The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 495 of 2018 [In the matter of an appeal under Order 41 Rule 1 read with Section 100 of the Code of Civil Procedure, 1908. --------------- AFR Dr. Krushna Singha Padhy & Anr. ...… Appellants -Versus- Smt. Joshnarani Patnaik & Anr. ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ For Appellants : Mr. Dwarika Prasad Mohanty, Advocate For Respondents: M/s. Shakti Prasad Das, P.K. Singh & Tej Kumar, Advocates _______________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 23rd August, 2024 SASHIKANTA MISHRA, J. The defendants have filed the present appeal against the reversing judgment passed by learned District Judge, Ganjam, Berhampur on 30.08.2018 followed by decree in RFA No. 104 of 2010, whereby the judgment dated 16.09.2010 followed by decree passed by Page 1 of 17 leaned Civil Judge (Senior Division), Berhampur in Title Suit No. 56 of 1997 was set aside. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3.
Facts
The plaintiffs filed the suit for declaration of right, title and interest over the suit property, recovery of possession and mandatory injunction in the form of removal of alleged unauthorised construction over the suit property with incidental reliefs. 4. The case of the plaintiffs, briefly stated, is that the suit property was purchased by them in the year 1992 from Janaki Pasupalak and Rama Chandra Pasupalak each under a different sale deed. While plaintiff No.1 purchased 30 feet x 60 feet out of plot Nos. 610/2362 and 610/2363 under Khata No.734 and 282 respectively vide RSD No. 4643 dated 27.10.1992. Plaintiff No.2 being the brother of Plaintiff No.1 purchased 30 feet x 60 feet including 15 feet x 60 feet forming part of plot No. 610/2363 from Janaki Pasupalak vide RSD No. 4642 dated 27.10.1992. Further, plaintiff No.2 sold 15 feet x 60 feet of such property to plaintiff No.1 vide RSD No. 4496 of Page 2 of 17 2000 and delivered possession. At that time he came to know that said portion of his purchased property measuring 15 feet x 60 feet was wrongly recorded in the name of one Amita Mohapatra in Plot No. 2363/2864 under Khata No. 1030/622. Nevertheless after purchase of land measuring 15 feet x 60 feet from plaintiff No.2, plaintiff No.1 and her husband possessed the entire suit land measuring 45 feet x 60 feet by fencing the same. It is alleged that on 07.05.1995 they were forcibly dispossessed by both the defendants. Defendants thereafter raised boundary wall and plinth points on the suit land by removing the fence put by plaintiff No.1 and that they have been raising false claim over the suit property on the basis of manipulated records. It is stated that the vendors of the plaintiff, Janaki Pasupalak and Ramachandra Pasupalak had purchased lands to the extent of 45 feet x 75 feet and 10 feet x 75 feet each vide RSD No. 140 dated 19.01.16972 and RSD No. 142 dated 19.0.1978 respectively from the original owner Krushna Panda which they possessed till 27.10.1992 when they sold the same to the plaintiffs. It is alleged that after filing of the suit, the plaintiffs came to Page 3 of 17 know that Tahasildar, Berhampur mutated the suit lands vide order dated 30.03.1992 in favour of defendant No.2 and opened a new Khata No. 1036/87, which was challenged by the plaintiffs. 5. The case of the defendants is that the suit land originally belonged to one Krushna Chandra Panda, who sold the same to one Sunita Padhi through RSD No. 495/1985. Said Sunita Padhi sold the same to Defendant No.2 vide RSD No. 888/1987. Defendant No.2 applied for mutation, which was allowed in his favour and the land was recorded in his name in a separate Khata. The defendants dispute the description of the suit land as per the plaint schedule on the ground that the boundaries stated therein are not correct. Their specific case is that Rama Chandra Pasupalak and Janaki Pasupalak, vendors of the plaintiffs had no right, title or possession to alienate the land in favour of the plaintiffs and the sale deeds relied upon by the plaintiffs are only paper transactions. Rama Chandra Pasupalak did not have any balance land towards north of the plaintiff No.1‟s land. Similarly, Janaki Pasupalak had no right or title to sell any land in favour of Page 4 of 17 plaintiff No.2. By practicing fraud and misrepresentation she had recorded more land in her favour than what she had purchased. One Amita Mohapatra had a piece of land which she had purchased from Krushna Panda in the year 1985, which she also mutated in her name. So, Janaki Pasupalak has no land in the row, wherein the suit land is situated. During 1993, defendant No.1 constructed a boundary wall around the suit property, dug a well and also constructed a room measuring 15 feet x 13 feet and rented out the same after getting the plan approved from Berhampur Development Authority. It is their further specific case that the suit property is not a part of the property purchased by Janaki Pasupalak and Rama Chandra Pasupalak from Krushna Chandra Panda vide RSD Nos. 140/1978 and 142/1978 dated 19.01.1978. The original owner, Krushna