Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 680 (ORI)

Basanti @ Basantirani Jena v. State of Odisha

2015-12-03

D.DASH

body2015
JUDGMENT This appeal has been filed against the judgment and decree passed by the learned Civil Judge (Sr. Division), Jaleswar in R.F.A. No.23 of 2011.the predecessor-in-interest of the present appellants as the plaintiff had filed the suit for declaration of right, title and interest over the suit land with further prayer for declaration that the preparation of the record of rights in the major settlement is wrong and erroneous. Ultimately, the suit having been dismissed, an appeal had been carried and that has also been dismissed. So, the present appeal has been filed under Section 100 of the Code of Civil Procedure. 2.For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3.Plaintiffs case is that the suit land was Anabadi land of the then Zamindar of the area, namely, Gokul Prasad Jena and others. One Gobinda Chand of village Budhakusumi was granted lease of the suit land for the purpose of cultivation in the year, 1942 and it was evidenced by one unregistered amlanama patta. During abolition of the zamindari estate, the then Zamindar had submitted a Rafa in the name of the said Gobinda and basing on that the tenant ledger was opened and rent was realized by the State. It is also the case of the plaintiff that while Gobinda was the owner of the suit land, he had his son sold land measuring Ac.0.49.5 dec. out of Ac.1.04 dec. on the southern side recorded under C.S. p;lot No.332 and Ac.0.5 dec. under C.S. plot No.337 to one Rama Chandra Marandi and delivered possession of the same to him on the same day. They also sold the other portain of that C.S. Plot No.332 to one Phulray Murmu followed by delivery of possession. Both the purchasers when were in possession of the said land those to the plaintiff by two registered sale deeds dated 21.6.1968 having obtained necessary permission from the competent authority under the O.L.R. Act in O.L.R. Nos.608 and 610 of 1968 as the vendors belonged to the members of the scheduled tribe. Thus, the plaintiffs claim to be the absolute owner of the said land measuring Ac.1.09 dec. which has later on reduced by Ac.0.05 dec. It is stated that the land being reduced by Ac.0.05 dec. rest Ac.,0.04 dec. Thus, the plaintiffs claim to be the absolute owner of the said land measuring Ac.1.09 dec. which has later on reduced by Ac.0.05 dec. It is stated that the land being reduced by Ac.0.05 dec. rest Ac.,0.04 dec. has been wrongly recorded in the name of the State under Rakhit Khata No.186 with Kisam as Jungle and Gochara. However, it is pleaded that the said land actually is of kisam Sarada-III and has been in cultivable possession of the plaintiff. This wrong recording having been noted, the plaintiff after serving notice under Section 80 of the Code of Civil Procedure filed the suit after having waited for the required period and as no response came from the side of the State. 4.The defendant in the written statement contested the claim of the plaintiff. The factum of grant of lease is denied, as also the opening of the tenant ledger and collection of rent. The sales as averred by the plaintiffs said have been made first in favour of Rama Chandra and Phulray and then in his favour are also challenged. It is asserted that the recording in the settlement operation is right. The trial Court on such rival pleadings framed six issues and has rightly taken up issue no.3 and then issue no.4 for decision. Issue no.3 is as to whether Gobinda was the tenant under the then Zamindar and later on under the State whereas issue No.4 concerns with the sale of the land by Govinda to Rama Chandra and Phulray and thereafter in favouring of the plaintiff by those Rama Chandra and Phulray which in turn thus concerns with the right, title of the plaintiff over the land in suit. 5.Upon analysis of evidences in the backdrop of the pleadings, issue no.3 has been answered in favour of the plaintiff. It has been held that the then Zamindar had delivered possession of the suit land to Gobinda and also that Gobinda was a tenant under the then Zamindar and as such was in possession of the said land all along and then he remained as a tenant under the State being recognized as such upon opening of the tenancy ledger and payment of rent as well as its due acceptance. Next in respect of issue no.4, the trial Courts’ categorical finding is that the recording of the land as made in the M.S. R.O.R. is wrong. Next in respect of issue no.4, the trial Courts’ categorical finding is that the recording of the land as made in the M.S. R.O.R. is wrong. It has been specifically found out that an error has been committed by the settlement authority in recording the suit land in the name of the State under Rakhit Khata. With these findings now going to the other technical issues as regards the maintainability of the suit, lack of cause of action and law of limitation standing on the way of the suit, the answer however, has been given against the plaintiff holding the suit to be not maintainable being hit under Section 34 of the Specific Relief Act as there remains no prayer seeking consequential relief such as the relief of confirmation of possession. It has next been said that the suit having not been filed within three years from the date of publication of the record of right, the same is barred by limitation. So, with all the finding of right, title and interest having been rendered in favour of the plaintiff, he has been non-suited for the aforesaid reasons. 