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2002 DIGILAW 519 (ORI)

BIJAYA KUMAR JENA v. AJAYA KUMAR PARIDA

2002-08-16

L.MOHAPATRA

body2002
JUDGMENT : L. Mohapatra, J. - Plaintiffs are the Appellants against a reversing judgment. The Plaintiffs filed the suit for declaration of title, recovery of possession and permanent injunction. The case of the Plaintiff is that the suit land situates in Mouza Jamkuinda covered under Khata No. 673 in Plot No. 3764 measuring an area of 35 decs. The suit land originally belonged to one Srinath Raj. As Srinath Raj could not pay land revenue to the ex-zamindars, his properties including the suit land and other lands were put to auction sale by the Court to realise arrear land revenue and in the said auction sale, the ex-landlord Adikanda Mohapatra purchased the same and took possession thereof in the year 1937. Since the suit land could be used for agricultural purposes, the father of the Plaintiff requested the ex-zamindar Adikanda Mahapatra to give him the land for the purpose of cultivation and the Ex-zamindar leased out the said land in favour of the father of the Plaintiff. After such lease was granted, the father of the Plaintiff remained in possession of the same. Similarly, the said zamindar also leased out Anr. piece of land under the same Khata in Plot No. 4183 measuring an area of 1 acre 52 decimals out of 1 acre 87 decs, and the father of the Plaintiff remained in possession of the said plot also. After Estate Abolition Act came into force the Plaintiffs continued in possession of the land having succeeded to their deceased father. The father of Defendant No. 1 Raghunath Parida had also obtained a lease from the said zamindar in the year 1945 in respect of the remaining portion of the plot No. 4183 measuring Ao. 35 decs and had remained in possession thereof. After the death of Raghunath Parida-Defendant No. 1 as successor in interest remained in possession of the same. While the matters stood thus one Nilamber Jena filed a case u/s 36-A of the Orissa Land Reforms Act against Defendant No. 1 and in the said case the R.I. Jamkunda was directed to verify the spot and submit a report. The R.I. wrongly submitted a report stating that the entire plot No. 4183 measuring 1 acre 87 decs, is in possession of the Plaintiffs. Taking advantage of such report, the Defendant No. 1 decided to sale the aforesaid Ao. The R.I. wrongly submitted a report stating that the entire plot No. 4183 measuring 1 acre 87 decs, is in possession of the Plaintiffs. Taking advantage of such report, the Defendant No. 1 decided to sale the aforesaid Ao. 35 decs, of land in favour of the Plaintiff from out of the plot No. 4183 and an agreement was executed. Accordingly, the Plaintiff took over possession of the balance 35 decs, from Defendant No. 1 out of plot No. 4183. While the settlement operation was going on it was noticed that the suit land in plot No. 3764 which, had been leased out. in favour of the father of the Plaintiff had been recorded in the name of Defendant No. 1 and taking advantage of such wrong recording in the settlement records, the Defendant Mo. 1 not only tried to enter into the suit land forcibly but also sold the same under two registered sale deeds in favour of Defendant Nos. 2 to 9 on 19.01.80. After such fraudulent sale, it is alleged the Defendants 2 to 9 trespassed into the suit tend in plot No. 3764 and dispossessed the Plaintiffs. Accordingly, the Plaintiff had to file the suit with the prayer as stated above. 2. Defendant Nos. 1 to 9 filed a joint written statement denying the allegation made in the plaint. It is the case of the Defendants that the suit property belonged to the father of Defendant No. 1, Raghunath Parida and after his death Defendant No. 1 remained in possession. In the year 1980 the Defendant No. 1 being in need of money for construction of a house sold the suit land to Defendant Nos. 2 to 9 for a consideration of Rs. 6,450/- under two registered sale deeds and delivered possession thereof to Defendants 2 to 9. It is the further case of the Defendants that the Plaintiffs were never in possession of the suit plot and as matter of fact the Plaintiffs are in possession of plot No. 4183 measuring Ac. 1.87 decs which had been leased out by the zamindar in favour of the father of the Plaintiff. 3. On consideration of the pleadings of the parties, the trial Court framed as many as 7 issues. On consideration of evidence available on record the trial Court found that the Plaintiffs have not satisfactorily established their title by producing regular title deeds. 3. On consideration of the pleadings of the parties, the trial Court framed as many as 7 issues. On consideration of evidence available on record the trial Court found that the Plaintiffs have not satisfactorily established their title by producing regular title deeds. However, their long possession over the disputed plot No. 3764 was bound by the trial Court. He further found that the Plaintiffs were dispossessed by the Defendants on 20.01.80 and a thatched house was built by the Defendants over the suit plot. Since the trial Court found that the Plaintiffs were in possession of the suit plot till they were dispossessed, the suit was decreed and title of the suit was declared in favour of the Plaintiff against the Defendants except the true owner thereof. The trial Court also having found the Plaintiffs dispossessed by the Defendants directed for recovery of possession. 