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2016 DIGILAW 892 (ORI)

Jyotiprava Mishra v. Baidhar Biswal

2016-10-04

D.DASH

body2016
JUDGMENT : The appellant in this appeal has called in question the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Puri in T.A. No. 13/85 of 1992/1991 confirming the judgment and decree passed by the learned Munsif, Puri in T.S. No. 294 of 1986. The appellant as the plaintiff had filed the suit for declaration of her title, confirmation of possession, permanent injunction and in the alternative for recovery of possession of the land measuring Ac.0.135 decimals describing its dimension as 1000’ x 60’ appertaining to Sabik Khata no. 645, plot no. 987 corresponding to not-final settlement plot no. 183/694 which hereinafter is described as suit land. The suit having been dismissed, the unsuccessful plaintiff had carried the first appeal under Section 96 of the Code of Civil Procedure. In the first appeal, she having not been able to get the order of dismissal of the suit as above set at naught, now this move is before this Court by filing the second 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 courts below. 3. The plaintiff’s case is that the suit land originally belonged to the Deity Siddha Mahavir Dev and one Laxman Das was its Marfatdar earlier. A suit had been instituted by one Jagannath Das and others against the said Marfatdar, Laxman Das. They had got a decree in their favour and in Execution Case No. 506 of 1927 on the file of Sub-Judge, Cuttack. Those decree holders namely, Jagannath Das and others purchased the entire suit land in public auction and accordingly took delivery of possession of the same on 23.6.31. While being in possession Jagannath Das inducted one Lokanath Mohanty as a permanent tenant in respect of the suit land on 10.4.38. It is stated that Lokanath Mohanty has been accepted as permanent tenant. It is next pleaded that said Lokanath sold the suit land in favour of Birajamali Mohanty on 9.8.72 by executing a registered sale deed. This plaintiff claims to have purchased the suit land from that Birajamali on 6.3.79 for a consideration of Rs.2,000/-under a registered sale deed. It is stated that Lokanath Mohanty has been accepted as permanent tenant. It is next pleaded that said Lokanath sold the suit land in favour of Birajamali Mohanty on 9.8.72 by executing a registered sale deed. This plaintiff claims to have purchased the suit land from that Birajamali on 6.3.79 for a consideration of Rs.2,000/-under a registered sale deed. It is also stated that the plaintiff since the date of her purchase came to possess the suit land and constructed a thatched house on a portion of it thereafter. It is the further case of the plaintiff that since said Jagannath or Laxman Das took no further interest, a portion of the suit property stood recorded in the name of the State in the record of the settlement of the year 1927 and some portion in the name of Puri Municipality. Laxmidhar Das, the successor of Jagannath Das having came to know about it then filed a suit i.e. O.S. No. 60 of 1973-I against the State as also the Municipality arraigning them as the defendants. The suit stood decreed. The Municipality challenging that decree had carried the matter finally to Supreme Court. But it finally lost in that legal battle. It is further pleaded that as the plaintiff’s husband was residing in his service place outside and the plaintiff was staying with him. At times they were coming to Puri and then were staying in the thatched house. The defendant no. 1 who was then earning his livelihood as a vegetables vendor being known to them was entrusted with the key of the said house to take necessary care of the same and as such he remained there as a caretaker. The husband of the plaintiff returned to Puri on deputation in January, 1986. On 31.01.86, when he wanted to construct a boundary wall over a suit land, to his utter surprise, the defendant no. 1 with others vehemently resisted to it and also extended the threat of assault. The matter being reported to the police, necessary case was registered. The defendant no. 1 then claimed the suit property to be belonging to Puri Municipality in spite of the fact that Municipality had lost in the earlier round of litigation in respect of the land. Thus it is said that the defendant no. 1 had/has no manner of right, title and interest over the suit land. The defendant no. 1 then claimed the suit property to be belonging to Puri Municipality in spite of the fact that Municipality had lost in the earlier round of litigation in respect of the land. Thus it is said that the defendant no. 1 had/has no manner of right, title and interest over the suit land. It is alleged that during pendency of the suit, the defendant no. 1 in collusion with other defendants attempted to oust the plaintiff and then finally achieved the goal on 20.6.87. The defendant nos. 3 and 4 had also attempted to forcibly enter upon the suit property claiming the suit land to have been purchased by defendant no. 2 from late Lokanath Mohanty. It is said that Lokanath Mohanty had no interest over the property and therefore by such sale deed if any no right, title and interest has been created in favour of defendant no.2. With these averments, the plaintiff prayed for grant of the reliefs as aforesaid. 4. The defendant no. 1 denying the claim of the plaintiff in the written statement asserted that the suit property was a part of large sandy track and as such was all along lying fallow. He came to Puri in the year 1962 in search of his livelihood so as to maintain the family he started to work as a labourer. Then he constructed a thatched house over it and put fence all around and thus has been in possession and enjoyment of the suit property also by planting fruit-bearing trees and enjoying the usufructs thereof. It is alleged by him that in the year 1983, the defendant no. 4 and others along with the plaintiff’s husband when threatened her to dispossess, a proceeding under Section 144 of the Cr.P.C. had been initiated. The husband of the plaintiff is said to have been wrongly described as Kasinath Mishra in the said proceeding. Ultimately the proceeding was converted to under Section 145 Cr.P.C. On 14.6.83 defendant no. 1 had also lodged the FIR in the matter against defendant nos. 3 and 4. With all these averments, the defendant no. 1 claims to have acquired right, title and interest over the suit land by remaining in possession of the same for more than 12 years openly, peacefully and continuously as its owner. 5. The defendant nos. 1 had also lodged the FIR in the matter against defendant nos. 3 and 4. With all these averments, the defendant no. 1 claims to have acquired right, title and interest over the suit land by remaining in possession of the same for more than 12 years openly, peacefully and continuously as its owner. 