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2015 DIGILAW 358 (ORI)

Lalita Mahananda v. Rajaram Luhar

2015-06-17

D.DASH

body2015
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Additional District Judge, Padampur in R.F.A. No. 32/3 of 2006-2007 confirming the judgment and decree passed by Civil Judge (Sr. Division), Padampur in C.S. No. 32 of 2005. 2.For the sake of convenience, in order to avoid confusion and bring clarity, the parties hereinafter have been referred to as they have been arraigned in the Court below. 3.Facts necessary for the purpose are as follows:- The case of the plaintiff is that one Rajan Luhar and his brother Purna Luhar were in possession of the land appertaining to Hamid Settlement Plot No. 220 out of Khata No. 26 of village Salepali since long. The land was Government land. In the year 1972, Tahasildar Padampur initiated Encroachment Case No. 1534 of 1972 against them. and in that case land measuring Ac. 2.22 decimals out of total land in plot no. 220 was settled in the name of Rajan Luhar and subsequently the Rayati patta was issued in his favour, corresponding to M.S. plot No. 295. Similarly land of about Ac. 4.37 decimals under plot No. 220 was settled in the name of Purna Luhar and he was granted with the patta. But those lands could not be recorded in major settlement in the name of Rajan and Purna and it remained in the name of the State under Avadjogya Anabadi khata with note of possession in favour of the Rajan and Puma. Rajan died. leaving .behind his widow Chinamali and son Balabhadra Luhar who are dead since 1998 and 2000 respectively. Thus, the land being settled in the name of Rajan and Purna, they remained as owner in possession of the same all through despite of such recording in the name of the State in the Major Settlement and during continuation of such state of affairs Chinamali, Balabhadra and Purna sold away the land of Ac. 2.55 decimals out of plot no. 295 to the plaintiff for consideration of Rs. 40,000/- and executed a registered sale-deed on 31.01.1996. It is also stated that the delivery of possession of the suit land was given to the plaintiff who came into possession of the said property as its owner and continued to remain as such. 2.55 decimals out of plot no. 295 to the plaintiff for consideration of Rs. 40,000/- and executed a registered sale-deed on 31.01.1996. It is also stated that the delivery of possession of the suit land was given to the plaintiff who came into possession of the said property as its owner and continued to remain as such. It is stated that the plaintiff and her husband had decided to settle over that suit land and for that reason they had purchased the land in suit. The plaintiff,s husband working as Revenue Inspector of Paikamal Tahasil was, transferred to Sohela in the year 1998. So they all had to leave Paikamal and thus, could not come to cultivate the suit land personally. For that, they had authorized and allowed one Dayanidhi Mahananda who is the sister’s husband of the plaintiff to cultivate the suit land on her behalf. Accordingly, Dayanidhi cultivated the suit land. The plaintiff thereafter in the year 2001 applied for mutation of the suit land. Though there was favourable report of the Revenue Inspector with regard to her purchase and possession, however on account of her absence, the mutation proceeding got dismissed for default. Again in the year 2004 she filed another mutation proceeding however that was rejected on the ground that the transaction being prior to the publication of ROR of Major Settlement, the same cannot be corrected in the mutation proceeding, It is next stated that the defendant claiming to be a relation of Rajan Luhar creating disturbance over the suit land after the death Chinamali wife of Rajan and Balabhadra son of Rajan, the defendant in the year 2002 forcibly trespassed over the same without having any right title and interest over the suit land. The plaintiff thus claims to have acquired valid right, title and interest over the same by her purchase. It is stated that in view of the settlement of land in favour of the venders of the plaintiff being valid by issuance of patta recording of the land in the name of State in ROR of Major Settlement is of no significance and that cannot stand on the way of her title over the land in suit. Therefore, the explanation is given that the State is not a necessary party. Therefore, the explanation is given that the State is not a necessary party. 4.The defendant in the written statement admits the possession of the suit land by Rajan and Purna and also issuance of Rayati patta in their favour as per order in the encroachment case of the year 1972. It is also stated that the recording of the suit land in the ROR of Major Settlement as completely wrong. The defendant has come up with a case that after death of Rajan, his wife Chinamali and son Balabhadra possessed the suit land but however, he stoutly denies the sale to have been made by them to the plaintiff as averred in the plaint and the other aspects relating to payment of consideration, execution of sale-deed the delivery of possession are all so denied. It is stated that the Balabhadra was deaf, dumb and idiot and the Chinamali was illiterate and they had no capacity to sale or go for the transaction. The defendant asserts that the said sale-deed projected as the documents of title by the plaintiff is fraudulent one and created for the purpose. Next it is stated that after death of Rajan, defendant was taking care of Chinamali and Balabhadra and he has been occupying the suit land after the death of Chinamali and Balabhadra, and as such is continuing to remain in possession as before. It is further stated that encroachment cases were instituted against him because of such possession. 