High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.240 of 2022 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Padampur in RFA No.43 of 2014 in confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Padampur in C.S. No.02 of 2011. ……… Ananda Ch. Sahu @ Ananda Sahu & Another :::: Appellants -:: VERSUS ::- Manoranjan Patel & Others :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellants … Mr. Tikeran Meher, Advocate For Respondents … --- --- --- ------
Legal Reasoning
CORAM HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 11.01.2024 :: Date of Judgment: 16.01.2024 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Padampur in R.F.A. No.43 of 2014. {{ 2 }} The father of these Appellants as the original Plaintiffs had filed Civil Suit No.02 of 2011 in the Court of the Civil Judge (Senior Division), Padamapur. The suit is for declaration of his right, title and interest over the suit land with further prayer to injunct the present Respondents arraigned as Defendants therein and also for a declaration that the registered sale deed dated 23.09.2010 is invalid and not binding. The suit having been dismissed, Purna Chandra the Predecessor-In-Interest of these Appellants as the unsuccessful Plaintiff had carried an Appeal under section 96 of the Code. During pendency of that Appeal, Purna Chandra died. So, these Appellants who are his two sons came on record upon their substitution and pursued the said Appeal. That Appeal has also been dismissed. 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 Trial Court. 3. Plaintiffs Case: - One Palika Patel had six sons. Out of them one son, namely, Dharanidhar died leaving his widow Surubali. Jaydeb the nephew of Dharnidhar died leaving behind his three sons, namely, Sankarlal, Iswar and Barun. Sankarlal left behind his only daughter Rahela. It is stated that after the death of Dharanidhar, Surubali and Jaydeb were possessing their respective shares of land without any disturbance from any Page 2 of 9 {{ 3 }} quarter. They disposed of their share of land independently. Surubali transferred Ac.4.10 dec. of land in favour of Jayakrushna, the father of the original Plaintiff in the year 1958 and delivered possession of the same. After death of Surubali, Sankarlal the grandson of Chakra possessed the land which was possessed by Surubali and that is the subject matter of the present suit. When he was so possessing the land in suit, he (Sankarlal) sold the suit land to the Plaintiff for valuable consideration followed by delivery of possession. It is stated that during the Major Settlement Operation, the Plaintiff produced the registered sale deed before the Settlement Authority for recording of the said land in his favour. The Settlement Authority after due inquiry, although were satisfied with the possession of the suit land by the Plaintiff, recorded the name of the Plaintiff in the remark column as ‘Beaini Kharid Sutre Dakhal’ meaning ‘possession on the basis of illegal purchase’. So, the Plaintiff initiated Mutation Case No.16 of 1981 for recording of the suit land in his name and that was rejected in view of the objection filed by Motilal, Siblal and Ramananda on the ground that the record of right was prepared in the name of Motilal and others. Subsequently, the Plaintiff again applied for mutation of the suit land in his favour in the year 2002. In that mutation case, the report of the Revenue Inspector being called for, the possession of the Plaintiff over the suit land basing upon his purchase was ascertained. Even then the prayer for mutation was rejected in Page 3 of 9 {{ 4 }} view of the objection filed by the Defendants, more importantly because of the publication of the record of right jointly in the names of the Defendants. It is also stated that the said joint record of right is wrong and by that the Defendants have acquired no right, title and interest over the suit land. It is next stated that even if the title of the owners had acquired any title, those stood extinguished. It is also stated that from the time of purchase of the land from the year 1958 the original Plaintiff has remained in possession over the suit land to the knowledge of the Defendant Nos.1 to 4 and his possession was open, peaceful and continuous as its owner denying the title of the true owner . So, it is said that original Plaintiff had perfected title by way of adverse possession. The transfers of the suit land by the Defendant Nos.1 to 4 are said to have been illegally done. They are said to have illegally transferred some land including the suit land to the Defendant Nos.14 to 17. On the basis of the sale deed in favour of Defendant Nos.14 to 17 when they came to dispossess the Plaintiff from the suit land, the Plaintiff was compelled to file the suit. 4. The Defendant Nos.1 to 4 and 14 to 17 filed a joint written statement. While traversing the plaint averments, they stated that Surubali is not the only heir of Dharanidhar who had died leaving behind Surubali and minor son Hajaru. After death of Dharanidhar, it is said that his property under Hamid Settlement Khata No.23 came to be recorded in the name of Surubali as Hajaru was minor. Then Hajaru possessed the land till his death Page 4 of 9 {{ 5 }} and after his death his three sons, namely, Motilal, Siblal and Ramananda possessed the same. Accordingly, the record of right of the suit land along with other lands have been published in their names. After the death of Motilal, Siblal and Ramananda, their legal heirs are possessing the same and paying the rent. It is further stated that Sankarlal had no right, title and interest to transfer the suit land to the Plaintiff. The sale deed is said to