The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.367 of 2022 the judgment dated 29.9.2022 passed (From in RFA learned Addl. District Judge, No.10/2017 passed by Phulbani, Kandhamal dismissing the appeal and confirming the judgment and decree dated 28.2.2017 and 16.3.2017 passed by learned Civil Judge (Sr. Division), Phulbani in C.S. No.16/2017) Kamala Kanta Pandey … Appellant -versus- Rabanna Rao and others … Respondents Advocates appeared in the case through hybrid mode: For Appellant : Mr.Jagannath Bhuyan, Advocate -versus- For Respondent Nos.1 to 4 : Mr. Biswajit Maharana, Advocate. For Respondent Nos.5 & 6 : Mr. A.R.Dash, A.G.A. For Respondent No.7 : Mr. Tushar Ku. Mishra, Advocate --------------------------------------------------------------------------- R.S.A. No.367 of 2022 Page 1 of 19 CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16.5.2025. Sashikanta Mishra,J. This is an appeal by the Defendant No.1 against a confirming judgment. The suit filed by the Plaintiff and the counter claim filed by the Defendant No.1 were decreed in part by the trial Court. The First Appellate Court confirmed the said judgment filed by the Defendant No.1. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The facts of the case, briefly stated, are that the Plaintiff claims to have purchased the suit schedule property vide RSD No.100/1974 from one J.K.Prusty. His vendor had obtained permission from the government vide
Legal Reasoning
order dtd.19.8.1974 for such sale. Defendant No.2 is the brother of the Plaintiff. Since both of them were in need of money, they requested the defendant, who is their northern boundary neighbor, for financial help. Accordingly, both of them borrowed Rs.40,000/- on 05.9.1994, Rs.50,000/- on R.S.A. No. 367 of 2022 Page 2 of 19 12.12.1996 and Rs.30,000/- on 5.1.1998 by mortgaging the suit schedule property thorough three unregistered mortgage deeds and delivered possession through Defendant No.1. Subsequently, when they approached the Defendant No.1 with intention to repay the loan and requested to redeliver the property, Defendant No.1 refused. Several demand notices were issued. The matter was also referred to the President of the Marketing Society on 19.2.2003 for settlement but, to no avail. Since the land was recorded in the name the State, statutory notice under Section 80 of C.P.C. was served on the State- defendants. On such facts, the Plaintiff filed the suit for declaration of his right, title, interest and possession over the suit schedule property and for direction to Defendant No.1 to deliver possession of the suit property as also for correction of Khata No.224, Plot No.720/1130. 4. Defendant No.1 filed written statement disputing the plaint averments. It was stated that the property under Khata No.224, Plot No.720/1130 is recorded in the name of the State of Odisha. The Plaintiff and Defendant No.2 without having title, partitioned the property between them R.S.A. No. 367 of 2022 Page 3 of 19 and mortgaged the same in his favour as security for money lent by him. They also delivered possession. The plaintiff filed the suit to avoid repayment of the borrowed money. Defendant No.1 also filed a counter claim seeking declaration of his possessory title against Plaintiff and Defendant No.2 and for recovery of the borrowed money with interest. 5. The State-Defendant Nos.3 and 4 filed written statement stating that the title and ownership of the suit property is with the State. Leasehold interest was given to one Jami Kamaraju Prusty to sell the same to the plaintiff. In the R.O.R. there is note of illegal possession in the name of the Plaintiff and Defendant No.2. Further, an encroachment case bearing No.60/2003 was initiated against the Defendant No.2 in respect of a portion of the suit property. It is further stated that neither party has any right and title over the suit property as the State is the absolute owner and title holder thereof. 6. Be it noted that Defendant No.2 also filed a written statement entirely supporting the plaint averments. R.S.A. No. 367 of 2022 Page 4 of 19 7. Basing on the rival pleadings, the trial Court following the issues for determination; is the claim suit/counter 1.Whether maintainable? 2.Has the plaintiff /Defendant No.1any cause of action for this suit/counter claim? 3.Has the plaintiff right, title, interest and possession over the suit property? 4.Has the defendant No.1 possessory title over the suit property? 5.Has the defendant No.1 possession over the suit property or alternatively entitled to recovery of the possession over the suit property? 6.Has the mortgage deeds dtd.5.9.94, 5.1.98 & 12.12.96 executed in favour of the defendant No.1 stood discharged? 7.Has the plaintiff otherwise entitled to the possession of the suit property? 8.Is the defendant No.1 entitled for realization of Rs.1,20,000/- with pendent lite and future interest? 9.Is the ROR of the suit property not correct? 10. Is defendant No.1 entitled to settlement of the suit property in his favour? 11.Is the defendant No.1 in possession of the suit property? 12.Have the plaintiff and Defendant No.2 entered threat to Invade upon and/enjoyment of D-1 over the suit property? 