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2016 DIGILAW 447 (ORI)

Joshobanta Baral v. Golekha Barik

2016-06-22

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Jajpur in R.F.A. No. 29 of 2005 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Jajpur in Title Suit No. 20 of 1996. The predecessor in interest of the respondent no. 1 (1(a) to 1(e)) and respondent-2 as the plaintiffs had filed the above noted suit for permanent injunction restraining the appellant no. 2 from entering upon the suit land and not to interfere with their possession of the suit land. The suit having been decreed, the unsuccessful defendant had carried an appeal and that having yielded no fruitful result in his favour, the second appeal has been filed by him. It may be mentioned here that during pendency of the appeal, the original appellant having died, his son as his legal representative is pursuing the appeal. Similarly, the respondent no. 1 who was the plaintiff no. 1 in the trial court having died during pendency of this appeal, his legal representatives as stated above are on record. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs case is that the suit land as per the current record, stood recorded in the name of Baraju Barik, son of Mani Barik; Bira Barik and Hari Barik, both sons of Achyut Barik; Gadei Barik, and Kangali Barik sons of Mahani Barik and Muli Barik, son of Jai Barik each having equal shares. It is stated that Mani Barik was the common ancestor who died leaving behind four sons, namely Achhyuti, Nisakar, Mahani and Baraju who are all dead. Mahani died leaving behind two sons Gadei and Kangali. The plaintiffs are the sons of Kangali. It is stated that the suit holding i.e., C.S. Holding No. 161 had never been partitioned by metes and bounds amongst co-sharers and the parties are in possession of the same in approximation to the extent to their shares. The suit land is said to be the land around the house and as such is the undivided qua-dwelling house. It is stated that the suit holding i.e., C.S. Holding No. 161 had never been partitioned by metes and bounds amongst co-sharers and the parties are in possession of the same in approximation to the extent to their shares. The suit land is said to be the land around the house and as such is the undivided qua-dwelling house. This house at the time of suit although stood raised to the ground nonetheless the plaintiffs claim to have not totally abandoned the idea of constructing the house over the said land in future. It is claimed that there is a well over the suit land which acts as the source of water for the members of the family. The plaintiffs claim that when they have collected building materials over the suit land on the northern portion of the same adjoining the public road, the defendants put a cabin on the north-east corner on the side of the road by encroaching some portion of the suit land. It is alleged that they threatened the plaintiff to take away the bricks staked over the suit land. It is also stated that on 20.01.1996, the defendants threatened to enter upon the suit land which was prevented by the timely action and protest by the plaintiffs. At that time, although the defendant disclosed to have purchased some portion out of the suit land, however on demand, they could not produce the documents. It is further stated that defendants admitting the suit land to be the undivided homestead land of the parties have purchased A0-00-03-12 biswas of land from Kanhu Barik, Krupasindhu Barik both sons of Gadei and Dambaru Barik son of Hari Barik by registered sale deed dated 18.04.1968. Since the threat of dispossession persisted, the suit had to be filed. 4. The defendant coming to contest the suit claimed that there was a partition amongst the predecessors of the plaintiffs prior to the settlement since the year 1924. The partition is asserted to be by metes and bounds amongst four members of the four branches. In that partition, as per the claim of the defendant, properties being allotted to the members of the respective branch as of their shares, separate note of possession had been made in the settlement record. And that is not only in respect of the suit land, but also in respect of their other lands. In that partition, as per the claim of the defendant, properties being allotted to the members of the respective branch as of their shares, separate note of possession had been made in the settlement record. And that is not only in respect of the suit land, but also in respect of their other lands. Thus, it is stated that members of each branch has been possessing land allotted to their share separately for a long period. Baraju being the owner in possession of the land under plot no. 698, separate note of possession was in his favour. After the death of Baraju, his sons continued to own and possess the land under plot no. 698 (suit land) with other lands. The defendant asserts that Jagabandhu for himself and as the f guardian of Bhagirathi sold the land measuring A0.00.01 kadi 4 biswas to him by registered sale-deed dated 26.04.1968 for valuable consideration. They