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2016 DIGILAW 192 (ORI)

PRAFULLA NAIK v. DRIVER MADHEI

2016-03-04

D.DASH

body2016
JUDGMENT : D. Dash, J. - This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Baripada in R.F.A. No.6/40 of 2007-06, which was directed against the judgment and decree passed by the learned Civil Judge (Sr. Division), Karanjia in Civil Suit No.56 of 2004. The respondents having filed the suit as the plaintiffs, the trial court decreed the same declaring their right, title and interest over the suit land and confirming their possession and finally restraining the appellant-defendants from creating any disturbance in such possession of the suit land by the plaintiff-respondents. Being aggrieved by the said judgment and decree, the unsuccessful defendants had carried an appeal under section 96 of the Code of Civil Procedure and that has also been dismissed affirming the findings of the trial court as also confirming the final result rendered therein in decreeing the suit granting all the reliefs to the plaintiff-respondents as prayed for. Therefore, now the unsuccessful defendants have knocked the door of this Court by filing the second appeal. It may be stated here that the original respondent no.1 having died during pendency of this appeal, his legal representatives have been substituted as respondent nos. 1 (a) and 1(b), 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 land described in schedule 'A' of the plaint as per the record of the settlement of the year 1983 stand recorded in their names and they are the owners in possession of the same paying rent to the State. It is stated that the defendant nos. 1 to 7, are the brothers; defendant nos.2 and 3, who are the sons of defendant no. 1 and defendant Nos. 4 to 6, the sons of the brother of defendant no.1. The mother of the plaintiffs died in the year 1974. It is stated that the defendant nos. 1 to 7, are the brothers; defendant nos.2 and 3, who are the sons of defendant no. 1 and defendant Nos. 4 to 6, the sons of the brother of defendant no.1. The mother of the plaintiffs died in the year 1974. Their case is that in order to meet the funeral expenses, they had given the suit land on 'thika' basis to one Bhagaban Naik, the father of the defendant nos.1 to 7 for the purpose of cultivation of the same for a period of seven years on receipt of a sum of Rs.500/- with the condition that after lapse of the said period, the possession of the suit land would stand restored. Accordingly, when the period ended in the 'year 1981, the plaintiffs possessed the suit land and continued with the same till the year 2003. In the year 2004, they had also done the first and second ploughing operations over the suit land for the purpose of cultivation. But thereafter the defendant being instigated by some persons in enemical terms with the plaintiffs, who joined their hands with the defendants, forcibly tress passed over the suit land and sowed paddy despite the protest and they also threatened the plaintiffs with dire consequences in case of further resistance. It is said that the matter was orally reported at the police station and being called the defendants then asserted their claim in view of the note of forcible possession of their father in the record of right in respect of the suit land claiming to have the right to possess. So, the suit came to be filed. It is further stated by the plaintiffs that they being simple, innocent and illiterate rustic persons had no knowledge about such note of forcible possession remaining in the record of right in the name of the Bhagaban in respect of the suit land, which they claimed to be illegal. Similarly, stating that the same does neither create any right, title and interest of the defendants over the suit land nor their right, title and interest so far as the suit land is concerned stand extinguished thereby, they also state that the land was never sold by Bada Krushna Madhei, the father of the plaintiffs to Bhagaban Naik, the father of-defendant nos.1 to 7 on 29.03.1943 as falsely claimed. 4. 4. The defendants in their written statement have averred that the suit land with other lands stood jointly recorded in the name of Bada Krushna Madhei, Khedua and Narayan Madhei as per the record of settlement of the year 1930-31. It is stated that Khedua died while leaving in jointness about 65 years back. Thereafter, in an amicable partition between Bada Krushna and Narayan, the suit land came to be allotted to Bada Krushna in his share and that he had sold to Bhagaban for a consideration of Rs. 301/- followed by delivery of possession and that the said transaction was evidenced by a document scribed on non-judicial stamp paper of erstwhile Mayurbhanj State and was duly executed by Bada Krushna, though not registered. It is specifically stated that since the date of purchase, Bhagaban remained in possession of the suit land till his death in January, 1982 and thereafter the same is in possession of the defendants. The note of possession in the current settlement is said to have been rightly made and it is to the knowledge of the plaintiffs. Thus they claim to have got the right, title and interest over the suit land. 5. On the above rival pleadings, the trial court framed eight issues. Parties having led extensive oral and documentary evidence, the court of the first instance at the outset sat over to answer the issues concerning the' purchase of the suit land 'as claimed by the defendants and consequently their right, title and interest over the suit land. The issue has been answered against them and in the negative.' The alternative case of acquisition of title by the defendants over the suit land has also been repelled. In view of the said findings the right, title and interest of the plaintiffs over the suit land, has been declared. The lower appellate court being moved by the unsuccessful defendants, it is seen from the judgment that it has gone to examine the sustain ability of the findings of the trial court on the above said issues. For the purpose, it has made an independent analysis of evidence both oral and documentary in finally affirming all the findings of the trial court. Having failed to cull