13. To what relief if any, the Plaintiff/D-1 is entitled? right the to 8. The trial Court took up Issue Nos.6 and 8 for determination at the outset. It observed that the suit plot is a portion of the Government land relating to Khata No.224, Plot No.720/1130 with the total extent being 13’.2’’X96’. It was further found that the suit land was R.S.A. No. 367 of 2022 Page 5 of 19 properly identifiable. As regards the mortgage deed exhibited as Exts.4, 5 and 6, the trial Court referring to the provisions under Section 59 of the Transfer of Property Act held that the same being unregistered are not admissible but can be utilized for co-lateral purposes. The trial Court further found from the evidence that the Defendant No.1 has been possessing the suit land and of admitting to have given loan of Rs.1,20,000/- in three instalments to the Plaintiff and Defendant No.2 by taking possession. Such possession was held as permissive and not adverse. Further, the borrowed money was a debt without mortgage and his possession basing on unregistered document is permissive wrongful possession. Considering the date of execution of the mortgage deeds, the trial Court held that the suit was filed within 12 years from the date of execution of the mortgage deeds and therefore, within the period of limitation. It was further held that though the loan given by Defendant No.1 is a time-barred debt, but in view of admission of both parties, the Defendant No.1 is entitled to realise Rs.1,20,000/-, but without any interest. On the other issues, the trial Court found from the R.S.A. No. 367 of 2022 Page 6 of 19 evidence (Ext.D) that the suit land to the extent of 96’X40’ was given on lease by the Government in the year 1951 and the same was sold to one Judhistir Patra by Mohanlal Agrawal. The said Judhistir Patra and J.Kamaraju Prusty were jointly performing some business and the suit land fell to the share of J. Kamaraju Prusty, who sold the same to the Plaintiff, Defendant No.1 and another person after obtaining permission from the S.D.O. Thus, the Plaintiff acquired the suit land from J. Kamaraju Prusty through sale deed. It was finally held that though the suit land stands recorded in the name of the Government but the same was leased out to some persons and subsequently, with permission of the Government, the Plaintiff had purchased 1/3rd portion of the property. So, the Plaintiff was held to have acquired possession in proper way. Though the lease was cancelled and not renewed by the Government, the Defendant No.1 had taken possession of the suit land through the unregistered mortgage deeds. As such, the Plaintiff and Defendant No.2 are entitled to get back possession. On the above findings basically, the suit was decreed in part by directing Defendant No.1 to hand R.S.A. No. 367 of 2022 Page 7 of 19 over possession of the suit property to the Plaintiff and Defendant No.2 and the counter claim was also decreed in part by directing the Plaintiff and Defendant No.2 to make repayment of Rs.1,20,000/- to the Defendant No.1. 9. Defendant No.1 carried the matter in appeal. After considering the rival contentions, the First Appellate Court first noted the admitted/undisputed facts. Referring to the definition of lease under Section 105 of the T.P. Act, the First Appellate Court held that as the vendor of the Plaintiff had taken the property on lease from the State Government, which expired in the year 1971, his status became that of a tenant at sufferance from the date of determination of lease. As the lessee sold the property to Plaintiff with permission of the State, the status of the vendor lessee was of a tenant at will and his tenancy being permissive, is deemed to be a valid lease. Therefore, in accordance with Section-8 of the Transfer of Property Act, the vendor transferred that much of right to the Plaintiff vide R.S.D. dated 28.9.1974 being permitted by the State Government. The First Appellate Court then referred to R.S.A. No. 367 of 2022 Page 8 of 19 Section 116 of the Indian Evidence Act and held that Defendant No.1 having taken possession of the property by delivering money to the Plaintiff and Defendant No.2, is estopped under law to deny possessory title of the Plaintiff. It was thus held that the Plaintiff has possessory title and right to enjoy the property in dispute prior to extension of such mortgage. The other finding of the trial Court regarding the inadmissibility of the unregistered mortgage deeds and the obligation of the Plaintiff and Defendant No.2 to return the borrowed money to Defendant No.1 and the denial of interest on such money claimed by the Defendant No.1 by the Trial Court were confirmed. On the question of limitation, the First Appellate Court held that the Plaintiff demanded possession of the suit property on 21.12.2000 and 19.2.2023 and therefore, the possession of Defendant No.1 became adverse though prior to those dates, it was permissive. The suit being filed on 10.5.2007 was within the period of limitation. All other findings of the trial Court were confirmed and the appeal was dismissed. R.S.A. No. 367 of 2022 Page 9 of 19 10. Being further aggrieved, the defendant No.1 has filed the present appeal, which was admitted on the following substantial questions of law; (i) Whether an invalid mortgaged deed can be referred to for ascertaining the nature and character of the possession ascertained by reference to the document itself ? (ii) Whether the plaintiff’s possessor right is extinguished in view of the proceeding under OPLE Act against the defendant no.1? (iii)Whether a single appeal is maintainable against the composite decree passed by the trial Court in the suit as well as in the counter-claim?
