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2007 DIGILAW 734 (ORI)

Kota Sundara Rao v. Vaisyaraju Sanyasi Raju

2007-09-20

P.K.TRIPATHY

body2007
JUDGMENT Heard further argument from both the parties, hearing is concluded and the judgment is as follows. 2. Judgment and decree dated 28.11.1981 of the Additional Munsif, Chhatrapur in Title suit No. 29 of 1978 and the confirm¬ing judgment dated 19.10.1985 of the learned Sub-ordinate Judge, Chhatrapur in Title Appeal No. 3 of 1983 are under challenge in this Second Appeal. At the time of admission of the appeal, Ground Nos. 3, 5 and 10 of the appeal memo were construed as the substantial questions of law. Those grounds read as hereunder : Ground No. 3 - That the Courts below committed material irregularity in admitting the certified copies of Exts. C and D particularly when the loss of the originals were not pleaded in the written statement. Ground No. 5 - That the learned trial Court dealt with the admissibility of the documents marked Z, Zz in the judgment and ordered them to be marked as Exts. C and D respectively. The learned Appellate Court failed to exercise his jurisdiction to consider the objections raised on the admissibility of the docu¬ments, only on the ground that plaintiff-appellant has not preferred any revision against such orders in respect of marking of documents; and such orders became final and not open for challenge. It failed to notice that admissibility of these docu¬ments was not decided separately and the appellant did not have an opportunity to file a revision and that the appellant is competent to challenge the admissibility of them in Appeal. Ground No. 10 - That the learned lower Appellate Court’s finding that as no specific prayer for declaring title and possession over Ac. 0.19 dec. made in the plaint, the plain¬tiff is not entitled to such relief, is against law. It should have at least given a part decree for Ac. 0.19 dec. of land in favour of the plaintiff. 3. The disputed property was appertaining to Survey No. 1079/3 measuring Ac. 0.58 decimals and Survey No. 1079/5 measuring Ac. 0.04 decimals, i.e. in total Ac. 0.62 decimals. The said land in the Record of Right published in March, 1976 were recorded as Plot Nos. 2627, 2628, 2629 and 2630 under Khata No. 840 in Mouza Sikiri under Hinjili Police Station. The following genealogy shows inter se relationship between the plaintiff and the defendants. 0.04 decimals, i.e. in total Ac. 0.62 decimals. The said land in the Record of Right published in March, 1976 were recorded as Plot Nos. 2627, 2628, 2629 and 2630 under Khata No. 840 in Mouza Sikiri under Hinjili Police Station. The following genealogy shows inter se relationship between the plaintiff and the defendants. Onarasi V. Amayee K. Apallama (eldest daughter) (Younger daughter) V. Sanyasi Raju K. Sundara Rao (Defendant) (plaintiff) 4. Onarasi is the grandmother of the plaintiff and the defendant. Admittedly she was the recorded tenant of the above-noted disputed suit land. Plaintiff claimed right, title and possession of the suit land as against the defendant on the strength of a registered deed of sale executed in his favour by Onarasi on 13.05.1977. Plaintiff stated that defendant threatened him and disturbed his possession. His further case is that Onarasi remained in possession of the suit land through tenants and subsequently from the year 1963 by undertaking self-cultivation and entrusting the cultivation to the defendant and that, after the sale transaction, plaintiff is the owner of the property. Accordingly he filed the suit for recovery of possession. Defendants filed a written statement, inter alia pleading that in 1944 under Registered Sale Deed, Ext. C, Oranasi sold the suit land in favour of his mother and thereafter the family of the defendant possessed the same with right, title and interest. In the year 1970, a partition was effected between him and his brother, and in that partition the suit land was allotted to his share. That partition deed was also registered. Ext. D is the certified copy of the said partition deed. 5. On the basis of the rival pleadings, the trial Court framed the following issues : Issues 1. Whether the plaintiff has any right and title over the suit land ? 2. Whether the plaintiff was ever in possession of the suit land ? 3. Whether the defendant has right, title and possession over the suit land ? 4. Whether the sale deed of the plaintiff is binding on the defendant ? 5. Is the suit maintainable ? 