5.The trial Court framed as many as eight issues and having taken those for decision has rendered the following findings. (i) that the plaintiff has the cause of action to file the suit; (ii)that the suit is bad for non-joinder of necessary party i.e., State of Odisha; (iii)that the plaintiff has purchased the suit land; and that the execution of Ext. (i) that the plaintiff has the cause of action to file the suit; (ii)that the suit is bad for non-joinder of necessary party i.e., State of Odisha; (iii)that the plaintiff has purchased the suit land; and that the execution of Ext. 1, the sale deed by Chinamali, Balabhadra and Purna is not believable; and so also the factum of delivery of possession on the basis of the same and the said transfer is illegal since the plaintiff's vender was in illegal possession of the suit land as per the note in the ROR of Major Settlement; (iv) that the venders of the plaintiff has no title over the suit land; and thus, by even accepting the said purchase, the plaintiff has derived no right, title and interest over the suit land; and (v) that the plaintiff was never in possession of the suit land; In view of above findings, the suit has been dismissed. 6. The plaintiff being aggrieved by the said dismissal carried an appeal. The lower appellate Court has again gone to hold that the venders of the plaintiff had no saleable right to execute the sale-deed and as such the plaintiff has not acquired any right, title interest over the suit land even by way of such sale. Since, Chinamali, Balabhadra and Purna are not the recorded tenants as per record of right of Major Settlement; and they could not have conveyed the title to the purchaser plaintiff. It has further been held that the State of Odisha is a necessary party. With above reasons the lower appellate Court dismissed the appeal and thus confirmed the dismissal of the suit filed by the appellant. 7.The appeal has been admitted as following substantial questions of law:- (1) Whether the Courts below in view of rival case projected by the parties have rightly decided the question as to whether the defendant has the locus standi the question of registered sale-deed executed by the Chinamali, Balabhadra and Purna Luhar on 31.01.1996 in favour of the plaintiff? (2) Whether the Courts below have properly construed the documents Ext. 1 along with Ext. 5? (2) Whether the Courts below have properly construed the documents Ext. 1 along with Ext. 5? 8.Learned counsel for the appellant submits here is a case where unnecessarily stress has been given to the Record of Right of Major Settlement as if its final and conclusive proof of title as on the date of publication, when as per the admitted case of the parties, the land was settled in the name of Rajan and Puma Luhar by order passed in Encroachment Case which have been marked as Ext. 2 and 3, the final order and the patta. He contends that finding of the lower appellate Court that the State of Odisha is necessary party is wholly unsustainable in the eye of law it’s even contrary to the foundation laid by the defendant in the pleading. In that view of the matter, he proceeds to submit that the first question arises as to whether defendant is having the Locus-standi to call in question, the registered sale-deed standing in favour of the plaintiff as proved and marked Ext. 1 stated to have been executed by Chinamali, Balabhadra and Purna. According to him, unless the defendant establishes a case that he has the right over the property in any manner or the right to possess the same on his own, he cannot raise any objection to the registered sale-deed on the ground of non-execution, non-payment of consideration and non-delivery of possession pursuant to the same. He further submits that the defendant has absolutely no specific case of his own that he has semblance of right over the suit land and he has just projected a case that being asked by the owners as he was looking after, he has remained in possession. Of course on merit, he submits that the sale-deed in question having been proved by plaintiff establishing due its execution by Chinamali, Balabhadra and Purna, the title over the property ought to have been held to have passed in favour of the plaintiff. According to him, the Courts below though have stated so much about the incapacity of Balabhadra and Chinamali, nothing is stated about the incapacity of Purna, the other executant. According to him, the Courts below though have stated so much about the incapacity of Balabhadra and Chinamali, nothing is stated about the incapacity of Purna, the other executant. It is next contended that the Courts below are not right in saying that the sale having been executed by an illiterate woman and an idiot its execution is not believable when the other facts in support of it are not forthcoming in evidence. Therefore, he contends that the Courts below have made totally an erroneous approach in deciding the suit. According to him, it being the admitted case that the property was of Purna and Rajan and on the death of Purna, his wife Chinamali and Balabhadra succeeded to his interest and thus all the three became the owners, the Court should have gone to decide as to whether on the face of the evidence proving Ext. 1 the