Chandra Panda had made two rows of plots and sold them to several persons including Janaki Pasupalak and Rama Chandra Pasupalak. In 1980 he made a 3rd row, which he sold to several persons including Amita Mohapatra, the vendor of defendant No.2. The suit land is one of such plots out of the 3rd row of plots Page 5 of 17 which Krushna Chandra Panda had sold in favour of Sunita Padhi, who ultimately sold the same to defendant No.2 vide RSD No. 888/1987. The Tahasildar in Mutation Case No. 1036/87 corrected the final ROR by assigning separate Khata numbers and Plot numbers after deleting the area from the ROR of Janaki Pasupalak and Rama Chandra Pasupalak. In course of enquiry in the mutation case, the Tahasildar held that defendant No.2 is in physical possession of the suit land and the lands covered under RSD No. 140/1978 and 142/1978 do not cover the suit land. Janaki Pasupalak purchased an area of 45 feet x 75 feet but in the final ROR, the area was shown as Ac.0.128 dec. Similarly, although Rama Chandra Pasupalak purchased Ac.0.075 dec., the area shown in the final ROR is Ac.0.140 dec. Therefore, the Tahasildar rightly disbelieved the plea of Rama Chandra Pasupalak and Janaki Pasupalak. The said order not having been overturned in appeal has therefore, become final. In the second row, total extent of 90 feet x 75 feet land was sold away by Rama Chandra Pasupalak and Janaki Pasupalak Page 6 of 17 to five purchasers. As such, there was no further land available with them to sell to the plaintiffs as claimed. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination. “1) Whether the plaintiff has any manner of right, title and interest over the suit land? 2) Whether there is any cause of action for the suit? 3) Whether the plaintiff is entitled to vacant possession of the suit land? 4) To what relief, the plaintiff is entitled to? 5) Whether the plaintiffs are aware of the mutation case about the time of their purchase of the suit land? 6) Whether the Court fee paid is correct? 7. Whether the suit is under valued? 8. Whether the suit is bad for mis-joinder of parties?” 7. After considering the oral and documentary evidence in detail the trial Court decided Issue No.1 against the plaintiffs by coming to a definite conclusion that the vendors of the plaintiffs, namely, Rama Chandra Pasupalak and Janaki Pasupalak had sold their entire purchased property to five purchasers thereby exhausting their total purchased properties. As such, the sales to the plaintiffs are void. On such findings on the principal issue, the remaining issues were also decided against the plaintiffs and the suit was dismissed. Page 7 of 17 8. The plaintiffs carried the matter in appeal to the district Court being RFA No. 04 of 2010. Learned District Judge, vide judgment passed on 27.11.2013 followed by decree found no reason to interfere with the finding of the trial Court and thereby confirmed its judgment. The plaintiffs preferred Second Appeal before this Court being RSA No. 91 of 2014. This Court, after analysing the oral and documentary evidence on record held that the First Appellate Court should have allowed the petition filed by the plaintiffs under Order 26 Rule 9 of CPC by deputing a Survey Knowing Commissioner to the suit property. This Court specifically held in paragraph-18 of the judgment as follows: It is the plea of the defendants that these 18. Janaki Pasupalak and Ram Chandra Pasupalak have no land to alienate to the present appellants because they have disposed of all the lands to five purchasers, namely, Tarini Charan Panigrahi on 1.8.1992, Kalicharan Padhi on 4.8.1992, Manohar Padhi on 25.7.1992, Kailash Chandra Padhi on 24.7.1992 and Narasingha Padhi on 24.7.1992 but have not pleaded how much land has been sold to each of the persons by Janaki Pasupalak and Ram Chandra Pasupalak. Both the Courts below have only relied on the statement of P.W.7 while coming to a conclusion that P.W.7 has suppressed to state the name of all the purchasers. After going through the evidence of P.W.7 at para-13 it only appears in the following manner: “It is a fact that the lands of my mother and myself (totaling 90 feet x 75 feet) has been sold away. I cannot say if they have been sold to five persons-Tarini Panigrahi, Kali Charan Padhi, Page 8 of 17 Manohar Padhi, Kailash Ch. Padhi and Narasingha Padhi. To my knowledge, Talrini, Mahapatra and Kali are in possession of the said lands. It is not a fact that Kailash and Narasingha are in possession of any portion of the said plots”. So, P.W.7 has clearly denied about the sale of land to Kailash and Narasingh. When there is a denial fact being suggested by defendants, the question of suppression of facts cannot be presumed by the Courts below. Apart from this, P.W.8 is the father of P.W.7 and P.W. 8 has actually purchased land in the name of P.W.7 while P.W.7 was minor. In such context, evidence of P.W.8 is more important but the Courts below have not at all discussed the evidence of P.W.8. P.W.8 has got clear knowledge about acquiring of land and the real location of the land. When the disputed portion is 