out any justification for taking a view to the contrary it has refused to disturb the well reasoned finding of the trial court. For the purpose, it has made an independent analysis of evidence both oral and documentary in finally affirming all the findings of the trial court. Having failed to cull out any justification for taking a view to the contrary it has refused to disturb the well reasoned finding of the trial court. It is also seen that the lower appellate court has made an independent examination of the oral evidence so far as the factum of possession of the suit land is concerned in order to arrive a conclusion as to whether the defendants' have discharged the burden of proof by establishing their possession over the suit land since the time of their ancestors openly, peacefully and continuously without any interruption from any quarter as owners and in denial of the title of the true owner exhibiting hostile animus. Finally concluding in the negative, the judgment and decree passed in the suit by the trial court have not been interfered with. 6. Learned counsel for the appellants submits that the courts below have erred in law by not accepting the unregistered sale deed (Ext. I) standing in favour of the father of the defendants when there arises no such doubtful feature so as to question its genuineness. This, according to him, is the substantial question of law which surfaces in the case for being certified for the admission of the appeal. 7. Learned counsel for the respondents entering appearance refutes the above submission contending that the concurrent finding of the fact by the courts below when does not suffer from the vice of perversity and is based upon sound appreciation of evidence both oral and documentary on record as placed by the parties during the trial of the suit simply because another view for a moment can be said to be so taken, the same is no ground to upset the concurrent finding of fact in going to substitute the other view and replacing the same with the view of the final court of fact. 8. It is seen from the pleading that -defendants claimed to have made the entry over the suit land at the beginning to possess the same basing upon (Ext.A) the unregistered purported sale deed. When it is stated that it is a sale deed, the signature or LTI of the vendor or vendee do not find place. 8. It is seen from the pleading that -defendants claimed to have made the entry over the suit land at the beginning to possess the same basing upon (Ext.A) the unregistered purported sale deed. When it is stated that it is a sale deed, the signature or LTI of the vendor or vendee do not find place. None of the legal heir of the scribe has been examined to prove the purported handwriting and signature of scribe (Ext.A). D.W.1 when has proved Ext.A, his evidence on proper examination go to show he was by that time, one to three months old. The trial court as it appears has made thorough discussion of evidence and has found the said document to be filled with suspicious features; including the one that at very important places, the document stands torn and thus the recitals are unable to be read. So far as the factum of possession of the suit land is concerned, the oral evidence has been scrutinized in detail by the trial court and the finding has been recorded against the defendants. The lower appellate court in going to examine the correctness of the said finding as it appears from the judgment has examined evidence of each of the witness examined on behalf of the defendants. It has also taken note of the fact that Ext.A does not contain the signature or LTI of the so-called executants, Bada Krushna and that the document remaining torn at very important places, the recitals on those places are unascertainable. It has further taken serious note of the fact that the stamp' paper was used for preparation of another document and then subsequently by erasing the writings, the recitals have been made as if a sale deed, evidencing the sale of suit land by Bada Krushna in favour of Bhagaban. For all these, the document has been categorically held to be not genuine so as to be acted upon. In view of such concurrent finding of fact that Ext.A is not a genuine document when this Court finds no such infirmity in the matter of appreciation of evidence by the courts below much less of any perversity, the said finding is held not liable to be disturbed. 9. In view of such concurrent finding of fact that Ext.A is not a genuine document when this Court finds no such infirmity in the matter of appreciation of evidence by the courts below much less of any perversity, the said finding is held not liable to be disturbed. 9. In the case in hand the defendants have staked their claim of title over the suit land by virtue of Ext.A. as to have been purchased by their predecessor-in-interest for valuable consideration. However, there is lack of evidence with regard to the most important fact that is the delivery of possession of the?? suit land -pursuant to the said transaction. The lower appellate court being conscious of position of law that in such a case the burden lies on the defendants to establish their case of acquisition of title by adverse possession' by leading, clear, cogent and acceptable evidence in the direction of fulfillment of all the required legal ingredients for the purpose has made trade bare analysis of oral evidence in ultimately repelling the said defence. On careful scrutiny, this Court finds no such justifiable reason to differ with the ultimate conclusion of the lower appellate court on that score, Furthermore in view of the specific claim of title advanced by the defendants over the suit land on the basis of Ext.A., as per the settled position of law they having not renounced the same, their alternative case of acquisition of title by adverse possession does not also hold water and as such does not stand for consideration and decision. 10. In view of the aforesaid discussion and reasons, the submission of the learned counsel for the appellant fails and the appeal thus does not merit admission. 11. Resultantly, the appeal stands dismissed. There shall however, be no order as to cost. Final Result : Dismissed