The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.323 of 2024 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] Gopal Chandra Swain ..…. Appellant -Versus- Parsuram Majhi & Others ...… Respondents Advocate(s) appeared in this case: For the Appellant :Mr. M.M. Basu, Advocate For Respondents : None CORAM: JUSTICE SASHIKANTA MISHRA O R D E R 3rd April, 2025 SASHIKANTA MISHRA, J.
Facts
This is a plaintiff’s appeal against a confirming judgment. Page 1 of 10 2. The suit of the plaintiff for declaration of right, title and interest along with defendant No.2 over the suit schedule land, irrespective of sale deed being RSD No.1951 of dated 02.04.1974 executed in favour of defendant No.1 was dismissed by the Trial Court and confirmed in appeal by the First Appellate Court. 3. For convenience, the parties are referred to as per their respective status in the Trial Court. 4. The plaintiff’s case, briefly stated is that the property originally belonged to his grandmother Indramani Bewa @ Indramani Swain. She sold the property for legal necessity to the plaintiff and defendant No.2 for consideration vide RSD No.1190 dated 06.03.1972. At that time, both the plaintiff and defendant No.2 were minors and as such they were represented by their mother guardian. Subsequently, they renovated the old house standing over the property and possessed the same. During settlement operation the ROR was prepared exclusively in the name of the defendant No.2. The Page 2 of 10 plaintiff therefore, filed a suit being TS No.1056 of 1991, in the Court of First Addl. Civil Judge (Sr. Division), Balasore, claiming himself to be owner of the suit property and for partition. The suit ended in compromise as per which, both became joint owners of the property. While possessing such property on 22.07.2012, defendant No.1, being their adjacent owner, attempted to damage the western side fence. On protest, he disclosed that he had purchased the property. 5. On further enquiry on 24.06.2012 from the Sub Registrar’s Office, the plaintiff came to know that the defendant No.1 had managed to obtain a sale deed bearing No.1951 dated 12.04.1974 from his grandmother. Since the sale deed was executed after execution of the sale deed in favour of the plaintiff and defendant No.2, no right, title and interest accrued thereby in favour of defendant No.1. In spite of the same, defendant No.1 managed to record Ac 0.14 dec. of land in his favour and Page 3 of 10 encroached upon the rest Ac 0.02 dec. out of Sabik Plot No.2898. Hence, the suit. 6. The Defendant No.1 contested the suit by filing the written statement. He questioned the maintainability of the suit on the ground of improper description of the suit property. It was claimed that the suit was grossly barred by limitation as the sale deed dated 02.04.1974 was not challenged by plaintiff within three years from the date the same came to his notice. The plaintiff had never raised his claim in the earlier suit filed by him for which the suit is also hit by the principle of constructive res- judicata. That apart, the plaintiff and his brother basing on RSD dated 06.03.1972 initiated Objection Case No.3905 of 1981 before Settlement Authority, defendant No.1 on the basis of sale deed dated 02.04.1974 filed Objection Case No.1110 of 1981 and another objection case bearing No.156 of 1981 was also initiated. All the three cases were heard together by the Settlement Officer in the presence of all parties and accordingly MS Plot Page 4 of 10 No.43/2599 was recorded in the name of defendant No.1. This fact was known to the plaintiff in 1988 but he never challenged the ROR within the period of limitation. Defendant No.1 further claims to have purchased the suit property from Indramani Bewa vide RSD dated 02.04.1974 for consideration of Rs.1400/- with delivery of possession. It is also claimed that the plaintiff and defendant No.2 through their mother guardian alienated Ac 0.04 dec. of land from suit Plot No.2898 in favour of Dayanidhi Bal through RSD dated 06.05.1976 with delivery of possession, which has since been recorded in his name. 7. Basing on the rival pleadings, the Trial Court framed the following issues for determination: (i) Whether the plaintiff has any cause of action to bring the suit? (ii) Whether the suit is maintainable? (iii) Whether the plaintiff and defendant No.2 have joint right, title and interest over the suit land? Page 5 of 10 (iv) Whether the suit is bad for indefinite description of suit land? (v) Whether the plaintiff is entitled for any other reliefs? 8. After considering the oral and documentary evidence the Trial Court held under issue Nos.3 and 4 that the plaintiff had failed to establish that he and defendant No.2 have joint right, title and interest over the suit land. On issue nos. 1 & 2, the Trial Court, considering the fact that there is discrepancy in the evidence relating to the date of his knowledge regarding execution of the sale deed in favour of the defendant No.1, held that the plaintiff had no valid cause of action. On such findings basically, the suit was dismissed. 9. The plaintiff carried the matter in appeal. The First Appellate Court after going through the findings of the Trial Court and on appreciation of the oral and documentary evidence, refused to interfere with the judgment of the Trial Court. The said order is impugned in the present appeal. Page 6 of 10 10.
