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2016 DIGILAW 774 (ORI)

Stipan Singh v. Dalaba Dalabehera

2016-09-09

D.DASH

body2016
JUDGMENT : 1. The appellant in this appeal has called in question the judgment and decree passed by the learned Subordinate Judge, Paralakhemundi (as then it was) in T.A No. 1 of 1991 confirming the judgment and decree passed by the learned Addl. Munsif, R.Udayagiri in T.S. No. 4 of 1990. The appellant as the plaintiff had filed the suit for declaration of his right, title, interest and confirmation of possession over the suit land in further restraining the respondent-defendant permanently from interfering with the peaceful possession of the plaintiff over the suit land. The suit having been dismissed, as the unsuccessful plaintiff, he had carried an appeal under Section 96 of the Code of Civil Procedure. The same having also been dismissed now the move is before this Court with this appeal under Section 100 of the Code. 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 plaintiff’s case is that he is the owner in possession of the suit land coming to his hands from his ancestors who had made the said land fit for agriculture. It is stated that the defendant has absolutely no manner of right, title and interest over the land. Therefore, the record of right in respect of the suit land stands in favour of the plaintiff. When he was in possession of the same, the defendant all of a sudden went to declare that he would be entering into the possession of the same by force and thereafter he began to create disturbance in the possession of the suit land by the plaintiff. The plaintiff claims that the suit land has been in his cultivating possession all through and it was also so during the time of his fore-fathers and that he is paying the land revenue. In view of such declaration by defendant and subsequent disturbance in the possession of the plaintiff over the suit land, the suit came to be filed. 4. The defendant contested the case by filing written statement. He has advanced a claim of competing title over the property in question that it was the property of his father Chaitan Dalabehera. In view of such declaration by defendant and subsequent disturbance in the possession of the plaintiff over the suit land, the suit came to be filed. 4. The defendant contested the case by filing written statement. He has advanced a claim of competing title over the property in question that it was the property of his father Chaitan Dalabehera. He next pleads that the land was given to the plaintiff’s father by said Chaitan for cultivating the same on bhag basis; on sharing of the usufructs and it was for few years only. He alleges that the plaintiff in order to grab the suit land thereafter managed to get it recorded in his name. In the settlement operation having failed to retain the possession unauthorizedly being so commanded and also being driven out of possession by an order in a proceeding under Orissa Scheduled Area Transfer of Immovable Property Regulation, 1956 (hereinafter in short called as ‘the Regulation-2 of 1956) vide RMC No. 272 of 1976 as confirmed by the appellate authority in Regulation Appeal No. 22 of 1976 and thus finally having also failed in getting any such reliefs on an approach to this Court with writ application numbered as OJC No. 696 of 1977 has filed the suit to further harass them. The defendant claims to have been in physical possession prior to the suit being so delivered by the competent authority under the Regulation-2 of 1956.With all these, he prays for non-suit the plaintiff. 5. The trial court on such rival pleadings has framed three issues including that on the competing claim of the ownership of the property by the parties and its impact as per law on the record of right published in the settlement operation which has been projected as the document in support of the case of the plaintiff. 6. Rightly it has taken up issue no. 1 as regards the competing the claim of ownership over the property by the parties for decision. After detail analysis of evidence both oral and documentary it has recorded a finding that the plaintiff is not the rightful owner of the suit land and the suit land was neither in his possession nor in possession of his ancestors as its owner. After detail analysis of evidence both oral and documentary it has recorded a finding that the plaintiff is not the rightful owner of the suit land and the suit land was neither in his possession nor in possession of his ancestors as its owner. Consequently, the recording of the suit land in favour of the plaintiff in the settlement operation has been held to be of no help to the plaintiff to establish his claim of title over the property and it has also held the recording made therein Ext. 1 as erroneous. Thus the plaintiff’s suit has been dismissed. In the appeal in view of the specific challenge to the finding recorded by the trial court on the issue relating to the competing claim of ownership over the property as also possession, the lower appellate court has gone to judge the sustainability of the said finding of the trial court. For the purpose, keeping in view the rival submission, having again the scrutinized the evidence on record at its level and that too independently, the final result of the dismissal of the suit as ordered by the trial court has been confirmed. It is pertinent to state that before the lower appellate court it was being urged that the suit land when does not correspond to the land involved in the Regulation-2 proceeding vide RMC No. 272 of 1976, the finding of the trial court mainly based upon the same as erroneous. The lower appellate court has whittled down the said contention from the side of the plaintiff-appellant. This is how the plaintiff is with the second appeal before this Court. 