15 feet x 60 feet being part and parcel of the suit land, the findings of the learned Courts below that the Pasupalaks have no land to sell to the Plaintiffs is a finding based on no facts. On the other hand, the finding of the learned Courts below without discussing the documents and the discussion made herein above about appreciation of evidence of P.W.7 on wrong premises do not allow the plea of Respondents to be proved. Since the concurrent findings of the learned Courts below on this substantial question of law do not convey the disposal of the Issue No.1, the Court is of the view that same finding on Issue No.1 is to be set aside.” On such finding, this Court remitted the matter to the First Appellate Court with direction to depute a Survey Knowing Commissioner with liberty to the parties to argue on his report. 9. Being thus remitted to the First Appellate Court, a Survey Knowing Commissioner was deputed to suit land, who submitted a report. The First Appellate Court thereafter heard the First Appeal afresh and held that the Page 9 of 17 suit land has been clearly identified in the report. Having held so, the First Appellate Court held that the vendor of the defendants, Sunita Padhi had no valid title since at the time of her purchase in 1985, her vendor had no valid title and right. It was thus held that the plaintiffs had acquired their right, title and interest over the suit land on the basis of the sale deeds in question. Basically on such findings, the First Appellate Court reversed the judgment of the trial Court and decreed the suit by declaring the title of the plaintiff No.1 over the suit land directing the defendants to deliver vacant possession. 10. Being aggrieved, the defendants have filed the present Second Appeal, which had been admitted on the following substantial questions of law. "(B) Whether the learned lower Appellate Court is justified in ignoring the boundaries, which are mentioned in the sale deeds of the Plaintiff as well as the Defendants vis-(cid:224)-vis the report of the Survey Knowing Commissioner? (G) Whether acceptance of the report of the Survey Knowing Commissioner, which is silent about the actual purchased area of both the parties be accepted as final by the Appellate Court in the face of the evidence on record? Page 10 of 17 11.
Legal Reasoning
the dispute. This is the reason why this Court in the earlier Second Appeal held that deputing a Survey Knowing Page 14 of 17 Commissioner to the suit land is necessary. The report of the Commissioner marked Ext.X shows that the Commissioner has described the disputed property as “suit house” and given its boundaries. After fixing four points for measurement i.e., X Y Z and K, the Commissioner mentions in his report as follows: “Basing on the facts and circumstance, I measure the suit house which was identified by the parties. (Emphasis added) xxxxx” According to Mr. Tripathy, reference to the suit house is not to be treated literally but must be construed as reference to the suit land, since from the very inception of the suit the plaintiffs have alleged that the defendants encroached upon their land and constructed the house. Nevertheless, he has given the dimensions of the plots under each of the paragraphs. After going through the report of the Commissioner and particularly the sketch map attached to it, this Court finds that both the plots namely 2362 and 2363 as such have not been measured but the house standing thereon have been marked as A B C D has been measured of which A B C‟ and D‟ appertains to plot No. 2363 while C D D‟ C‟ appertains to plot Nos. 2362. This Court fails to comprehend as to how the suit Page 15 of 17 land can be identified. Merely by mentioning the plot numbers on which the suit house is standing cannot ipso facto lead to correct identification of the property for determining the lis. The First Appellate Court has not specified as to how the property is identified save and except mentioning that it has been identified. It is well settled that where there is a dispute with regard to the description of the property, efforts should be made to correctly identify the property in dispute so that an enforceable decree can be passed. Moreover, this Court finds that undisputedly, prior to the sale of the property to the plaintiffs, the Pasupalaks had sold lands to five persons. That apart, the allegation that more land was sold than what was purchased by the Pasupalaks being recorded in their names was also not taken into consideration by the First Appellate Court. All these cumulatively persuade this Court to hold that the first appeal was not decided correctly. Further, the suit property needs exact identification before delving upon the rival contentions of the parties. This is therefore, a case where there is no other option than to remit the matter to the Page 16 of 17 First Appellate Court yet again for fresh disposal after deputing a Survey Knowing Commissioner to the suit property as also by specifically dealing with each of the findings rendered by the trial Court on the issues famed by it. The Commissioner should be directed to correctly identify the suit property. 15. For the foregoing reasons therefore, the Second Appeal is allowed, the impugned judgment passed by the First Appellate Court is set aside. The matter is remanded to the First Appellate Court to decide the appeal afresh by again deputing a Survey Knowing Commissioner to the suit property to identify and measure the same properly and to submit report accordingly. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 23rd August, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Aug-2024 17:07:45 Page 17 of 17