Legal Reasoning
It is settled law that concurrent findings of fact are not to be interfered with as a matter of course by the Second Appellate Court. Such interference is called for only when the findings are perverse, against the weight of evidence on record or such as no prudent person would arrive at. Reference in this regard is made to the Supreme Court in the case of Gurvachan Kaur v. Salikram, (2010) 15 SCC 530, where it was held as follows: Page 9 of 10 “It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.” 15. For the foregoing reasons therefore, this Court finds no substantial question of law to be involved for adjudication in the Second Appeal so as to be persuaded
Arguments
Heard Mr. M.M. Basu, learned counsel for the appellant on the question of admission of the appeal. 11. Mr. Basu would argue that both the Courts below have erred in law in holding that the suit of the plaintiff is barred by limitation without taking note of the date on which the cause of action first accrued i.e., on 22.07.2012. It was the specific case of the plaintiff that on that date, defendant No.1 attempted to damage the western side fence of his property. According to Mr. Basu, the period of limitation ought to have been calculated from that date. In this context, Mr. Basu has relied upon the judgment of the Supreme Court in the case of Jai Ram V. Som Prakash & Anr. Etc. (2025 INSC 227) Mr. Basu further submits that the plaintiff had properly and adequately described the suit property in the plaint but both the Courts below erroneously held the same to have been improperly described, which is a perverse finding. Page 7 of 10 12. This Court has carefully perused the impugned judgment and given its anxious consideration to the contentions advanced by the plaintiff-appellant. There is no dispute that the sale deed sought to be ignored was executed way back in the year 1974 i.e., RSD No.1951 dated 12.04.1974. It is otherwise borne out from the evidence on record that there were at least three objection cases filed before the Settlement Officer including one by the plaintiff himself in the year 1981. The ROR was finally published in favour of the defendant No.1 in the year 1988. The plaintiff took no steps for correction of the ROR either before the Settlement Authorities or by filing a suit within the prescribed period of three years. The First Appellate Court has taken note of such omission of the plaintiff to hold that the relief claimed by the plaintiff vis- (cid:224)-vis the sale deed dated 02.04.1974 is hit under Article 59 of the Limitation Act as well as Section 42 of the Odisha Survey and Settlement Act. The evidence on record clearly shows the plaintiff to have been aware of the existence of the sale deed dated 02.07.1974 as well as Page 8 of 10 the recording of the suit property in the name of defendant No.1 at least in 1988. The suit is therefore, grossly barred by limitation. Having held so, it is not necessary to examine the further findings rendered by both the Courts below. 13. Even then, perusal of the impugned judgment does reveal that both the Courts below have concurrently found the plaintiff of not being entitled to the relief claimed. It has not been suggested that such finding is perverse, against the weight of evidence on record or otherwise such that no prudent person can arrive at. 14.
Decision
to admit the same. Resultantly, the appeal is dismissed. ………………………. Sashikanta Mishra Orissa High Court, Cuttack. The 3rd April, 2025/P. Ghadai, Jr. Steno Judge Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 09-Apr-2025 18:44:14 Page 10 of 10