6.The lower appellate Court being moved has again gone to affirm all those findings of the trial Court on those factual issues. Going one step ahead, the lower appellate Court has of course set-aside the finding of the trial Court that the suit is not maintainable being hit under Section 34 of the Specific Relief Act but despite of the same it has refused to grant the relief to the plaintiff as because, according to him, the suit is not maintainable being not instituted in adherence to the provision of Article 58 of the Limitation Act. 7.The appeal has been admitted on the following substantial question of law: “ Whether the Courts below erred in law by dismissing the suit of the plaintiff on the ground of limitation that it has not been filed within a period of three years from the date of publication of the record of right under the Orissa Survey and Settlement Act or within the limitation under article 58 of Indian Limitation Act.” 8.Challenging the findings of the trial Court the State has not filed any cross-objection in the appeal before the lower appellant Court nor any such step has been taken in the present second appeal. Therefore, the findings on issue nos.3 and 4 as recorded by the trial Court and affirmed by the lower appellate Court are no more open to challenge here in this appeal. The position is fairly and rightly conceded by the learned Additional Government Advocate in course of hearing of this appeal. 9.Now, coming to the substantial question of law as framed in this appeal with which we are presently concerned, the learned counsel for the appellant submits that the suit being one, based on title and having been filed within a period of 12 years, Article-58 of the Limitation Act does not get attracted on the face of the categorical findings of the Courts that the appellants are in possession of the suit land having their right, title and interest over the same. It is also his submission that when a person is in possession of the immovable property on the strength of his right, title and interest, merely because, the erroneous record of right is published and as such is allowed to stand for a period of more than three years from its publication, it is not the law that the right, title and interest of the person concerned gets extinguished thereby and he thereby looses the right to institute the suit for declaration of right, title and interest. It is his submission that when the Civil Court declares the right, title and interest of a person and finds the possession of the property with that person, the erroneous record of right is pushed to oblivion thereby. The person i.e. title holder in possession cannot thereby loose the right to institute the suit for declaration of right, title and interest if he does not file the suit within three years from said publication of record of right which is found to be erroneous in not recognizing the right, title, interest and possession of the person and Article 58 of Limitation Act is not attracted in that event to non-suit the person. It is his submission that when the Court declares the right, title and interest of the person and finds the possession of the property with that person, the declaration with the record of right is erroneous in recording the land in favour of someone is just consequential. It is his submission that when the Court declares the right, title and interest of the person and finds the possession of the property with that person, the declaration with the record of right is erroneous in recording the land in favour of someone is just consequential. In view of the above, he contends that the substantial question of law is required to be answered accordingly in favour of the plaintiff and the suit of the plaintiff is thus to be decreed. 10.Learned Additional Government Advocate, however, submits in favour of the finding rendered by the lower appellate Court that in view of the provision contained in Article 58 of the Limitation Act, when the suit has not been filed within the prescribed period, it is barred by limitation. 11.Law is fairly well settled that in a suit based on antecedent title, when the Court finds the same in favour of the plaintiff and also finds his possession to have been there over the suit land, even if he does not call in question the wrong recording of the suit land in the settlement operation within a period of three years as prescribed in Article 58 of the Limitation Act and also as prescribed in Section 42 of the O.S.S. Act, he cannot be shown the door of exit and cannot be non-suited on that ground, on the face of the settled law that the entry in the record of right does neither create title in favour of someone who in fact does not have it nor does extinguish the title of the true owner in respect of the said land. So, in that view of the matter when the title holder continues to remain in possession of the property despite of said wrong recording, his non-filing of the suit within a period of three years from the date of publication of the said erroneous R.O.R. cannot extinguish his right, title and interest over the property and as such he does not become disentitled to continue to be in possession as of that. The aforesaid discussion and reasons provide the answer to the substantial question of law accordingly and it runs in favour of the plaintiff-appellant. 12.In the result, the appeal stands allowed and in the facts and circumstances of the case without cost. The aforesaid discussion and reasons provide the answer to the substantial question of law accordingly and it runs in favour of the plaintiff-appellant. 12.In the result, the appeal stands allowed and in the facts and circumstances of the case without cost. The suit filed by the plaintiff is decreed declaring right, title and interest over the suit property as also their possession with further consequential declaration that the entry in the record of right in respect of the said suit land is erroneous. Appeal allowed.