Gurala Babu Rao v. Municipal Council, Parlakhemundi Municiplity
2016-05-03
D.DASH
body2016
DigiLaw.ai
JUDGMENT : D.DASH, J. This appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Gajapati, Parlakhemundi in T.A. No. 20 of 1995 confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Parlakhemundi. The appellants as the plaintiffs had filed the suit for declaration that the respondent no.1, the Municipal Council, Parlakhemundi arraigned in the suit as the defendant no.1 have no manner of right, title and interest or possession over the suit land described in items No. I and II of the plaint with the further prayer for issuance of permanent injunction against them. Also there was the prayer for mandatory injunction to direct the respondent-defendants to demarcate the suit property with alternative prayer to declare the appellant-plaintiffs to be the rightful owners of the suit land. 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 plaintiffs’ case is that Gurala Ramulu, the husband of plaintiff no.1 and father of plaintiff no.2 had purchased the property described in item No.I from one B.Rama Murty Achary and B.Amruta Lingama by Registered Sale Deed dated 20.08.1944 and had taken delivery of possession of the same. He had also purchased the other item No.II property from one K.Pentaya by Registered Sale Deed dated 30.11.1946 and had taken possession of the same. It is stated that having purchased the suit land, he remained in possession of the same till his death and thereafter plaintiffs continued with the same as his successors and thus owning the property. It is further stated that the suit property under item No.II originally belonged to Mahamad Abdul Alim who had sold the same to Rusyassrunga Ramdas and he in turn had sold it to K.Pentaya from whom plaintiffs’ predecessor in interest had purchased. It is next stated that the defendants have absolutely no right, title and interest over the said suit property and they have encroached upon the same for the purpose of constructing a Bus stand over there and have levelled some portion of the land despite the protest by the plaintiffs.
It is next stated that the defendants have absolutely no right, title and interest over the said suit property and they have encroached upon the same for the purpose of constructing a Bus stand over there and have levelled some portion of the land despite the protest by the plaintiffs. It is also alleged that the Municipality Authority by manipulation have been able to record the suit land in the settlement operation in the name of the Municipality suppressing the true facts. 4. The Municipal Council, defendant no.1 with its officials while traversing the plaint averments have asserted that the suit property all along have been lying open in possession of the Municipality from its inception and it is stated that although no construction had been built up over the same yet it was being used as dumping ground and therefore, the settlement authority have rightly recorded the suit land in favour of the Municipality. The suit lands are stated to have been demarcated and measured for the purpose of construction of the Bus Stand. They further claim in the alternative to have acquired the title over the suit land by way of adverse possession. 5. The suit was initially decreed. The defendants 1 to 3 being aggrieved had challenged the same by filing the first appeal under section 96 of the Code of Civil Procedure. The appellate court after hearing, had remanded the suit for fresh disposal in accordance with law giving further opportunity to the parties to establish their competing claim of title. Upon above remand, the suit stood dismissed recording the finding that the plaintiff has not been able to establish his right, title and interest over both the items of the property through acceptable evidence, so as to be entitled to the reliefs as prayed for. 6. The crucial issue in the suit is issue no.1 which is with regard to the plaintiff’s right, title, interest and possession over the suit land and the fate of the entire suit hinges upon the answer to it so as to be accordingly decided. The trial court has in clear and categorical term returned the answer on the above score that the plaintiffs have got no right, title and interest over the suit land.
The trial court has in clear and categorical term returned the answer on the above score that the plaintiffs have got no right, title and interest over the suit land. The issue as regards the factum of possession of the suit land have been decided in favour of the defendant-Municipality that they are in possession of the suit land. Lastly, the trial court has further gone to record that the settlement entry with regard to the suit land is correct. The above findings have finally led the trial court to dismiss the suit. 7. The lower appellate court being moved by the unsuccessful plaintiffs has very rightly gone to take up the examination as regards the sustainability of those findings of the trial court one by one and as it appears by making sincere endeavour and independent exercise of scanning the evidence both oral and documentary at its level viewing those in their proper prospective in its wisdom as well as on their assessment, it has not been able to arrive at a decision other than those as recorded by the trial court on those issues. Therefore in the ultimatum dismissal of the suit has been upheld. 8. This appeal by order dated 14.03.2016 has been admitted on the following substantial questions of law:- (A) Whether there is a presumption that a registered document is validly executed? (B) Whether the Municipality has adhered to Section 125 of Orissa Municipal Act, 1950 to acquire the suit land ? (C )Whether the possession over the suit land by the Municipality is adverse in nature? (D) Whether the lis between inter se parties is in personam in nature? 9. On going through the judgments of the courts below and upon hearing the learned counsel for the parties, I am of the humble view that none of the above arise as the substantial questions of law in this case.
