Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 614 (ORI)

Basanta Kumar Prusty v. Krupasindhu Sahu

2007-08-08

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : This is an appeal against the judgment and decree passed by the learned District Judge, Keonjhar in T.A. No.1 of 1985 confirming the judgment and decree passed by the learned Munsif, Keonjhar in T.S. No.34 of 1981. 2. The present respondents No.1 to 4 as plaintiffs, insti¬tuted the above noted suit for declaration of their right, title and interest over the disputed rooms standing on Ac.0.02 dec. described in Schedule ‘B’ of the plaint, for recovery of posses¬sion of the suit property, and for permanent injunction restrain¬ing the defendants 1 to 3 (who are the present appellant No.1 and proforma respondent Nos.5 and 6) from entering into the suit land. The case of the plaintiffs, in brief, was that the suit property mentioned in Schedule ‘A’ of the plaint was purchased by their father Nanda Sahoo from one Mathura Dei by registered sale deed dated 18.4.1961 and from that date they along with their father continued possession over that land and raised construc¬tion of three rooms over the aforesaid Ac.0.02 dec. of land mentioned in Schedule ‘B’. They alleged that the defendants forcibly entered into those rooms and started trading business in the two completed rooms with effect from 15.3.1981 for which the plaintiffs approached the local gentries for settlement. Such effort having failed, they filed the suit seeking the aforemen¬tioned reliefs. 3. Defendants in their written statement pleaded that the father of the plaintiffs, father of defendant No.2 and one Kolha Sahoo purchased separate piece of land from Mathura Dei by means of registered sale deeds on the same day, i.e, on 18.4.1961, but because the village map was not available, there was a mistake in plot Nos. noted in the sale deeds, which was discovered later on. They pleaded that after discovery of the mistakes, the father of the plaintiffs, father of defendant No.2 and Kolha Sahoo effected exchange of the lands in order to overcome the wrong plot numbers noted in the sale deeds. Defendants further pleaded that by virtue of such exchange they came into possession of suit Sched¬ule ‘B’ lands whereupon they constructed four rooms and used thereof those rooms as shops since 1980. According to them be¬cause the area is now developed and the price of the lands are rising, the plaintiffs with ulterior motive filed the suit to grab Schedule ‘B’ properties. According to them be¬cause the area is now developed and the price of the lands are rising, the plaintiffs with ulterior motive filed the suit to grab Schedule ‘B’ properties. Basing on the pleadings of the parties, the trial Court framed as many as seven issues and accepted oral and documentary evidence of the parties and on consideration of such evidence, it decreed the suit of the plain¬tiffs with the findings that the father of the plaintiffs pur¬chased the suit land, that there was no mistake in mention of the plot no. in the sale deeds, that the story of exchange putforth by the defendants is a myth, that the defendants are in forcible possession over the suit Schedule ‘B’ property without having any right, title and interest, and that the plaintiffs are the owner of plot No.825 and they have constructed the rooms thereon. Against the said judgment and decree, the defendants carried appeal. The 1st appellate Court confirmed the findings of the trial Court with the observation that the defendants-appellants failed to discharge their onus of proving the exchange of lands between the parties, that there was no mistake in the noting of plot numbers in the sale deeds, that there is no document or reliable evidence to support the plea of exchange of lands, that there was bar under Section 94 of the Evidence Act to accept the oral evidence to disprove the contents of Exts. 1 and B. Ag¬grieved by the said judgment and decree and the observation of the 1st appellate Court, the present appeal has been preferred. 4. At the time of admission of the present appeal, the following substantial questions of law were formulated for con¬sideration. (i) Whether in view of the dispute with regard to wrong mention of plot numbers in the registered sale deeds, Section 94 of the Evidence Act is applicable to the facts and circumstances of the case for proper adjudication ? (ii) Whether in the absence of the actual vendees to the disputed plot, the story of exchange of plots by the contesting parties will be properly determined ? (iii) Whether entry in the remarks column of the R.O.R. unless being rebutted loses its presumptive value ? Some additional grounds were also putforth later on, such as non-consideration of the plea of adverse possession and non-joinder of necessary parties, namely, other heirs of Nanda Sahoo. 5. Mr. (iii) Whether entry in the remarks column of the R.O.R. unless being rebutted loses its presumptive value ? Some additional grounds were also putforth later on, such as non-consideration of the plea of adverse possession and non-joinder of necessary parties, namely, other heirs of Nanda Sahoo. 5. Mr. N. C. Pati, learned counsel for the appellants submits that the 1st appellate Court went wrong in its observa¬tion that Section 94 of the Evidence Act stands as a bar for allowing evidence to rebut the contents of sale deeds, Exts.1 and B. According to him, the plea being wrong noting of plot num¬bers, the bar under Section 94 would not apply. He further con¬tends that in the remarks column of the R.O.R., the possession of the defendants has been noted and therefore, there was presump¬tion of possession and title in favour of the defendants, which was not rebutted by the plaintiffs; but the Courts below did not consider this aspect. Mr. Pati also contends that though there was plea of adverse possession by the defendants, the said plea was not specifically answered by the Courts below. His last contention is that non-joinder of all the heirs of Nanda Sahoo was fatal to the suit, but that aspect was ignored by the Courts below. According to him for the aforesaid reasons, the impugned judgment and decree should be set aside. 