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2002 DIGILAW 42 (ORI)

MUKTESWAR KAK ALIAS GANDA v. RADHAMOHAN SAHU

2002-01-23

P.K.TRIPATHY

body2002
P. K. TRIPATHY, J. ( 1 ) APPELLANTS in Title Appeal No. 24 of 1979 of the court of District Judge, Sundargarh who were defendant Nos. 2 and 3 in Title Suit No. 29 of 1977 of the Court of Subordinate Judge, Sundargarh, presently described as Civil Judge Senior Division) have preferred this Second Appeal as against the concurrent judgment and decree passed by the said two Courts decreeing the plaintiff's suit for declaration of title, recovery of possession and mesne profit. During the pendency of this appeal as the plaintiff/respondent No. 1 died, therefore, his sons have been substituted as the legal heirs as per order dt. 24-9-1997 passed by this Court. Defendants 1, 4 and 5 are respectively Respondent Nos. 2 to 4. ( 2 ) ADMITTEDLY, the inter se relationship of the defendants is as follows :- ( 3 ) PLAINTIFF's case is that land of Khata No. 161 was the Chowkidari land (service tenure land) and plot No. 1359 is a part of that holding. Basu was the Chowkidar and to the said post the eldest branch succeeded and appointed as Chowkidar and that is how after the death of Madhusudan defendant No. 1 became the Chowkidar. Land of holding No. 161 was exclusively possessed by that branch with their rights and interest. Land in Khata No. 91 was the joint family property and in amicable family partition by severance of status Plot No. 1346 of that holding inter alia was allotted to the share of the branch of Defendant Nos. 4 and 5 i. e. to their grandfather Samaru. The Defendants being 'ganda' by Caste are members of Scheduled Caste. Plaintiff is a caste man. Therefore, any transaction for sale of landed properties according to the provision in S. 22 of the Orissa Land Reforms Act, 1960 (in short, 'the Act, 1960') was subject to grant of permission by the Revenue authorities. According to the plaintiff, being ignorant about such provision of law but on the basis of the genuine contract between Defendant Nos. 4 and 5 and the plaintiff, the latter purchased AC. 1. 29 decimals of land from Defendant Nos. 4 and 5 vide six registered sale deeds during 8-12-1967 to 2-9-1968 and the subject-matter of sale on each occasion was part of either Plot No. 1346 or 1359. The details of such sale transactions are indicated in Schedule 'a' of the plaint. 1. 29 decimals of land from Defendant Nos. 4 and 5 vide six registered sale deeds during 8-12-1967 to 2-9-1968 and the subject-matter of sale on each occasion was part of either Plot No. 1346 or 1359. The details of such sale transactions are indicated in Schedule 'a' of the plaint. When the plaintiff and Defendant Nos. 4 and 5 became aware of the provision of law an application was made to the S. D. O. , Sundargarh for grant of permission u/s. 22 of the Act, 1960 and after grant of such permission on 8-3-1972 Defendant Nos. 4 and 5 alienated the aforesaid AC. 1. 29 decimals of land by executing and registering a sale deed. It is when Defendant Nos. 1 to 3 forcibly trespassed and possessed the case land that plaintiff instituted a complaint vide I. C. C. No. 22 of 1975 and as they were acquitted he instituted the suit with the prayer for declaration of right, title and interest over the suit land and for recovery of possession. In fact, the prayer for recovery of possession was though pleaded in paragraph 12 of the plaint but that was not incorporated in the prayer portion. However, an application for amendment being moved by the plaintiff in the first appellate Court that was allowed on 10-4-1981 and that prayer was also incorporated along with the claim of mesne profit and the consequential relief. ( 4 ) DEFENDANT Nos. 1 and 4 filed a joint written statement admitting to the claim of the plaintiff and conceding to the contents in the plaint. Defendant No. 5 filed a separate written statement admitting to the plant genealogy and the other contentions in the plaint but denying to allotment of Plot No. 1346 to the share of his father. He also stated that he was a party to the aforesaid sale deeds before and after grant of permission but he executed the same on being influenced by his elder brother on the assumption that the concerned documents were deeds of mortgage. He also claimed regarding non-passing of consideration. Defendant Nos. 2 and 3 jointly filed a separate written statement admitting to the plaint averments regarding the Chowkidari tenure of holding No. 161 and raiyati status of Khata No. 91. He also claimed regarding non-passing of consideration. Defendant Nos. 2 and 3 jointly filed a separate written statement admitting to the plaint averments regarding the Chowkidari tenure of holding No. 161 and raiyati status of Khata No. 91. While admitting to the separate possession for the sake of convenience of the joint family property by the sons of Basu they claimed of no partition in metes and bounds and also claimed a part of Plot No. 1346 being in their possession althrough out. In addition to that, they also pleaded that the sale transactions as per Schedule A being void, in a proceeding u/s. 23 of the Act, 1960, order of eviction was passed against the plaintiff and thereafter to over come the same plaintiff could manage to get permission and execution of the sale deed as per the Schedule 'b'. They have further pleaded that the sale deed of the year 1972 was not for consideration nor with delivery of possession and Defendant Nos. 4 and 5 had no exclusive right to transfer the same and therefore no title has passed in favour of the plaintiff and he is not entitled to any relief which he has claimed. ( 5 ) ON the basis of the aforesaid pleadings five issues were framed which are as follows :- (I) Whether the suit is maintainable ? (ii) Whether the alleged transfers are valid in the eye of law and binding on Defendant Nos. 2 and 3? (iii) Whether there was a partition in the family of the Defendants? (iv) Whether the plaintiff has any right, title and interest over the suit land ? and (v) To what relief, if any, the plaintiff is entitled to? ( 6 ) IN course of hearing in the trial Court it is the plaintiff and defendant Nos. 2 and 3 who adduced both oral and documentary evidence in support of their respective cases. ( 7 ) LEARNED Subordinate Judge decided the aforesaid issues by recording the findings in favour of the case of the Plaintiff on all the issues and accordingly decreed the suit for title and recovery of possession and directed the defendant Nos. 2 and 3 to pay Rs. 200/- for the years 1975 and 1976 and at the rate of Rs. 100/- for each year thereafter towards mesne profits till recovery of possession by the plaintiff. 