Legal Reasoning
11. Heard Mr. J. Bhuyan, learned counsel for the defendant No.1-Appellant, Mr. T.K.Mishra, learned counsel for the Plaintiff, Mr. B. Maharana, learned counsel for the Defendant No.2 and Mr. A.R.Dash, learned A.G.A. for the State defendants. 12. Assailing the impugned judgment, Sri Bhuyan would argue that the First Appellate Court developed a third case by holding the Defendant No.1 as a tenant at sufferance and wrongly applied the principle of estoppel against him. The further finding regarding limitation is also R.S.A. No. 367 of 2022 Page 10 of 19 misconceived since the title is with the State and Defendant No.1 never claimed adverse possession. The lease deed was never produced in evidence nor the lessee J. Kamaraju Prusty was impleaded as a party. Defendant No.1 has paid penalty in the encroachment proceeding. The property being recorded in the name of the State, only the State can evict him from the suit land, but not from the plaintiff. 13. Mr. T.K.Mishra and Mr. B. Maharana have both argued that First Appellate Court has not made out a third case but analyzed the evidence on record correctly. J. Kamaraju Prusty was the sole lessee and he sold the property after obtaining permission. Therefore, his vendees stand in his shoes. 14. Mr. A.R.Dash, learned State counsel would argue that the property being a lease hold property and the same having admittedly expired no permission could have been granted for sale of the same. Such permission must be held to have been wrongly granted and therefore, the sale deed executed by J. Kamaraju Prusty, who was never the lessee R.S.A. No. 367 of 2022 Page 11 of 19 in the first place, is not valid. The property was therefore, rightly recorded in the name of the State with note of illegal possession of the plaintiff. Neither the Plaintiff nor the Defendant No.1 or 2 have any right, title or interest over the property. As such, the possession of Defendant No.1, if at all, is completely unlawful. 15. After going though the impugned judgments and considering the contentions raised, this Court is of the view that both the Courts below appear to have ignored certain vital aspects of the matter inasmuch as the question of title of the Plaintiff over the suit property has not received the attention it deserves. As already stated, the Plaintiff claims to have purchased the schedule property from one J. Kamaraju Prusty vide RSD No.100/1974. Said J. Kamaraju Prusty had obtained permission from the Government vide order dtd.19.8.1974. Interestingly, the trial Court found from the evidence that the suit land was given on lease by the Government in the year 1951 to one Mohanlal Agrawal, who sold it to one Judhistir Patra. Trial Court has relied upon Ext.D, which is the order sheet in R.S.A. No. 367 of 2022 Page 12 of 19 Objection Case No.83/1979 registered under Section 22(3) of the Orissa Survey and Settlement Act, 1958 in the Court of the Asst. Settlement Officer. Reference to Ext.D reveals that the suit plot measuring an extent of 96’X60’ was leased in favour of Mohanlal Agrawal in 1951. Said lessee sold it to Judhistir Patra. It is not known if permission was granted by the lessor Government for such sale. Even otherwise, it is not understood as to how Mohanlal Agrawal, who had only a lease hold interest over the property, could sell the same. It is further revealed that the vendee-Judhistir Patra and J. Kamaraju Prusty (Plaintiff’s vendor) were jointly carrying on business as partners and after dissolution of the partnership the suit plot fell to the share of J. Kamaraju Prusty. This is again highly surprising inasmuch as there is nothing to show as to how J. Kamaraju Prusty acquired interest over the suit property when his business partner Judhistir Patra alone is said to have purchased the property from Mohanlal Agrawal. 16. Another important aspect, which is mentioned in the order of the ASO, is that J. Kamaraju Prusty sold the suit R.S.A. No. 367 of 2022 Page 13 of 19 plot to the plaintiff after expiry of the lease in 1971. The ASO has specifically noted that at no point of time said J. Kamaraju Prusty acquired any lease hold interest over the suit property. As such, the property was recorded in the name of the State. It was further specifically held that J. Kamaraju Prusty has no title over the suit property. The order of the ASO does not appear to have been challenged in any higher forum and must therefore, be treated as final. Even otherwise, it is borne out from the other evidence on record namely, Ext.2 and Ext.3, which are letters of permission granted by the Sub-divisional Officer, Kandhamal in RLT No.80/1974 of J. Kamaraju Prusty to sell the suit property. Now, if the lease itself had expired in the year 1971 how could such permission be granted purportedly under Section 60 of the Kandhamal Laws Regulations, 1936. For reference, Section 60 (1) of the Regulations is quoted herein below: “60(1) No transfer or charge (whether permanent or temporary) by a tenure-holder or raiyat of his right in his tenure or holding or any portion thereof, whether by