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Orissa High Court · body

2016 DIGILAW 3 (ORI)

Sudarshan Ojha v. Uchhaba Mohapatra

2016-01-05

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed against the order passed by the learned District Judge, Dhenkanal in RFA No. 21 of 2003 remanding the suit (T.S. No. 13 of 1988) to the trial court i.e. Civil Judge (Sr. Divn.), Dhenkanal for disposal of the same afresh in accordance with law. 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. The appellants as the plaintiffs had filed the suit for declaration of their right, title, interest and possession over schedule ‘B’ land. It is their case that one Dasa Mohapatra is the common ancestor of the plaintiffs and one Gunjara. The defendants belong to the branch of Gunjara whereas the plaintiffs are the sons of Kunja. Dasa had one son namely, Mohan who died leaving behind his two sons namely, Kunja, Sankar and one daughter Gunjara. The suit land stood recorded in the name of Dasa and it was subsequently mutated in favour of Kunja and Sankar. Sankar when died issueless the suit land was exclusively recorded in the name of Kunja who remained in possession of the same on his own right, title and interest. Baji Mohapatra, the father of defendants mutated land in his name on the strength of his purchase of land measuring Ac.0.85 decimals. During the settlement operation, the suit land in schedule ‘B’ stood recorded in the name of Baji even though the plaintiffs are in possession of the same measuring Ac 0.5.55 decimals. It is stated that the defendants have no manner of right, title, interest and possession over the same and the ROR has been wrongly recorded in the name of Baji. So the suit was filed. The respondents being the defendants contested the suit by filing written statement. They admit Dasa to be the original recorded owner of the suit land. However, their case is that Baji had purchased Ac.0.85 decimals of land from out of the land under Sabik khata No. 966 and 972, holding No. 126 and he purchased Ac.02.90 decimals from western side out of Ac.03.90 decimals appertaining to Sabik Plot No. 1068 by registered sale deed dated 8.8.58 for valuable consideration from Kunja. However, their case is that Baji had purchased Ac.0.85 decimals of land from out of the land under Sabik khata No. 966 and 972, holding No. 126 and he purchased Ac.02.90 decimals from western side out of Ac.03.90 decimals appertaining to Sabik Plot No. 1068 by registered sale deed dated 8.8.58 for valuable consideration from Kunja. Since the date of purchase, Baji was in possession till his death and the defendants assert to have been in possession of Ac.02.90 decimals of land after the death of Baji. According to them, the plaintiffs have got only Ac.02.45 decimals of land and as such they cannot claim right over the entire suit land. As per their case, the plaintiff-appellants are entitled to take their Ac.02.45 decimals of land from out of Hal khata No. 251 by partition and not by way of declaration. They have further averred that the recording of suit land in favour of Baji to the extent of his purchased land is correct but inclusion of remaining land Ac.02.45 decimals is a mistake. 4. The trial court on such rival pleadings framed eight issues. Answering the crucial issue i.e. issue nos. 3, 4 and 5 having taken up together for decision, upon assessment of evidence and their evaluation, the answers have been recorded in favour of the plaintiffs that they have the right, title and interest over the suit land and ultimately finding has been given that the recording of the land in the name of Baji is incorrect. In view of such finding, the suit having been decreed, the respondents as unsuccessful defendants had carried the appeal. The appellate court has found that the trial court while deciding the crucial issue has not taken into account that Ext. A being a document of 30 years old coming from proper custody carries presumption as regards its due execution and it has thus found that the trial court has omitted to give attention to that while giving a finding as regards the execution. Moreover, in view of the challenge, the lower appellate court has noticed that the trial court has failed to examine as to if the title has passed to the vendee in respect of land covered under the said sale deed by going to ascertain whether the vendor had any title so as to be conveyed. Moreover, in view of the challenge, the lower appellate court has noticed that the trial court has failed to examine as to if the title has passed to the vendee in respect of land covered under the said sale deed by going to ascertain whether the vendor had any title so as to be conveyed. In view of above, the lower appellate court has found that the trial court ought to have framed a specific issue as to whether Kunja executed the sale deed and if so whether the sale deed is valid and genuine and has conferred title upon Baji in respect of land covered under the said sale deed. For this, the lower appellate court having set aside the judgment and decree passed by the trial court has remanded the suit for fresh disposal in accordance with law after framing the specific issue and answering the same along with other issues, of course giving further opportunity to the parties to lead evidence. 5. Heard the learned counsel for the parties. Perused the judgments of the courts below. 6. In view of the rival pleadings as regards the competing claims of the parties so far as the suit land is concerned, it is seen that more appropriately an issue whether Kunja had executed the sale deed and that it was valid and genuine and has conferred title of the land covered under it in favour of Baji ought to have been framed and answered as that would have decided the fate of the claim of the respondents having definite impact on the ultimate decision of the suit. Moreover, the trial court as it appears having not framed that issue, the claim of the respondents has thus remained unaddressed and as such the decision in the suit has not been complete. In view of the above, this Court does not find any infirmity with the order passed by the lower appellate court. 7. In the result, the appeal stands dismissed and in the facts and circumstances of the case without cost. In view of the above, this Court does not find any infirmity with the order passed by the lower appellate court. 7. In the result, the appeal stands dismissed and in the facts and circumstances of the case without cost. The suit being of the year 1988, in order to save time, the parties are directed to enter appearance before the trial court on 25.01.2016 to receive further instruction and to cooperate with the trial and the trial court is directed to dispose of the same in accordance with the law in view of the order passed by the lower appellate court by 20.05.2016 framing specific issue as above, answering the said issue as also other issues afresh viewing the impact of the decision on the specific issue. In this exercise, the parties if so desire may lead further evidence on the specific issue as directed to be framed.