2 and 3 to pay Rs. 200/- for the years 1975 and 1976 and at the rate of Rs. 100/- for each year thereafter towards mesne profits till recovery of possession by the plaintiff. In Title Appeal No. 24 of 1979 preferred by Defendant Nos. 2 and 3 plaintiff was Respondent No. 1 and the rest of the defendants were Respondent Nos. 2 to 4 so also in the present Second Appeal. The finding of the trial Court was challenged on all the issues and after re-assessment of evidence and consideration of the case of both the parties on merit learned District Judge, Sundargarh concurred with the judgment and decree of the trial Court and accordingly dismissed the appeal. As against that the Second Appeal has been preferred. At the stage of hearing under Order 41, Rule 11, C. P. C. the Second Appeal has been admitted on the substantial question of law vide ground No. 7 (a) which reads as follows :-"7 (A ). Whether the suit for mere declaration of title is maintainable without any prayer for recovery of possession when admittedly the plaintiff is not in possession of the disputed land and seeks recovery of mesne profits for wrongful dispossession. "the above quoted ground necessarily implies that such a ground has been taken by the appellants on the assumption of lack of pleading relating to claim for recovery of possession. In view of that when the plaint is perused, it is seen that in paragraph 12 of the plaint, plaintiff has stated that :-"12. That the defendants Nos. 1 to 3 have illegally trespassed over the Schedule 'b' lands and are continuing in possession of the same and have illegally got the usufruct therefrom for the years 1975 and 1976. The defendants are liable to compensate the plaintiff and for eviction from the 'b' schedule (Suit) lands. "notwithstanding the above quoted pleading prior to 10-4-1981 the prayer portion in the plaint was not incorporating the relief of recovery of possession though the prayer No. 3 was a general prayer to grant any other relief. Perhaps because of the technical objection of the defendants that in the lower appellate Court, plaint was got amended to insert the prayer of recovery of possession. Perhaps because of the technical objection of the defendants that in the lower appellate Court, plaint was got amended to insert the prayer of recovery of possession. In view of such circumstance, learned counsel for the defendants 2 and 3 fairly submits that the above quoted ground No. 7 (a) is no more available in favour of the appellants because of availability of necessary pleadings. He, however, argues that when the Second Appeal has been admitted for hearing, any other substantial question of law which is involved can be raised at the time of hearing. Keeping in view the provision of law in the proviso to sub-sec. (5) of S. 100, C. P. C. hardly there can be any dispute on that contention. But the same has to be accepted with a rider that in such a circumstance the Court has to be satisfied that the case involves such a question of law which needs consideration and adjudication even if not formulated as a substantial question of law at the stage of hearing under Order 41, Rule 11, C. P. C. ( 8 ) OTHER such question of law according to learned counsel for the appellants is as follows. Learned counsel for the appellant argues that the sale deed Ext. 6 recites about passing of consideration but the averments in the plaint as well as the evidence of P. W. No. 1 clearly indicate that the consideration amount i. e. , the sale price mentioned in Ext. 6 did not pass hands at or after execution of Ext. 6. When the sale transaction is without any consideration, therefore, Ext. 6 does not convey any title in favour of the plaintiff and in view of that plaintiff is not entitled to any of the reliefs whatsoever. The aforesaid argument of the appellant though sounds attractive and logical but the same is devoid of any merit. One of the reasons for such a finding is that the concurrent findings on fact by the Courts below is that before conveying the suit land to the plaintiff the defendants 4 and 5 were the owners thereof. The aforesaid argument of the appellant though sounds attractive and logical but the same is devoid of any merit. One of the reasons for such a finding is that the concurrent findings on fact by the Courts below is that before conveying the suit land to the plaintiff the defendants 4 and 5 were the owners thereof. In that respect as admitted by the parties in their pleadings and evidence, Plot No. 1359 was admittedly owned and possessed by defendants 4 and 5 before transferring them by executing sale deed and according to the evidence on record Plot No. 1346 was allotted to the share of the family of defendant Nos. 4 and 5. Therefore, defendant Nos. 2 and 3 have not proved of any right, title and interest over the lands which were transferred under Ext. 6. As per the evidence on record and the concurrent finding thereof defendant Nos. 4 and 5 were the persons who were owners in possession of the case land by the respective dates of sales till execution of Ext. 6. Defendant No. 4 has admitted to the claim of the plaintiff where as defendant No. 5 though filed a written statement denying to execution of sale deed but has not adduced any evidence in support of the plea advanced by him. He has also not challenged plaintiffs evidence in respect of execution of sale deeds passing of title and delivery of possession. Admittedly defendant Nos. 2 and 3 having no right, title and interest on the suit property stand in the footing of strangers and they do not have the legal status to challenge the alienation in the aforesaid manner. For the reasons indicated above, the aforesaid argument of the appellant is heard to be rejected. ( 9 ) NO other contention is raised on any other legal issue. On an analysis of the aforesaid contention and the materials on record, this Court finds no reason to interfere with the impugned judgments and accordingly the Second Appeal stands dismissed. Appeal dismissed.