Arguments
Heard Mr. D.P. Mohanty, learned counsel appearing for the appellants and Mr. S.P. Das, learned counsel appearing for the respondents. 12. Mr. Mohanty assails the judgment of the First Appellate Court basically on the ground that the finding that the suit land was properly identified, is erroneous on the face of it, inasmuch as the Commissioner simply identified and measured a house standing over two plots without measuring the dimensions of the plots. It is further argued by Mr. Mohanty that when the existence of the property is not in dispute, the question required to be determined is whether the property purchased by the plaintiffs is the same as that of the property situate at the spot. The commissioner has only given the side boundaries of the property inspected by him, which does not match with the property purchased by the plaintiffs. The First Appellate Court did not consider the report of the Commissioner in proper perspective and somewhat mechanically held that the suit property was properly identified. According to Mr. Mohanty therefore, the dispute remained as it is. Page 11 of 17 13. Mr. Das, on the other hand would argue that the case of the plaintiffs is that the defendants have encroached upon their land and constructed a house for which the Commissioner referred to the same as suit house. However, he has subsequently mentioned the suit land and given the dimensions, which shows that the land purchased by the plaintiffs measures 60 feet x 45 feet. Further, the plot numbers have also been mentioned by the Commissioner which completely matches with the plot numbers mentioned in the sale deeds of the defendants. Moreover, the defendants never objected to the report of the Commissioner before the First Appellate Court and therefore, they cannot be permitted to do so at this stage. 14. Though much has been pleaded and argued by both the parties, the crux of the dispute according to the plaintiffs is that the defendants have encroached upon their purchased land, dispossessed them and constructed a house over it. Further, they also managed to mutate the land in their favour. According to the defendants, the land claimed to have been purchased by the plaintiffs was not available to be sold to them by their vendors. It is borne Page 12 of 17 out from the evidence on record that one Swarnamayee Panigrahi was the original owner of the suit property. Krushna Chandra Panda purchased the same from her vide RSD No. 4882 dated 12.08.1961 (Ext.12). Since settlement operation had not yet started in the area, the land was described in cubits as 150 „hata‟ x 150 „hata‟. Krushna Chandra sold the property to Janaki Pasupalak vide RSD No. 140 dated 20.01.1978 (Ext.14) to the extent of 10 feet 6 inches x 75 feet in the first row and 45 feet x 7 feet on the second row. On the same day, Krushna Chandra vide RSD No. 142 dated 20.01.1978 (Ext.9) sold the property in two rows to Rama Chandra Pasupalak being 10 feet 6 inches x 75 feet and 45 feet x 75 feet. The purchase in the second row is in dispute which in decimals comes to Ac.0.77 dec. and 5 links. Upon conclusion of settlement operation in 1980, Janaki Pasupalak was granted Khata No. 282 (Ext.15) and the disputed plot No. as 610/2363 recording an area of Ac.0.128 dec. Thus, despite her purchased area being Ac. 0.77 dec. 5 links, the recorded area was in excess of Ac.0.50 dec. Similarly, Rama Chandra Pasupalak was granted Khata No. 734 Page 13 of 17 (Ext.9/A) with Plot No. 610/2362 for an area of Ac.0.1040 dec. even though his purchased area is Ac.0.77 dec. 5 links. The entire purchased land measuring 90 feet x 75 feet were sold to 5 purchasers in 1992. Thereafter, Pasupalaks sold the lands in favour of the plaintiffs vide RSDs marked Ext.1 and 10. According to the defendants, Krushna Chandra Panda, after selling the aforesaid land to the Pasupalaks in the year 1978, sold 45 feet x 70 feet to Sunita Padhi vide RSD No. 495 dated 06.02.1985 (Ext.-B), which she sold to defendant No.2 vide RSD No. 888 dated 04.03.1987 (Ext.A). This property was mutated in the name of defendant No.2 as per order dated 30.03.1993 passed in Misc. Case No. 1036/87 (Ext.C). The trial Court found that excess land was recorded than the purchased land in the ROR published in the name of Rama Chandra Pasupalak and Janaki Pasupalak (Ext.9 and Ext.15). Such being the case, the sale of land in excess of their purchased land to the plaintiffs was held to be void. This is where the exact identity of the plots needs to be ascertained so as to resolve