again sold land measuring Ac.00.03.12 decimals to the defendant by registered sale-deed dated 04.06.1968 for valuable consideration. Also it is stated that Babaji sold land measuring Ac. 00.05 kadi from out of suit plot no. 698 to the defendant by registered sale-deed dated 15.05.1968. The vendors as named above having delivered the possession of the purchased land to the defendant he claims to be in possession of the same as of his own keeping it under one enclosure with his own adjoining lands under plot no.699 and 700 having constructed house, by digging a well and planting trees over the same. Alternatively, it is stated by the defendant that in view of the long peaceful, open and continuous possession of the suit land, there has been perfection of title of adverse possession. The defendant further asserts that in view of long and separate enjoyment of the suit land, the same cannot be said to be continuing with the character as undivided dwelling house. Furthermore, it is the case of the defendant that the house in question which was standing over the suit land stood completely damaged after current settlement operation and earlier Baraju was exclusively residing in the suit house. But after the C.S. operation, he was not residing there and there was no residential house. Furthermore, it is the case of the defendant that the house in question which was standing over the suit land stood completely damaged after current settlement operation and earlier Baraju was exclusively residing in the suit house. But after the C.S. operation, he was not residing there and there was no residential house. The dwelling house of the members of the family is said to have been situated on a separate plot of land and this suit land does not form a part and parcel of the dwelling house which the plaintiffs are occupying. The defendant further asserts to have dug a well over the suit land and surrounded the same by fence and boundary wall and also to have extended a portion of his residential house over there. It is stated that the land has been recorded in his name during major settlement operation as his homestead land and he has been paying rent. The claim of the plaintiffs is said to be the false, frivolous and baseless. 5. Faced with the above rival pleadings, the trial court framed seven issues. Rightly first going to answer issue no. 4 as regards the claim of partition of the suit land as per the case of the defendants which is denied by the plaintiffs, upon examination of evidence, the finding has been that there has never been partition of the suit land and other lands by metes and bounds amongst the members of the family. With this finding, the other finding on issue no. 4 as regards alternative case of the defendants about acquisition of title over the suit land by adverse possession has been answered in the negative. The trial court with the above finding decreed the suit. The lower appellate court looking at the evidence has again found the conclusion of the trial court on those issues to be in order. Therefore, the present move is before this Court by filing the second appeal under section 100 of the Code of Civil Procedure. 6. The appeal has been admitted on the following substantial question of law:- “Whether in view of the evidence on record that since the year 1928 in the record of right, Ext. Therefore, the present move is before this Court by filing the second appeal under section 100 of the Code of Civil Procedure. 6. The appeal has been admitted on the following substantial question of law:- “Whether in view of the evidence on record that since the year 1928 in the record of right, Ext. 1 separate note of possession in respect of separate parcels of land stands in favour of individual co-sharer and when the M.S. Record of Right has also been prepared in the name of defendant-purchasers proceeded by the order of mutation, the courts below have fallen in grave error in decreeing the suit for permanent injunction restraining the defendants from interfering with the possession of plaintiffs and other co-sharer in any manner over the suit land merely banking upon the provision of Section 44 of the T.P. Act without giving a specific finding that the defendants being the stranger-transferees of a share of a dwelling house belonging to the undivided family are not entitled to joint possession or other common or part enjoyment of the same in view of the evidence on record?” 7. Learned counsel for the appellants submits that although the record of right of the year, 1928 in respect of different plots of lands stands joint yet as separate note of possession in respect of each of the plot of land finds mention there in favour of each of the recorded tenant and when particularly in respect of the suit land, there has been the note of possession in favour of Baraju, the courts below in the suit for permanent injunction ought not to have lightly ignored the same. More particularly, when in the later settlement record, the said suit land has again been recorded in the name of defendants, the courts below have completely erred both in fact and law by going to decree the suit holding that there was no partition of the properties amongst the parties by metes and bounds. Thus, it is contended that the finding on that score is perverse and the suit having been decreed on that basis, the same is liable to be set at naught. 