6. To what relief, if any, the plaintiff is entitled ? He took up Issue No. 3 as the key issue to decide the dispute. In course of hearing, plaintiff examined the grandmother Oranasi as P.W.1 and himself as P.W.2. 4. Whether the sale deed of the plaintiff is binding on the defendant ? 5. Is the suit maintainable ? 6. To what relief, if any, the plaintiff is entitled ? He took up Issue No. 3 as the key issue to decide the dispute. In course of hearing, plaintiff examined the grandmother Oranasi as P.W.1 and himself as P.W.2. He relied on the Registered Sale Deed of the year 1977 - Ext. 1, the R.O.R. - Ext. 2, Zamabandi Patta - Ext. 4, Cist Receipt dated 18.05.1978 - Ext. 3 and office copy of the Pleader’s Notice - Ext. 5. Defendant examined himself as D.W.1 and three other witnesses as D.Ws. 2 to 4 besides relying on the above noted Exts. C and D and the Cist Receipt - Ext. A series and the order of mutation - Ext. B. 6. The trial Court did not admit Exts. C and D at the stage of hearing, but considered the case of the parties for taking a decision on acceptance or otherwise of the said docu¬ments as secondary evidence and accordingly both the parties addressed the Court not only on the merit of the case but also on admissibility of those documents and the consequences thereof. While considering Issue No. 3, learned Addl. Munsif recorded the finding that Ext. C being the certified copy of 30 years’ old document, such document cannot be admitted by dispensing with the formal proof. In that respect, as against the citations made by the defendant, learned Munsif placed reliance on the decision in the case of Harihar Prasad Singh and another v. Deonarayan Prasad and others, AIR 1956 SC 305 . Thereafter learned Munsif considered alternative argument of the defendant for acceptance of the said documents under Section 65, read with Section 79 of the Evidence Act. In that context, he found the citations relied on by the plaintiff to be not applicable. He placed reliance on the case of Kamal Lochan Pujhari and another v. Mitrabhanu Biswal and anoth¬er, 1966 CLT 343, and being satisfied about lying proper founda¬tion for adducing secondary evidence, decided to consider marking of those documents as Exhibits subject to proof of the same. Thereafter learned Munsif discussed the oral evidence of D.Ws. 2 and 3 together with the evidence of D.W.1 and Exts. Thereafter learned Munsif discussed the oral evidence of D.Ws. 2 and 3 together with the evidence of D.W.1 and Exts. C and D and found that both the documents were properly proved relating to execution and registration. Accordingly the certified copies were marked as Exts. C and D. Learned Munsif then considered the effect of those documents and held that the sale deed of the year 1944 though denied by P.W.1 and the plaintiff, but that document proved alienation of the property by Oranasi in favour of mother of defendant No. 1 and possession of the suit land by the defend¬ant’s family till partition in the year 1970 through Registered Partition Deed - Ext. D. Accordingly learned Munsif found that Oranasi had no title with her in 1977 to alienate the property in favour of the plaintiff under the Registered Sale Deed - Ext. 1. Accordingly he decided the remaining Issues and dismissed the suit of the plaintiff. 7. Learned Sub-ordinate Judge, Chhatrapur as the first appellate Court, rejected the contention of the plaintiff-appellant and upheld the decision of the trial Court. While doing so, leaned Sub-Judge recorded the finding that since the appel¬lant did not prefer any revision against the order passed for accepting Exts. C and D and marking them as Exhibits, therefore, plaintiff had missed the opportunity to challenge that order. In course of submission, while pressing Ground No. 5 as one of the substantial question of law, learned counsel for the plaintiff-appellant criticizes that finding. Learned counsel for the de¬fendant-respondent does not oppose to that criticism in view of the fact that marking of the document was considered in the process of delivering the judgment and therefore plaintiff had virtually no opportunity to prefer a revision against that order. Be that as it may, learned counsel for the defendant-respondent argues that by setting aside that finding of the first appellate Court, the case at best comes to the stage of consideration of validity of the order in accepting Exts. C and D in evidence, which is covered by Ground No. 3. Learned counsel for the appel¬lant does not dispute to that submission. 