6. Mr. S. S. Das, learned counsel for the respondents, on the other hand, supports the impugned judgment and decree. He submits that all the issues raised by the defendants have been clearly answered by the Courts below and therefore, there is no lacuna in that regard. 7. Section 94 of the Evidence Act reads thus : “When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.” An illustration has also been given to this Section, which is reproduced hereunder : “A sells to B, by deed, “my estate at Rampur containing 100 bighas.” A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.” The illustration makes it further clear that if the language in a document is plain in itself and applies accurately to the existing facts, then evidence may to be allowed to prove that the contents meant otherwise. In the present case, admittedly the sale deed Ext.1 executed in favour of the father of the plain¬tiffs was in respect of Ac.0.62 dec. out of Ac.1.24 dec. of land in plot No.825. The parties including the contesting defendants admit that the above noted description is there in Ext.1. The defendants however, came up with the case that actually the lands sold to the father of the plaintiffs situated in another plot and that mention of plot No.825 on the sale deed was a mistake. When the language used in the document is plain and clear and it is admitted that plot No.825 has been noted in the sale deed, the matters squarely come within the embrance of Section 94 and the illustration given in that Section. The Courts below therefore, were not at all in legal error in observing that Section 94 operates as a bar and evidence cannot be allowed to show that the land sold was some other land. 8. Law is settled that the entry in the R.O.R. does not create any title or takes away any title and that the entry simply carries a presumption and such presumption is a rebuttable one. It is not in dispute that in the current settlement record the name of defendant No.2 has been noted in the remarks column against the disputed land, but the remark is to the effect that defendant No.2 is in forcible possession of that land. The plea of the defendant No.2 is that he came into possession of this land by means of exchange transaction after discovery of the alleged mistakes in the sale deeds. If that was so, then the noting in the remarks should have been normally that defendant No.2 is in possession of that land by virtue of exchange transac¬tion. The plea of the defendant No.2 is that he came into possession of this land by means of exchange transaction after discovery of the alleged mistakes in the sale deeds. If that was so, then the noting in the remarks should have been normally that defendant No.2 is in possession of that land by virtue of exchange transac¬tion. It is submitted by the learned counsel for the appellants that the father of the plaintiffs was attending the settlement proceedings, but he never raised any objection to this entry and therefore, the plea of exchange and right of defendant No.2 should have been believed. In this regard, it can be pointed out that no evidence was produced to show that the settlement author¬ities after giving due notice to the interested parties and after hearing their objection, if any, made this entry. There is even no evidence that the father of the plaintiffs was aware of such entry. In such a situation, there was no scope for the Courts below to presume the right, and title of the defendants No.2 over the disputed land. 9. In the additional ground the plea of non-joinder of other legal heirs of Nanda Sahoo has been taken. First of all, there was no pleading as who are the other legal heirs of Nanda Sahoo and if they had any conflict of interest with the plain¬tiffs. In such a situation, there was no scope for the Courts below to frame any issue or observe that the suit suffers from non-joinder of necessary parties. 10. There was a pleading from the side of defendant No.2 that he has acquired title over the suit land by way of adverse possession. Though no specific issue was framed in this regard, in issue No.4 the Courts below discussed about exchange and loss of title, if any, by the plaintiffs over the suit land. During discussion of this issue, the Courts have discussed the evidence and come to the conclusion that the defendants forcibly came into possession of the rooms standing on the suit land in the year 1980. The suit was filed in the year 1981. Obviously after the above finding, there was no scope to come to a conclusion that the defendants have acquired title by way of adverse possession. The suit was filed in the year 1981. Obviously after the above finding, there was no scope to come to a conclusion that the defendants have acquired title by way of adverse possession. The Courts below have exhaustively discussed the evidence and have come to the concurrent conclusion on the issues which are mostly factual in nature. The said concurrent findings on factual issues have to be honoured by the Court of 2nd appeal. Now, the legal questions raised in the Second Appeal have been answered against the appellants. So, this appeal is found to be without any merit and is dismissed on contest with cost. Appeal dismissed.