.292/935 in Mutation Khata No.271/25, which corresponds to C.S. Plot No.230 under C.S. Khata No.196 in Mouza-Bampada was originally owned by one Mohan Charan Das and stood recorded in his name. He, in order to meet his legal necessities, had sold the suit land to one Sukamai Majhi by registered sale deed dated 16.03.1973. Sukumai, having RSA No.480 of 2016 Page 2 of 8 purchased the property, was delivered with the possession of the same. When Sukumai was in possession, it is stated that she sold the land to one Gundura Majhi by a registered sale deed dated 16.08.1981. Said Gundura, having purchased the property, got the possession over the same from Sukumai and remained in possession of the same all through. It is next stated that said Gundura, while in possession of the suit land, sold the same to the Plaintiffs by registered sale deed dated 28.10.1986 and delivered possession of the same to the father of the Plaintiffs, who was then their guardian as the Plaintiffs were minor. It is also stated that the suit land, after said purchase, was mutated in the name of the Plaintiffs. The Defendants, having no manner of right, title, interest and possession over the suit land, when on 18.04.2010 interfered with the possession of the same by the Plaintiffs, the suit has come to be filed. 4. The Defendants, in fling the written statement, also lodged the counter claim. It is stated that Sukumai is their predecessor- in-interest. They assert that Sukumai had purchased the property in the suit from Mohan by registered sale deed dated 16.03.1971 and she after purchase, had constructed a house over the suit land where she, with her family members including the Defendants resided. After the death of Sukumai, the Defendants have been possessing said lands. They state that at no point of RSA No.480 of 2016 Page 3 of 8 time, Sukumai had executed any sale deed in favour of Gundura. It is also stated that said sale deed is a created one and had been obtained by way of impersonation. So, Gundura, according to them, had no right, title, interest and possession over the suit land and, therefore, by virtue of the sale deed purported to have been executed by Gundura, the Plaintiffs are stated to have not been acquired right, title and interest in respect of the suit land. The Defendants claim that for the first time, after receiving the summons in the suit when they went through the plaint averments, are coming to know about the execution of the sale deed by Sukumai in favour of Gundura and then Gundura in favour of the Plaintiffs They have lodged a counter claim for declaring their right, title and interest over the suit land. 5. The Plaintiffs, in response to the counter claim of the Defendants, have stated that Gundura, after purchasing the suit land, were in possession of the same and he, having obtained permission under section 22 of the Orissa Land Reforms Act, 1960 (for short, ‘the O.L.R. Act’), had alienated the property in their favour and that they, having been delivered with the possession of the suit property, have been in possession of the same as its absolute right, title and interest holder. RSA No.480 of 2016 Page 4 of 8 6. On the above rival pleadings, the Trial Court has framed ten issues. First of all, coming to answer the issues as to the Plaintiffs purchase of the suit land from Gundura by registered sale deed dated 28.10.1986 and Sukumai’s sale of the suit land to Gundura by registered sale deed dated 16.08.1981 and thus, the claim of the Plaintiffs to be having the right, title, interest and possession over the same; upon examination of the evidence both oral and document and their evaluation, the answers have been returned against the Plaintiffs holding that they have derived no right, title and interest over the suit land and are not in possession of the same. Having said so, the Trial Court also found the Defendants to be the rightful owner in possession of the suit land as the successors of Sukumai, who had never parted with the suit land in favour of anybody. The above answer have practically led to the dismissal of the suit. 7. The Plaintiffs, being non-suited, had carried the first Appeal. The First Appellate Court, on independent appreciation of the evidence at its level, has confirmed the said finding of the Trial Court, which has resulted the dismissal of the First Appeal. 8. Mr.L. Pradhan, learned counsel for the Appellants submitted that the registered sale dated 16.08.1981 executed by Sukumai in favour of Gundura and the subsequent registered Page 5 of 8 RSA No.480 of 2016 sale deed dated 28.10.1986, having not been challenged by the Defendants at any point of time when even the Plaintiffs had mutated the suit land in their favour by virtue of the registered sale deed dated 28.10.1986 standing in their favour; keeping in view the age of the document, the Trial Court as well as the First Appellate Court ought to have placed the burden of proof upon the Defendants to establish that the said sale deeds had either not at all been executed nor duly executed by the respective vendors as the presumption under section 90 of the Evidence Act stands attracted. It was submitted that the finding of the first Appellate Court that the Plaintiffs, having failed to prove that there was any person named Gundura Majhi in the locality, their claim of right, title and interest over the suit land basing upon the sale deed executed by Gundura is unacceptable is not correct. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 10. The Plaintiffs’ claim their right, title and interest over the suit property by virtue of their so-called purchase from Gundura. It is stated that Gundura, under registered sale deed dated 28.10.19786 (Ext.3), had sold the suit land to the Plaintiffs through their father guardian. It is stated that Gundura had purchased the RSA No.480 of 2016 Page 6 of 8 suit property from Sukumai by registered sale deed dated 16.08.1981 (Ext.2). There is no dispute is not on the score that Sukumai was the owner in possession of the suit land having purchased the same from Mohan by registered sale deed dated 16.03.1973 (Ext.1). The Defendants have raised a question that no such person in the name of Gundura Majhi was/is there in the locality. When the Plaintiffs claim that they have purchased the suit land from Gundura, who had obtained the permission from the competent Authority under section 22 of the O.L.R. Act, on the face of the oral evidence available as regards the non- existence of any such person called Gundura in the locality, the record of that permission case, i.e., O.L.R. Case No.463 of 1986, which would have shown much light on the subject, has neither been called upon nor proved. Gundura, having purchased the suit land, the same were not recorded in his name in the M.S. record of right nor his possession was found to be noted as against the plots by virtue of the sale deed, his name being executed by Sukumai, which the Plaintiffs say to be in his name. In that view of the matter, the submission that the presumption as to the execution of said sale deeds would stand drawn at the threshold has no leg to stand. The Trial Court as well as the First Appellate Court, having made thorough scrutiny of the evidence on record when have concurrently found the Plaintiffs to have failed to establish their Page 7 of 8 RSA No.480 of 2016 claim/case over the suit property and it having been said that the Plaintiffs are not in possession of the suit property, rather it is in possession of the Defendants, the suit of the Plaintiffs is found to be have been rightly dismissed. 11. In the wake of aforesaid discussion, the submission of the learned counsel for the Appellants fails and this Court finds that there arises no such substantial question of law for being answered in this Appeal meriting its admission. 12. Resultantly, the Appeal stands dismissed. No order as to cost. (D. Dash), Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 03-Apr-2024 13:11:37 RSA No.480 of 2016 Page 8 of 8