8. So far as Ground No. 3 in the Second Appeal and correctness of the decision on accepting the Exts. C and D in evidence, which is covered by Ground No. 3. Learned counsel for the appel¬lant does not dispute to that submission. 8. So far as Ground No. 3 in the Second Appeal and correctness of the decision on accepting the Exts. C and D are concerned, on perusal of the finding recorded by the trial Court, this Court finds no illegality in appreciating the fact and law for recording such a finding. Learned counsel for the appellant also argues that he has no other citations other than the cita¬tions relied on in the trial Court to be relied in support of the claim of non-acceptance of such documents in evidence. It has been clearly stated by learned Munsif and rightly so that in pleadings a party is to plead facts and not evidence and that, execution and registration of sale deed in 1944 and partition and registration of the partition deed in 1970 has been pleaded by the defendant and therefore non-mentioning the non-availability of the original document does not amount to absence of pleading so as to disentitle the defendant to rely on the certified copy to lay foundation for secondary evidence and to tender such secondary evidence in support of his claim. As noted above, the reasons assigned by the trial Court being in accordance with the provision of law as well as the ratio in the case of Kamal Lochan Pujhari (supra), therefore, that finding of the trial Court is not to be disturbed. Thus the plaintiff does not get any respite from the rigour of the impugned judgment on the aforesaid ground. 9. Then comes Ground No. 10. In that respect there is no finding by the trial Court, but in the lower appellate Court it was argued that under Ext. C an area of Ac. 0.39 decimals out of Ac. 0.58 decimals was sold to the mother of the defendant and therefore, the remaining Ac. 0.19 decimals of land from that Survey Number was still available with Oranasi to be transacted with the plaintiff. Learned Sub-ordinate Judge rejected that claim of the plaintiff on the ground that no such plea was ad¬vanced in the plaint. 0.39 decimals out of Ac. 0.58 decimals was sold to the mother of the defendant and therefore, the remaining Ac. 0.19 decimals of land from that Survey Number was still available with Oranasi to be transacted with the plaintiff. Learned Sub-ordinate Judge rejected that claim of the plaintiff on the ground that no such plea was ad¬vanced in the plaint. Obviously that was a mistaken finding in as much as when the plaintiff has claimed the entire suit property, if his claim fails with respect to a portion out of that, that does not disentitle him to get the relief with respect to the remaining area. Learned counsel for the appellant thus vehemently argues that when Ext. C does convey the title nor there is any evidence that the entire land was delivered in possession of the defendant’s mother on execution of the sale deed in the year 1944, therefore, plaintiff is entitled to a decree for that Ac. 0.19 decimals. Learned counsel for the defendant-respondent on the other hand argues that though Ext. C indicates the sale transaction minus that Ac. 0.19 decimals, but it is the consist¬ent evidence from the side of the defendants that defendant’s mother and her family members possessed the entire suit property. A deed of partition Ext. D was registered in 1970 allotting the entire Ac. 0.62 decimals of land in favour of the defendant and the Mutation Court also allowed mutation in his favour on the basis of possession of the defendant. Accordingly learned counsel for the defendant-respondent argues that when defendant has pleaded for title on the basis of the documents, registered sale deed of the year 1944 and also alternatively claimed title on the basis of adverse possession, therefore, defendant’s claim of title through adverse possession with respect to that Ac. 0.19 decimals is clearly made out. Evidence on record supports the claim and contention of the defendant-respondent. Under such circumstance, plaintiff is not entitled to a decree for even those Ac. 0.19 decimals of land. 10. For the reasons indicated above, there is nothing to interfere with the impugned judgment and decree and accordingly the Second Appeal is dismissed. Keeping in view the nature of the dispute and the inter se relationship between the plaintiff and the defendant, parties are directed to bear their respective costs of litigation all throughout. Appeal dismissed.