defendant as any Locus-standi to challenge the said Ext. 1, on all these grounds as projected in the written statement. Then if the answer would have been in the negative, the Courts below would have no other option but to decree the suit as the defendant has no other alternative case of competing title and the right to possess the suit land as such. Thus, he submits that this course be adopted in this appeal so as to judge the fate of the suit. 9.Learned counsel for the respondents submits all in supports of the finding of the trial Court as well as lower appellate Court. According to him, the defendant being in possession of the property in question as on the date of suit, his Locus-standi remains established. He further contends that the plaintiff having not been able to discharge the burden of proof that she has acquired title by virtue of said sale-deed Ext. 1 by leading clear, cogent and acceptable evidence as regards the execution and other factors, the judgment of dismissal of the suit is not liable to be upset. 8. On above rival submission, at the cost of repetition, it is felt apposite to describe the admitted facts. The property originally belonged to the State and in the encroachment case of the year 1972; the same was settled in the name of Rajan and Purna. Thereafter, in the major settlement record, the same again was recorded in the name of the State under Abadjogya Anabadi khata. The property originally belonged to the State and in the encroachment case of the year 1972; the same was settled in the name of Rajan and Purna. Thereafter, in the major settlement record, the same again was recorded in the name of the State under Abadjogya Anabadi khata. The plaintiff has proved the order passed in encroachment case Ext. 2 and the patta Ext. 3, these are remaining unchallenged. In view of above, in my considered view, the Courts below have unnecessarily laid much emphasis upon the major settlement record by holding the State to be a necessary party to the suit when that record also to a great extent supports the case that the land was in possession of the settlees as to that, effect a note of possession in the remark column finds mention. Therefore, such findings that the State is a necessary party and that the venders had no saleable right and they could not have conveyed the title of the suit land in favour of the plaintiff do not stand to legal scrutiny. 10.The plaintiff in this case has led both oral and documentary evidence in support of his purchase of the suit land. P.W. 1 has stated about the said writing of the deed; the consideration involved and to have been paid in his presence. He has also stated that contents of the sale-deed was read-over and explained to the venders who admitting those to have been correctly written had put their LTIs. This witness is a witness to the sale-deed and a signatory and in proving, Ext. 1, the sale-deed has also proved his signature as Ext. 1/A. It is also his evidence that on the next day of the execution, the registration was made and there was delivery of possession. P.W. 2 has again deposed as regards the said sale-deed and he is another witness to the same. Both of them have deposed on oath about the registration being done at Sonepur on the next day of execution of deed which is also the fact, as it reveals from Ext. 1. Now when such is the evidence led by the plaintiff, the settled position of law comes into play that a person who challenges the such registered sale-deed must first prove his locus-standi to do so. 1. Now when such is the evidence led by the plaintiff, the settled position of law comes into play that a person who challenges the such registered sale-deed must first prove his locus-standi to do so. The Courts below ought to have gone to look into that aspect first but as it is seen; the same has been totally lost sight of. In the instant case, the defendant is simply, claiming to be in possession of the property after the death of Chinamali, Balabhadra and Purna. It is also not stated that as to how and what right he has to possess the same; either being the successor or on the basis of any conveyance etc. Therefore, this Court is unable to accept the approach of the Courts below by proceeding to entertain such challenges made by the defendant to the said sale-deed. The position of the defendant in view of his own pleading is nothing but that of a trespasser. Rather by leading evidence that encroachment proceeding was initiated against him, and that he was assessed with fine which he has paid when the records shows that the land in question could not be settled in his name and thus was refused the defendant can will be said to have placed proof in support of his possession as that of a trespasser. The report that he has proved in the case go to show that he is in possession of the property from the year 2000 or so and that too he had paid the fine vide Ext. B, D, I and J. The defendant has also not come up with a case that he has acquired title over the suit by way of adverse possession. Therefore, it is found that the Courts below have committed apparent error in dismissing the suit. The substantial questions of law formulated are accordingly answered and the judgment and decrees passed by the Courts below are held, liable to be set aside which is hereby done in. 8.In the result, the appeal stands allowed and the suit is decreed for the relief claimed. In the peculiar facts and circumstances, the parties are to bear their respective cost of litigation throughout. Appeal allowed.