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2016 DIGILAW 184 (ORI)

Mangtu Domb v. Kanhei Bhotra

2016-03-03

D.DASH

body2016
JUDGMENT This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Nabarngapur in R.F.A. NO. 22 of 2003 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Nabarangpur in Title Suit No. 18 of 2000. 2.The appellants as the plaintiffs had filed the above noted suit setting aside the orders passed in the proceedings under Odisha Scheduled Area (Transfer of Immovable Property) Regulation, 1956 (hereinafter in short called, as Regulation –II of 1956) in OSATIPR Case No. 51 of 1998, 207 of 1998 and 208 of 1998 on 29.12.1999 and 25.01.2000 respectively by the Sub-Collector, Nabarangpur and for declaration of their title over the suit land. It is, their case that the suit land belonged to the father of original defendant no. 1 namely, Kuladhar Domb and it was so recorded in his name in the record of the Sabik Settlement. Kuladhar had one son namely, Lachman who died leaving behind his son Lakhmu, the original plaintiff no. 1. So, it is stated that after death Kuladhar and Lachman, the plaintiffs succeeded to the said properties and became the owners of the suit land and possessed the same. It is alleged that in the year 1971, Sukru Domb and his son falsely advanced a claim over the suit land and for that a Title Suit was filed by the original plaintiff no. 1 which was decreed in his favour and he got delivery of possession of the suit in Execution Case NO. 23 of 1972. The subject matter of said suit was the suit land together with other lands. It is next stated that the defendant who is a member of the Scheduled Tribe raised an objection in the settlement operation for recording of the suit land in his favour. And that objection having been illegally allowed, the record of right has been prepared showing him to the recorded tenant of the suit land. So, on that basis, he initiated the proceeding under the provision Regulation-II of 1956 and it is said that in those proceedings without any consideration, illegally orders were passed the order. 3.The defendant contested the suit. He claims that his father namely, Govinda had purchased the suit land from Lachman, the only son of the original recorded tenant Kuladhar and Lakhmu, the original plaintiff no. 3.The defendant contested the suit. He claims that his father namely, Govinda had purchased the suit land from Lachman, the only son of the original recorded tenant Kuladhar and Lakhmu, the original plaintiff no. 1 in the year 1955 by registered sale-deed and since then he was in possession of the same. Thereafter when the plaintiffs forcibly dispossessed the defendant, the proceedings under the Regulation-II of 1956 were initiated, wherein orders of restoration of the possession of the suit land have been passed and he has got the delivery of possession of the suit land pursuant to those orders. It is alleged that in spite of those orders since the plaintiffs again created disturbance in the peaceful possession of the suit land, a proceeding under Section 145 of Cr. P.C. was initiated and the land has been attached. It is his case that the order in Title Suit No. 09 of 1971 is not binding on him as he was not a party to it and there was never any physical delivery of possession of the suit land to the plaintiff no. 1 in any execution proceeding arising out of the suit at any point of time. The defendant further claims to have been paying rent to the State regularly being the absolute owner of the suit land. 4. The trial Court faced with above rival pleadings framed as many as eight issues and first of all has rightly gone to decide the legal tenability of the prayer for setting aside the orders passed in the proceedings under Regulation –II of 1956. Upon discussion of evidence, it has been found that plaintiff no. 2 being one of the opposite parties, there had entered appearance in those proceedings and was well aware of the same. The allegation of non-service of notice and decision in said Regulation-II proceedings as claimed to have been rendered behind the back of the plaintiffs have been negative. Referring to the decision reported in case of Puri-Konark Development Authority Vs. Ratna Bhadra and Others;* 94 (2002) CLT 95 and Braja Kishore Panda and Others Vrs. The allegation of non-service of notice and decision in said Regulation-II proceedings as claimed to have been rendered behind the back of the plaintiffs have been negative. Referring to the decision reported in case of Puri-Konark Development Authority Vs. Ratna Bhadra and Others;* 94 (2002) CLT 95 and Braja Kishore Panda and Others Vrs. Damodar Rout and Another;63 (1987) CLT 347, the trial Court having held that the plaintiffs having failed to establish that the order passed in those proceedings were in violation of principle of natural justice or that there has been gross procedural irregularity touching the root, the issue has been answered against the plaintiffs. As it appears next having not gone to put a stop there, the trial Court has