4. The Defendants challenged the said judgment and decree of the trial Court before the learned Addl. Sub-ordinate Judge, Balasore in appeal and the appeal was allowed on the finding that the lease granted by the power of attorney holder of zamindar Adikanda Mohapatra had no authority to do so as by time the lease was granted, Adikanda Mahapatra had become a major. Referring to the settlement entries, the lower appellate Court found possession with the Defendants and on the basis of above finding, the appeal was allowed. 5. At the time of admission, this Court formulated the following substantial questions of law for adjudication: (a) Whether the Plaintiffs are entitled to declaration of title, in view of the 40 years old Patta Ext. 3 and 4 and the rent receipts Exts.5, 5/a and 6 series particularly when the Defendants have failed to lead any evidence in support of his title and as to when and how it show originated? (b) Whether the finding of the Appellate court regarding possession of the disputed land is vitiated in taw for non consideration of the documentary evidence and 6 series) adduced by the Plaintiffs misreading and misconstruction of the oral version of P.W.1 (Plaintiff) and wrong construction of oral version of P.W. No. 3? (c) Whether the presumption of past and present possession of the Defendants drawn from. Ext. C, the Parcha and Ext. (c) Whether the presumption of past and present possession of the Defendants drawn from. Ext. C, the Parcha and Ext. F the draft Khata is correct in law, and (d) Whether the entire appeal has abated on account of the non-submission of the legal representatives of Shree Banshidhar Jena who died on 28.9.85, much ahead of the hearing of the appeal by the learned lower appellate Court? Referring to the substantial questions of law on which the appeal has been admitted Miss Panda, learned Counsel appearing for the Appellants challenged the findings of the lower appellate Court on the ground that while allowing the appeal, the lower appellate Court committed an error of record by ignoring two documents i.e. lease deed granted in favour of the Plaintiffs father vide Ext. 3 and 4. Referring, to the said documents, learned Counsel submitted that under Ext. 3 the disputed plot covering an area of 35 decs. had been leased out in favour of the father of the Plaintiff and in Ext. 4 the undisputed plot No. 4183 covering an area of 1 acre 52 decs, had been leased out in favour of the father of the Plaintiff. The lease granted in favour of the Defendant No. 1 was also filed indicating that the Ex-landlord had granted lease of Ao. 0.35 decs out of plot No. 4183 in his favour. According to Miss Panda, there was no reason for the lower appellate Court to disbelieve the aforesaid three documents and come to a finding contrary to what the trial Court found. She also referred to the evidence of some of witnesses and submitted that the lower appellate Court committed gross error of record in misinterpreting the evidence while allowing the appeal. 8. Shri Padhi, learned Counsel appearing for the Respondents on the other hand supported the findings of the lower appellate Court on the ground that the lower appellate Court took into consideration the 3 lease deeds and found several discrepancies in the said documents and accordingly did not rely upon the same. Referring to the evidence on record also Shri Padhi submitted that the lower appellate Court has not committed any error of record by coming to a finding that neither the suit plot had been leased in favour of the Plaintiffs father nor the Plaintiffs were ever in possession of the same. 7. Referring to the evidence on record also Shri Padhi submitted that the lower appellate Court has not committed any error of record by coming to a finding that neither the suit plot had been leased in favour of the Plaintiffs father nor the Plaintiffs were ever in possession of the same. 7. From the pleading of the parties and evidence adduced on their behalf appears that the dispute relates to Ao. 0.35 decs, of land covered under plot No. 3764. The question that arises for consideration is as to whether the said plot had been leased out in favour of the father of the Plaintiff by Ex-landlord or in favour of Defendant No. 1 by the Ex-landlord. Admittedly, there is no document on behalf of the Defendants on record to show that the said suit plot had been leased out in favour of the father of the Defendant No. 1 whereas Ext. 3 is the document which indicates that the Ex-landlord had granted lease of the said plot in favour of the father of the Plaintiff. Other two documents in Ext.4 are not relevant for the purpose of the case since plot No. 4183 is not in dispute. However, reference has to be made to the said documents for the purpose of finding out whether the case of the Plaintiff is correct or not. In order