7. The appeal has been admitted by order dated 17.1.94 only on the following substantial question of law:- “Whether the land which was the subject matter of RMC Case No. 272 of 1976 is same as the disputed land?” 8. Learned counsel for the appellant inviting the attention of the Court to the pleadings as also the orders passed in the Regulation-2 proceeding by the original authority, appellate authority and also of this Court in the writ application contends that the courts below have fallen in grave error by not recording the finding that the suit land was not the subject matter of Regultion-2 proceeding. According to him, the defendant having not specifically pleaded in the written statement that the suit land was the land involved in the Regulation-2 proceeding which finally stood confirmed by the order in his favour in the writ application and whereafter physical possession of the suit land was restored in his favour by driving out the plaintiff, the burden of proof was on him. Thus it is submitted that when the said fact has not been proved by the defendant, the plaintiff ought to have been granted at least with the relief of confirmation of possession on the basis of recording of the suit land in his favour under Ext. 1 even without deciding the question of title in his favour which also according to him ought to have been so held in favour of the plaintiff. Thus he contends that the answer to the above substantial question of law would run in favour of the plaintiff entitling him to the reliefs as prayed for. 9. Learned counsel for the respondent refutes the above submission in contending that the courts below having kept this aspect of the case in mind have gone for extensive and microscopic examination of the pleadings as well as the evidence in side by side looking at the record of the proceeding under Regulation-2 of 1956. The evidence available on record have been thoroughly scanned and lastly finding has been in favour of the plaintiff that the land in suit was very much the subject matter of the proceeding under Regulation-2 of 1956. The lower appellate court has also said that when the defendant had pleaded in clear terms in the written statement that the land in suit was the land involved in the proceeding under Regulation-2 of 1956 and it was not for any other land, the plaintiff was under the legal obligation to prove in the negative which according to the lower appellate court has not been done. Thus he contends that the courts below have committed no mistake in dismissing the suit which was the last move in catching a piece straw while drawing to prevent the defendant from enjoying the land in suit having got it restored by the order in the Regulation-2 proceeding in depriving him of the fruit of that prolonged lis. Thus he contends that the courts below have committed no mistake in dismissing the suit which was the last move in catching a piece straw while drawing to prevent the defendant from enjoying the land in suit having got it restored by the order in the Regulation-2 proceeding in depriving him of the fruit of that prolonged lis. So his contention that the same being a pure question of fact and when in the said finding no such perversity is seen, this Court in second appeal has no scope to interfere with the same. 10. The substantial question of law as aforesaid is undoubtedly a question of fact. So if its answer in favour of the appellant can only be recorded by saying that the same suffers from the vice of perversity, the interference with the concurrent finding of the courts below would be justified. It has to be said that it has been so recorded either on nil or inadmissible evidence or that for the purpose any such material evidence on record has been eschewed from consideration which if would have been so taken and given its due legal weightage, the same would have impacted the finding giving rise to an answer to the contrary. 11. Adverting to the facts and circumstances of the case, it is seen that after the suit, the defendant has filed a mutation proceeding vide Mutation Case No. 80 of 1990 before the Mutation officer for recording of the land in his favour by changing the record published after closure of the settlement proceeding and there this present plaintiff having appeared had filed objection stating that present civil suit from which the present appeal arises to be pending before the trial court and therefore on that basis, he had been advanced a prayer before the mutation authority to drop the proceeding. Based upon said submission, it was so dropped. Furthermore, it is found that the trial court has carefully gone through the evidence of the plaintiff examined as P.W. 1 and the evidence of the defendant examined as D.W. 1 insofar as the description of the suit land is concerned, more particularly with reference to the boundaries of the same as stated by them. In that exercise, the description of the land as provided in the order in the proceeding under Regulation-2 of 1956 has also been gone through. In that exercise, the description of the land as provided in the order in the proceeding under Regulation-2 of 1956 has also been gone through. The ultimate factual finding has been that the land involved in the suit and the land for which Ext.1, the record of right that had been published in favour of the plaintiff remain the same. At this stage, the trial court has entertained grave suspicion standing on the way of acceptance of the case of the plaintiff as laid in the plaint that the defendant has no where pleaded nor whispered a single word even giving slight hint as to the proceeding under Regulation-2 of the 1956 at least between the parties. Having gone through the evidence both oral and documentary let in by the parties, I do not find that the courts below have omitted to look at any such other relevant evidence which are there on record much less to say that material evidence, having tendency to influence the finding. Rather, the courts below as it appears have gone for just and proper appreciation of evidence on record in arriving at the finding on that particular score, in ultimately saying that the land involved in the regulation proceeding and the suit are same and identical. Therefore, when this Court finds that the finding on issue nos. 1 and 2 as recorded by the trial court as affirmed by the lower appellate court are not the outcome of perverse appreciation of evidence, the inevitable answer to substantial question of law stands against the plaintiff-appellant. 12. In the result, the appeal stands dismissed. No order as to cost is passed in the facts and circumstances of the case.