mortgage, lease, sale, gift, exchange or otherwise, shall be R.S.A. No. 367 of 2022 Page 14 of 19 valid unless it is made with the written consent of the Deputy Commissioner.” It would be relevant to mention here that who exactly was the ‘tenure-holder’ within the meaning of the quoted provision is not clear. When was the lease granted and on what terms and conditions is also not at all clear. This Court, therefore does not deem it proper to place any importance on the so-called permission granted by the Sub-Collector to sell the property. It is also surprising that in the absence of any subsisting interest, J. Kamaraju Prusty was granted permission to sell the land. 17. As has already been discussed before, this Court finds it more reasonable to accept the findings of the ASO in the Objection Case that J. Kamaraju Prusty had never acquired any sort of interest or title over the suit land. The question is, how could he sell the land to the plaintiff. Reference to the sale deed marked Ext.1 does not throw much light either inasmuch as the recitals simply mention R.S.A. No. 367 of 2022 Page 15 of 19 that the vendor (J. Kamaraju Prusty) is the owner in possession having full title over the suit property. From what has been discussed before, it is evident that the recital as above is entirely unacceptable for which the sale deed, having been executed by a person having no title, must be treated as invalid. It is highly surprising that the trial Court, despite noting the above, failed to appreciate the implication thereof and went on to hold that the plaintiff had purchased 1/3rd portion of the property with permission of the Government. 18. Coming to the judgment of the First Appellate Court, it is seen that the matter has been dealt with in a different manner altogether. It was held that the vendor of the plaintiff had taken the property on lease, which expired in the year 1971 for which his status became that of a tenant at sufferance from the date of determination of lease. It was further held that as the lessee sold the property to the plaintiff with permission of the State, the status of the vendor was that of a tenant at will and his tenancy being permissive, is deemed to be a valid lease. So, in accordance R.S.A. No. 367 of 2022 Page 16 of 19 with Section 8 of the Transfer of Property Act, the vendor transferred that much of right to the plaintiff vide RSD dated 28.9.1974 being permitted by the State Government. This Court has already held that the plaintiff’s vendor had absolutely no title or interest over the suit property or at least the plaintiff has not been able to demonstrate that he had any such interest or title. Moreover, the lease having expired in 1971, the question of the State granting permission to J. Kamaraju Prusty, who was never the lessee, to sell the property is entirely unconscionable in law. The First Appellate Court must therefore, be held to have committed manifest error in failing to go to the root of the matter to determine the flow of title to the plaintiff. Once the plaintiff is held to have no title over the suit property, his possession, if any, becomes unlawful and he is liable to be evicted in accordance with law. In so far as the Defendant No.1 is concerned, he claims to have entered into possession on the basis of three mortgaged deeds, which have also been held to be inadmissible for want of registration. So, the possession of Defendant No.1 cannot also be countenanced in law. R.S.A. No. 367 of 2022 Page 17 of 19 19. Another important aspect that seems to have escaped attention of the Courts below is that the property being admittedly recorded in the name of the Government with note of illegal possession of the plaintiff and there being no relief claimed for declaration of title in respect of the suit property by either of the parties, the suit is not maintainable. Significantly, the plaintiff did not implead his vendor J. Kamaraju Prusty as party to the suit which, in the present context, is a significant and material omission. 20. In the above context and particularly, for the inability of the plaintiff to establish his title over the suit property, the initiation of encroachment case against him assumes greater significance. 21. Thus from a conspectus of the analysis of facts, law and the discussion made, this Court is left with no doubt that the plaintiff has no title over the suit property. Defendant No.1 also has no title over the suit property. The possession of either of them is therefore, treated as unlawful. R.S.A. No. 367 of 2022 Page 18 of 19 22. In view of the finding of this Court, which goes to the root of the matter, answering the other substantial questions of law framed at the time of admission becomes redundant. 23. For the foregoing reasons therefore, the appeal is found to be devoid of merit and is therefore, dismissed. The suit and the counter-claim are both dismissed being not
Decision
maintainable. There shall be no order as to costs. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-May-2025 12:25:16 R.S.A. No. 367 of 2022 Page 19 of 19