to prove their stand the Plaintiffs have produced Ext. 4 to show that the father of the Defendant No. 1 had been granted lease of AO. 0.35 decs, of land out of plot No. 4183 and not out of plot No. 3764. Shri Padhi, learned Counsel appearing for the Respondents in this connection submitted that if lease was granted in respect of AO. 0.35 decs, out of plot No. 4183 in favour of the father of the Defendant No. 1, the same could not have been produced by the Plaintiff and there is no material on record to show as to how the said document came into possession of the Plaintiff. According to Shri Padhi, Ext.4 and Ext.3 have been manufactured for the purpose of the case. The lower appellate Court did not rely upon the said documents basically on two grounds. According to the lower appellate Court by the time the lease was granted, the zamindar had become major and therefore his power of attorney holder had no authority to grant lease. The lower appellate Court did not rely upon the said documents basically on two grounds. According to the lower appellate Court by the time the lease was granted, the zamindar had become major and therefore his power of attorney holder had no authority to grant lease. I am unable to accept such a view. So long * the power of attorney remains valid and the power of attorney holder has every right to do such act he is authorised to do under such power of attorney. It appears that all the three lease deeds are quite old and from the date mentioned in the deeds, it further appears that they are more than 30 years old. There is positive evidence on the side of the Plaintiffs is that after execution of the said documents the father of the Plaintiffs had been put in possession of Ao.0.35 decs, of land out of plot No. 3764 and 1 acre 52 decs from out of plot No. 4183. Their further case also find support from Ext. 4 which indicates that AO. 0.35 decs, out of plot No. 4183 had been leased out in favour of the father of the Defendant No. 1. Therefore, I find that there is consistency in oral and documentary evidence adduced on the side of the Plaintiff in support of their case. However, the Defendants have not been able to produce any evidence to show as to how the father of Defendant No. 1 came into possession of the disputed plot. Reliance is placed only on some rent receipts and the entry in the settlement record. Law is well settled that the settlement entries neither create nor extinguish title. The question of possession can be decided in favour of the Plaintiffs in view of the fact that not only oral evidence of possession is available but the same is supported by two lease deeds indicating possession over the said suit plot in favour of the father of the Plaintiff. Though ordinarily, this Court in exercise of. jurisdiction u/s 100 is not required to enter into the evidence keeping in view the grounds on which the appeal has been admitted and the manner in which the lower appellate Court dealt with the evidence, I felt it necessary to discuss the evidence. Though ordinarily, this Court in exercise of. jurisdiction u/s 100 is not required to enter into the evidence keeping in view the grounds on which the appeal has been admitted and the manner in which the lower appellate Court dealt with the evidence, I felt it necessary to discuss the evidence. Much reliance was placed by Shri Padhi on the evidence of P.W.3 and it was submitted that the said witness examined on behalf of the Plaintiffs in cross-examination has admitted that lease in respect of the suit plot had been granted in favour of the father of the Defendant No. 1. In this connection, the relevant portion of the evidence appearing in paragraph-10 of the deposition may be referred to. The admission of P.W.3 as indicated by Shri Padhy runs as follows: Raghunath Parida has taken lease for AO.0.35 decs, of land from the Ex-landlord out of the land purchased by them in auction sale 8. This evidence does not indicate, as to whether the AO.0.35 decs of land had been given in lease in favour of the father of the Defendant No. 1 from out of plot No. 3764 or from out of plot No. 4183. If it is accepted that AO. 0.35 decs, of land had been given to Defendant No. 1 on lease by Ex-landlord from out of plot No. 4183 the case of the Plaintiff appears to-be correct. There being no document at all to show that the aforesaid AO. 0.35 decs of land from out of plot No. 3764 had been leased out in favour of father of Defendant No. 1, I am inclined to accept the case of the Plaintiffs that the said piece of land had been leased out in favour of the father of the Defendant No. 1 from out of the plot No. 4183. 9. There is no dispute with regard to the finding of the trial Court that the Plaintiffs have been dispossessed forcibly by the Defendants after execution of the two sale deeds in favour of Defendants 2 to 9 on 19.01.80. 10. In view of the above, I do not find any reason to sustain the judgment and decree passed by the lower appellate Court. Accordingly, the appeal is allowed, judgment and decree of the lower appellate Court are set aside and judgment and decree of the trial Court are confirmed. Final Result : Allowed