The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.350 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 29.04.2023 & 12.05.2023 passed by the learned 1st Additional District Judge, Khordha, in R.F.A. No.39 of 2019, confirming the judgment and decree dated 06.09.2019 & 13.09.2019 respectively passed by the learned Nyayadhikari, Gram Nyayalaya, Tangi, in C.S. No.01 of 2019. ---- Arun Sardar …. Appellant -versus- Sameer Ray …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. Soumya Mishra Advocates For Respondent - ------- CORAM: MR. JUSTICE D.DASH DATE OF HEARING:22.01.2024 :: DATE OF JUDGMENT:15.02.2024 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged the judgment and decree dated 29.04.2023 & 12.05.2023 respectively R.S.A. No.350 of 2023 Page 1 of 7 {{ 2 }} passed by the learned 1st Additional District Judge, Khordha, in R.F.A. No.39 of 2019. The Appellant as the Plaintiff, had filed Civil Suit No.01 of 2019 in the Court of learned Nyayadhikari, Gram Nyayalaya being the Civil Judge (Junior Division), Tangi. The suit is for declaration of right, title and interest over the suit land, also seeking the relief of permanent injunction. The suit having been dismissed, the Appellant as the unsuccessful Plaintiff had carried an Appeal under section 96 of the Code, which too has been dismissed. Hence this Second Appeal is at the instance of the Appellant, who has remained as the unsuccessful Plaintiff in both the Courts below. 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. Plaintiff’s case is that the suit land stood recorded in the name of the State as Anabadi land. After the partition that our country witnessed, many persons of East Pakistan came as refugees and settled in different parts of the area where the suit land situates. The Rehabilitation Department of the State settled them by leasing out some land for being used by them for homestead purpose. R.S.A. No.350 of 2023 Page 2 of 7 {{ 3 }} It is stated that the suit land measuring Ac 0.051 decimal was settled in the name of one Nitai Biswas way back in the year 1952. Nitai had constructed a house over the suit land and was residing there. In the current settlement, the suit land was converted to homestead land and has been recorded in the name of said Nitai as the possessor noting as such in the remark column of the record of right. Nitai died leaving behind his daughter Kamala as his sole heir and successor and she continued to possess the suit land. It is further stated that the land under Plot No.455 which situates adjoining the suit plots under Plot No.456 was settled in the name of the father of the Plaintiff. The Plaintiff is Nitai’s sister’s son. Plaintiff claims that after the death of his father, he has been residing over the land under Plot No.455. Kamala died issue less and she alone was residing over the suit plot. It is stated that out of love and affection, Kamala had gifted all her property including the suit plot in favour of the Plaintiff and after the death of Kamala, the Plaintiff claims to be in possession of the suit plot. It is stated that the Defendant is a stranger to the suit property and he has got his land under Plot No.455/1216 which too adjoins to the suit land. Thus having no right, title and interest over the property in suit when having an eye over the same, after the death of Kamala, on 06.01.2019 the Defendant attempted to demolish the old house R.S.A. No.350 of 2023 Page 3 of 7 {{ 4 }} standing over the suit land, the Plaintiff first of all initiated a proceeding under section 144 of Cr.P.C. and thereafter, filed the suit for declaration of his right, title and interest over the suit property with further prayer of permanent injunction for restraining the Defendant from entering upon the suit property. 4. 5. The Defendant was set ex parte. The Trial Court examining the evidence both oral and documentary let in by the Plaintiff in support of his case/claim and the prayer as have been advanced in the backdrop of his pleadings and referring to the legal provisions holding the field has finally held that the Plaintiff has no interest over the suit land and the suit is liable to be dismissed for non-joinder of the necessary party i.e. the State. 6. The First Appellate Court being moved by the unsuccessful Plaintiff has held as under:- “In the conclusion, I am of the view that the learned trial Court has rightly noted the above discussed facts and reached at the conclusion that neither Nitai Biswas nor his so called daughter Kamala Biswas had acquired any right, title and interest over the suit land and, accordingly, the Plaintiff has not acquired any right, title and interest over the suit land even the possession through the so called unregistered gift deed and, accordingly, negatived the claims if the plaintiff- appellant. No illegality or impropriety found in the judgment R.S.A. No.350 of 2023 Page 4 of 7 {{ 5 }} of the Court below which needs interference. Accordingly, the judgment and decree of the Court below is confirmed.” 7. Mr. Soumya Mishra, learned counsel for the Appellant (Plaintiff) submitted that even though in the suit, the Plaintiff had prayer for declaration of his right, title, interest over the suit land and the Courts have found that the Plaintiff is not entitled to the said relief yet by virtue of he being in possession of the suit land when the Defendant has also no right, title, interest and as such the right to possess the suit land, the Courts below ought to have decreed the suit by granting the relief of permanent injunction as against the Defendant. He therefore, urged for admission of this Appeal to answer above as the substantial question of law. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint averments. The written note of submission with the decisions cited in support have been perused. 9. Plaintiff in the plaint has stated that Nitai Biswas having expired leaving behind his daughter Kamal as the sole successor, she (Kamala) being sole heir and successor, was possessing the suit land by occupying the house standing over there. It is next stated that on account of her old age and failing health, Plaintiff was taking care of Kamala. Therefore, out of love and affection, Kamala orally gifted all R.S.A. No.350 of 2023 Page 5 of 7 {{ 6 }} her property including the suit property to the Plaintiff by an unregistered deed of gift. As per the case of the Plaintiff, Kamala died sometime in the year 2009. It is next stated that even though the Plaintiff has not acquired any title over the suit property, but he has better possessory title over the suit land than the Defendant. The Plaintiff first of all claims to have acquired the title over the suit land through that unregistered deed of gift said to have been executed by Kamala vide Ext.3. 10. Gift of immovable property notwithstanding the valuation of the immovable property is not permissible by an unregistered document nor oral gift of immovable property is as such recognizable in the eye of law. Therefore, the title over the property in question cannot be said to have passed on to the hands of the Plaintiff even being said that he had accepted the gift. 11. The very entry upon the suit land as per the case of the Plaintiff is through that so called unregistered deed of gift (Ext.3) and thereby he claims to have the possessory title over the suit land. When as per the case of the Plaintiff, the possession was with Kamala and that he claims to have taken over by that gift which per se is invalid in the eye of law, his possession is not to be taken note of in the eye of law as to be having the possessory title. The frame of the suit is based on the claim of title over the property and possession of the same R.S.A. No.350 of 2023 Page 6 of 7 {{ 7 }} flowing from the same as such and it is not a case of possession simplicitor. The Plaintiff under that situation when claims to have the possessory title over the suit land and as such claims to maintain his possession even if against the Defendant, as the only party, for the suit to proceed even for the consideration of grant of the relief with permanent injunction based on possessory title, the State of Odisha is a necessary party. The Plaintiff has not taken any step in that regard all through during the pendency of the suit as also the First Appeal. Therefore, no fault is found with the dismissal of the suit as has been ordered by the Courts below. The long line of the decisions cited by the learned Counsel for the Appellant are all distinguishable as the facts and circumstances of those cited cases are not only different but also the base for the suit to stand as required and discussed above has been pleaded. In view of the above, the submission of the learned Counsel for the Appellant (Plaintiff) that there surfaces no such substantial question of law as pointed out for being answered in this Appeal meriting its admission cannot be countenanced with. 12.
Decision
In the result, the Appeal stands dismissed. No order as to cost. Signature Not Verified Gitanjali Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 16-Feb-2024 18:12:55 R.S.A. No.350 of 2023 (D. Dash), Judge. Page 7 of 7