8. Learned counsel for the respondents supports the findings of the courts below. Thus, it is contended that the finding on that score is perverse and the suit having been decreed on that basis, the same is liable to be set at naught. 8. Learned counsel for the respondents supports the findings of the courts below. According to him, the concurrent finding of the fact is not liable to be interfered in the second appeal as the same does not suffer from the vice of perversity. It is his submission that the courts below having discussed the evidence when have held that there was no prior partition and that when the suit land has been found to be qua-dwelling house, correctly in view of the provision of the section 44 of the T.P. Act, the suit has been decreed. 9. The settled law is that the Court in seisin of the second appeal should not interfere with the finding of fact recorded by the first appellate court which is the final court of fact, merely because a different view is permissible to be taken on the basis of the evidence let in by the parties. However, the interference is called for only when the court finds that the lower appellate court has either ignored the material evidence on record from being taken into consideration or it has arrived at the finding without any evidence on record when the finding can be said to be suffering from the vice of perversity. 10. The suit is for permanent injunction. Admittedly, Ext. 1 is the record of right of the year 1928 concerning the suit land and other lands which shows the recording of the lands in the name of Baraju Barik and other co-sharers. This has been admitted in evidence from the side of the plaintiffs. Indisputedly, in that very record of right in the remark column, specifically the possession of Baraju in respect of the suit land has been noted. The suit land has again been mutated in the name of defendant in Mutation Case No. 5777 of 1986. The defendant claims to have purchased the suit land from the successors of Baraju. Followed by the above, the suit land has again been recorded in the name of defendant in the record of the major settlement operation which has been admitted in evidence and marked as Ext. The defendant claims to have purchased the suit land from the successors of Baraju. Followed by the above, the suit land has again been recorded in the name of defendant in the record of the major settlement operation which has been admitted in evidence and marked as Ext. G. The courts below appear to have been simply swayed away by the joint recording holding such note of possession as stated above to be of no such significance. Even the first appellate court has not assigned any reason to discard the above separate possession notings which have been allowed to stand as it is for quite a long period. It has proceeded in a different direction that since there is no material on record to establish the previous partition and to support the separate possession of the co-sharers as reflected in the remark column of the record of right of the year 1928, the finding of prior partition is not recordable. In view of the rival case of the parties, the most important aspect that ought to have been examined by the courts below is with regard to the factum of possession of the suit land and as to whether it runs in favour of the defendants or not. The note of possession remains in respect of the members of each branch in the remark column of the record of right, Ext. 1 which is of the year 1928 and the position has been maintained till 1996. This gives rise to a presumption of separate possession of land by the recorded tenants. So when the plaintiffs have failed to rebut the presumption by leading acceptable and satisfactory evidence, this Court holds that the finding even though concurrent suffers from the vice of perversity and thus cannot be allowed to stand. In the above premises and in view of the evidence of separate possession of the suit land since the time of Baraju, the predecessor in interest of the vendors of the defendant, stretching over a period of about two and half decades, the courts below in my considered view have erroneously gone to hold in the case that the principles of section 44 of the T.P. Act comes to the aid of the plaintiffs so as make them entitled to the reliefs as claimed in the suit. The aforesaid discussion and reasons, accordingly provide the answer to the substantial question of law which runs in favour of the appellants. Therefore, the judgments and decrees passed by the Courts below are held unsustainable. 11. In the result, the appeal stands allowed. The judgment and decree passed by the courts below are set aside and accordingly the suit is hereby dismissed. However, in the facts and circumstances of the case, the parties are directed to bear their respective costs throughout.