have been executed behind the back of the real owner and without his knowledge and consent. Thus, it is said that the Defendant Nos.1 to 4 being the owner in possession of the suit land are paying the rent and for their legal necessity, they have transferred the suit land to the Defendant Nos.14 to 17 on receipt of the valuable consideration followed by delivery of possession. It is again asserted that Sankarlal had no right, title and interest over the suit land and thus the sale deed projected by the Plaintiff as the document of title over the suit land is not a valid one and thereby the Plaintiff has to been clothed with the title in respect of the suit land. 5. The Defendant No.1 in his separate written statement stated that Dharanidhar died leaving his widow Surubali as his only heir. Dharnidhar and Surubali died issueless and Defendant No.9 is the only heir of Sankarlal. After the death of Surubali, his father Sankarlal possessed the suit land and while in such possession, Sankarlal for legal necessity transferred the suit land to the Page 5 of 9 {{ 6 }} Plaintiff and since then the Plaintiff is in possession of the suit land and as such the suit is not maintainable. 6. On the above rival pleadings, the Trial Court framed as many many as seven (7) issues. Rightly taking up, issue Nos.3 to 6 together which concern with the legal impact of registered sale deed dated 11.07.1968, 29.09.2010 as also the Plaintiff’s possession since the year 1968 and his claim of perfection of title by way of adverse possession in ultimately deciding the entitlement of the Plaintiff to the reliefs claimed, the Trial Court upon examination of evidence and their evaluation, has concluded that the Plaintiff has no right, title and interest over the suit land. This has practically led the Trial Court to dismiss the suit. The unsuccessful Plaintiff having carried the First Appeal, the First Appellate Court has affirmed the findings of the Trial Court upon appreciation of evidence and their independent assessment at its level, Thus, both the Courts below having dismissed the suit, the substituted Plaintiffs are before this Court in this Second Appeal. 7. Learned counsel for the Appellants reiterating the grounds taken in the Memorandum of Appeal urged for admission of the Appeal to answer the following substantial questions of law:- (i) For that the learned Courts below have not proved through evidence on record that Hajaru is the legal successor in absence of Section 6 and 8 of the Hindu Page 6 of 9 {{ 7 }} Succession Act, 1956. Have not the learned Courts below put the onus on the wrong shoulder? (ii) Is not judgment of Courts below vitiated for non- consideration of materials evidence extracted in Grounds Nos.(O) and (P) above. (iii) In absence of evidence of DWS regarding relationship between Dharanidhar and Surubali with Hajaru, and the Courts below is justified in rendering a finding absence the section 50 of the Evidence Act is whether correct? (iv) For that the Courts below have considered the positive evidence of PWs as to the adverse possession on the record? (v) For that the pleadings of the parties there is no issues have been framed that Hajaru is the owner of the land and is there any documentary evidence before the Courts below? (vi) For that the Courts below specifically have not framed the issues as to whether Plaintiff-Appellant has right, title and interest over the suit land in question? 8. Having given my anxious consideration to the above proposed substantial questions of law although this Court is not in a position to follow and make out anything out of all those, yet as duty bound, this Court feels it proper to undertake the exercise Page 7 of 9 {{ 8 }} of ascertainment as to whether any substantial question of law arises in this appeal meriting its admission. 9. For the purpose, I have carefully perused the judgments passed by the Courts below. It is not disputed that the suit land originally belonged to Dharanidhar, who is one of the sons of Palika Patel. Admittedly, Chakra was the brother of Dharanidhar and Jaydev was the son of Chakra. It is also not in dispute that Shankarlal is the son of Jaydev. Therefore, in presence of other branches, Shankarlal could not have been the absolute owner of the suit land. If at all Dharanidhar had a son namely, Hajaru, thus Hajur became the absolute owner of the suit land. When there is no document or evidence that Hajaru was the son of Shankarlal and the Plaintiff has also not adduce any evidence to justify as to how Shankarlal got the title so as to transfer the same, the sale-deed which is projected by the Plaintiff as the document of title over the suit land is of no value in the eye of law. 10. Now the question turns around the possession of the suit land and his claim of acquisition of title over the same by way of adverse possession which in the present case is clearly found to be without any foundation. As the Plaintiff’s possession as per his own case when has come from the hands of Shankarlal who had absolute right over the property, the said possession for any length of time cannot stand as adverse to all the real owners. So in view of the failure of the Plaintiffs to establish the title of Page 8 of 9 {{ 9 }} Sankarlal, he cannot bank upon the alternative case/claim of acquisition of title by adverse possession. In view of all these aforesaid, this Court finds that there arises no substantial question of law for being answered meriting admission of this Appeal. 11. In the result, the Appeal stands dismissed. There shall, however, by no order as to cost. Himansu (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 19-Jan-2024 18:16:13 Page 9 of 9