(D) Whether the lis between inter se parties is in personam in nature? 9. On going through the judgments of the courts below and upon hearing the learned counsel for the parties, I am of the humble view that none of the above arise as the substantial questions of law in this case. The courts below have dismissed the suit solely on the ground that the plaintiffs have failed to prove their title over the suit land so as to be entitled to the reliefs prayed for in the plaint and the sale deeds projected by them as the documents of title have been held to be of no avail to the plaintiffs in the absence of any proof on the score that the vendors of the said sale deeds had the alienable right, title and interest over the subject matter so as to be conveyed to the vendee under said sale deeds. The position is well settled that the sale deeds executed by a personas the vendor in the absence of proof of title resting with him puts the vendee nowhere in respect of the land sought to be transferred under the said sale deed. Therefore, the only substantial question of law that arises here is as to whether the courts below have rightly recorded the answer on the issue of title of the suit land by discarding the sale deeds projected as the documents of title by the plaintiffs or not and if such finding suffers from the vice of perversity. The answers to all other issues are just consequential so far as the question of grant of the reliefs as prayed for by the plaintiffs is concerned. Accordingly, I have heard the learned counsel for the parties at length on the above substantial question of law. 10. Adverting to the plaintiffs’ case, it is seen that they have pleaded in specific term to have acquired the title over the suit land by virtue of the purchase as stated in the foregoing para 3. It is the settled position of law that the plaintiffs can only succeed in the suit of this nature on the strength of his own and not upon the weakness found in the case of the defendants.
It is the settled position of law that the plaintiffs can only succeed in the suit of this nature on the strength of his own and not upon the weakness found in the case of the defendants. Thus when they have come forward in specifically pleading that they are entitled for declaration of title and possession over the suit land by virtue of those sale deeds executed by the so called erstwhile owners, they are to succeed in the suit only by proving that those vendors under the sale deeds had the title over the suit property and as such the right of alienation and they having so alienated, ultimately these plaintiffs have been clothed with the title in respect of the suit land since the defendants are disputing the title of the plaintiffs and on the face of the record, their name finds place. There has been concurrent finding of fact by the courts below that the defendants are in possession of the suit land which is found to be based on proper appreciation of evidence when nothing has been pointed out in course of hearing that the same suffers from the vice of perversity. Gurala Ramulu is said to be the purchaser of the suit land under item Nos. I and II and he is none other than the husband of the plaintiff no.1 and father of plaintiff no.2. The plaintiffs claim to have stepped into his shoes as his legal heirs and successors upon his death. The first item of the property is said to have been purchased from B.Rama Murty Achary and B.Amruta Lingama vide R.S.D. of the year 1944 and the second item is said to have been purchased in the year 1946 from K.Pentaya. It further reveals from the evidence of P.W.1 that K.Pentaya had purchased the suit land from R.Ramdas in the year 1935 vide RSD, Ext.3 and R.Ramdas had purchased the suit land from Mahamad Abdul Alim through R.S.D. Ext.4. The sale deeds though have been proved from the side of the plaintiffs, yet not a scrap of paper is forthcoming in the evidence from their side to show that the title in respect of the suit property were resting with the original vendors.
The sale deeds though have been proved from the side of the plaintiffs, yet not a scrap of paper is forthcoming in the evidence from their side to show that the title in respect of the suit property were resting with the original vendors. Plaintiffs place much reliance on the sketch map, Ext.5 said to have been granted by the Municipal Authority that the title to be with Abdul Alim as it has been indicated therein that the lands are private lands. Such a document is not a primary document so as to establish the title in respect of the immovable property although it may be taken as a piece of corroborative evidence so as to lend support to the primary document of the title. Such sketch map Ext.5 can never create the right, title and interest in respect of the suit properties shown therein in favour of any person. So, from that it cannot be accepted that Abdul Alim had the title over the suit land. In that view of the matter, the transaction made by Abdul Alim falls flat and such registered sale deed cannot be taken to be the document of title as by said sale deed title cannot be taken to have passed from the vendor to the vendee unless the title of the vendor is proved as otherwise, those registered sale deeds shall just remain as self-serving documents and they cannot be taken as the documents of title. The trial court has gone for detail discussion of evidence on the score of the title of the plaintiffs over the suit land at paragraphs 11 and 12 of its judgment. The lower appellate court has made elaborate discussion of all those again. The concurrent finding has come out that the plaintiffs have failed to prove the right, title, interest and possession over the suit land. 11. The Apex Court in the decision cited by the learned counsel for the appellants in the case of Prem Singh and others vrs. Birbal and others, AIR 2006 SC 3608 has laid down the law that there remains presumption of registered documents to have been validly executed and that would remain valid in law when the onus of proof remains on a person who leads evidence to rebut the presumption. In the case in hand, the question is not relating to the execution or non-execution of the Registered Sale Deeds.
In the case in hand, the question is not relating to the execution or non-execution of the Registered Sale Deeds. Here the specific point falls for consideration is as to whether by such Registered Sale Deeds, the title over the suit land has been conveyed by the vendor to vendee and as such has gone to rest on him. None is coming forward to challenge the execution of said sale deeds. When it is found that the vendor was having no title by mere execution of the sale deeds, title over the land in question cannot pass on the vendee. Such documents thus remain even not having the worth of the paper written thereon. The other decisions cited by the learned counsel for the appellants in the case of Md. Noorul Hoda vrs. Bibi Raifunnisa and others; (1996) SCC 767 and R.Viswanathan vrs. Rukn-Ul-Mulk Syed Abdul Wajid; AIR 1963 SC 1 , having been carefully read, the principles laid down in those cases are found to be having no applicability to the instant case which rests on completely different factual setting as also the issue remains quite distinct. The aforesaid discussion and reasons accordingly provide the answer to the substantial question of law. 12. Resultantly, the appeal fails. In the fact and circumstances, there shall however be no order as to cost.