further proceeded to answer issue no. 6 as regards the claim of title over the suit land by the plaintiffs. Relying upon Ext. B, the certified copy of the sale-deed produced and proved by the defendant which is of the year 1955 executed by Lachman and Lakhmu in favour of Gobinda, the father of defendant which has remained unchallenged for all these years, the claim of the plaintiffs as regards title over the suit land in the absence of any such evidence on that score as also on the face of Ext. A, the Hal record of right standing in the name of the defendant has been answered against the plaintiffs. For the above, the suit having been dismissed, the appellants being the unsuccessful plaintiffs had challenged the said dismissal carrying an appeal under Section 96 of the Code of Civil Procedure. 5.The lower appellate Court upon hearing has given stress upon the Ext. B, the sale-deed which has gone wholly unexplained and thus to have held the field for all these years and rather having been suppressed in the pleading, has finally accepted the case of the defendant about the purchase of the suit land. As regards the orders passed in proceedings Regulation-II of 1956, the lower appellate Court on going through the evidence has concluded that the plaintiffs have been not shown any material to establish that they were not given the opportunity of being heard in those proceedings. As regards the orders passed in proceedings Regulation-II of 1956, the lower appellate Court on going through the evidence has concluded that the plaintiffs have been not shown any material to establish that they were not given the opportunity of being heard in those proceedings. Thus it has been held that the orders are no more open to challenge before the Civil Court in view of the bar, when also the statutory provisions have not been shown to have not gone without being complied with in any manner or that the authorities have not acted in conformity with the fundamental principles of judicial procedures in view of all these, the appeal has been dismissed. Thus the appellant. Is before this Court in this second appeal under Section 100 of the Code. 6.Learned counsel for the appellants submits that the followings are the substantial questions of law:- (1) Whether the findings that the plaintiffs having not challenged the orders of the Sub-Collector on the ground of any procedural defect is sustainable in law in view of the fact that the specific pleadings remains that the Sub-Collector has improperly passed the final orders without affording them any opportunity which receives support from the evidence of P.W.1? (2) Whether the impugned judgments and decree are sustainable in view of the settled law that the bar of jurisdiction of the Civil Court to scrutinize the orders of the revenue Court depend on the facts of the case when in the instant case, the Sub-Collector has not acted in conformity with the fundamental principles of judicial procedure and has not considered the relevant documents? 7.Both the Courts below in view of issue framed on the above aspects have recorded a concurrent finding that the plaintiffs have not able to show that the orders passed in those proceeding under Regulation –II of 1956 are behind their back, without affording them any opportunity. Admittedly, the plaintiffs have not challenged those order in the forums prescribed under Regulation-II of 1956 by filing appeal. The Courts below have concluded looking at Ext. Admittedly, the plaintiffs have not challenged those order in the forums prescribed under Regulation-II of 1956 by filing appeal. The Courts below have concluded looking at Ext. C/1, the certified copy of the order dated 29.12.1999 passed in the proceeding under Regulation –II of 1956 that opportunities had been given to the plaintiffs to adduce evidence when the defendant in that proceeding filed documents, the plaintiffs have refrained from doing so and therefore, basing on the evidence available on record, the authority have passed the order. It has also been taken note of that the plaintiffs have neither pleaded nor proved that the authorities in seisin of those proceedings have either acted in violation of the provisions of the statute or to have acted in opposition to the fundamental principle of judicial procedure. In course of hearing, learned counsel for the appellants have not been able to place any material before this Court that such concurrent finding suffers from the vice of non-consideration of any material evidence available on record or by purposefully bye-passing any such evidence which if would have been taken into consideration, the finding might have been otherwise. The orders thus having been held as no more open to challenge in the suit, this Court finds no fault with the same. In view of the aforesaid, this Court being unable to accept the submission of the learned counsel for the appellants, accordingly holds that the appeal does not merit admission. 8.Resultantly, the appeal stands dismissed. No order as to cost is passed. Appeal dismissed.