5. The defendant nos. 2 and 4 in the written statement have denied the right of the plaintiff as asserted in the plaint. According to them, the suit property was the part of the lease-hold land of Lokanath Mohanty who stood accepted as a tenant by the State. Thereafter, on 30.12.83, he transferred the northern half of the suit property in favour of defendant no. 3 for consideration of Rs.2,000/-by executing a registered sale deed. This defendant thus claims to have been in possession of the same since then and also to have constructed a thatched house over it wherein defendant no. 4 claims to have been residing. It is stated that after the said purchase by defendant no. 3, rent is being paid. Denying the possession of the suit land by Birajamali Mohanty or the plaintiff at any time on the basis of purchase, it is further stated that the sale deed executed in favour of Birajamali has never been acted upon and the land described therein to have been sold is non-existent in the field. Thus, they claim that the southern portion of the suit land which had not been purchased by them and owned by Lokanath Mohanty remained under occupation of defendant no. 1 under permission without any such right and title over it. 6. Faced with the above rival pleadings, the trial court framed six issues. Rightly taking up issue no. 5 concerning the claim of the plaintiff as regards the right, title and interest over the suit property on the basis of the rival case of the parties as projected and on examination of the evidence on record the trial court has of course finally held the plaintiff to have failed to establish her claim of right, title and interest over the suit land. With said finding, the plaintiff has been non-suited. 7. With said finding, the plaintiff has been non-suited. 7. In the first appeal, the lower appellate court going to examine the sustainability of the finding of the trial court as above has ultimately concurred with the finding of the trial court by going to say that it has been unerringly established that the plaintiff has not been able to establish her title over the suit land with further finding that the plaintiff has failed to establish the nexus between the suit land and the land that she claims to have purchased by leading clear, cogent and acceptable evidence. So these concurrent findings are now under challenge before this Court. 8. The second appeal has been admitted on the substantial questions of law as indicated in ground nos. (i) and (ii) at paras-11 and 12 of the memorandum of appeal which are reproduced herein below:- “i). For that the learned courts below committed a serious error of jurisdiction entering into the question as to whether, Lokanath Mohanty was inducted as an occupancy tenant by the Marfatdars of the deity Sidha Mahabir Dev and on coming to a finding that the plaintiff has failed to prove, the said induction of Lokanath Mohanty, since both the parties have admitted that Lokanath Mohanty has inducted as a occupancy tenant before vesting, and therefore, suit law in question was not in controversy between the parties as it did not require to be proved, since what is admitted is not required to be proved. Since in view of such erroneous approach and therefore, the judgment and decree passed by both the courts below are vitiated in the eye of law. ii). For that the learned courts below committed a serious error of law not taking into consideration Ext. 1 where in Ext. 1 is a judgment in a previous suit which confirm the title of Jagannath Das who had inducted Lokanath Mohanty from who both parties in the present suit derived there title. 9. Before going to find out the answer on the above substantial questions of law and record the same, it is felt proper to take note of the finding of the trial court as also the lower appellate court on the fundamental and important factual aspect of the case as laid in the plaint and disputed in the written statement as it goes to root. In fact, under any circumstances it has to be decided first and set at rest. Only in case of its answer running in favour of the plaintiff, there would arise the necessity to proceed further as otherwise the exercise to answer the substantial questions of law would not only be an exercise in futility but also in my considered view create confusion. Learned counsels for the outset of hearing are in agreement on that point and they subscribe the view. 10. The trial court at para-10 of the judgment notes that:- “As per the plaint case, at present the land of Basanti Sahu lies at the north of the suit land whereas according to the defendants, the land of Purnima lies there. In Exts. 4 and 9 it has been mentioned that one Bhagabat Pradhan had his lands at the time those documents were executed. As pointed out earlier, P.W.1 has failed to explain how the northern side land came to the hands of Basanti. P.W.1 has stated to have known the ownership of Basanti only during the year 1984-85 from the settlement records. Categorically he had state to have not been Basanti. So it is not known when and from whom Basanti purchased the northern side land. P.W. 3 in his cross-examination at para-9 says to have not known Basanti Dei but in Para-11 he says to have been said Basanti who, according to him, is from Markandeswar Sahi, Puri town. Thus, two separate statements have been given by P.W. 3 regarding his knowing Basanti Sahu. Nothing has also been stated by this P.W. 3 as to how and since when Basanti came to possess the northern side land. P.W. 2 is only a formal witness who has proved the sale deed executed in favour or Birajamali (Ext.9) and he has no knowledge regarding the locality. Thus there is no evidence from the side of the plaintiff as to how the western and northern side land came to Nilakantha Mishra and Basanti Sahu from Sarat Ch. Tripaty and Bhagabat Pradhan. On the other hand, from the statement of D.W.3, Nilakantha Mishra, it is quite evidence that he purchased the western side land from Lokanath Mohanty. It, therefore goes to show that Sarat Ch. Tripaty and Bhagabat Pradhan. On the other hand, from the statement of D.W.3, Nilakantha Mishra, it is quite evidence that he purchased the western side land from Lokanath Mohanty. It, therefore goes to show that Sarat Ch. Tripathy had no land at the west of the suit property during the year 1972.” Next at para-12 of the judgment it has been stated- “Thus, after a careful scrutiny of the evidence on record I find that the property description furnished by the plaintiff is not at all specific and it is quite evident from t he evidence of the D.Ws. that the suit land is not under the possession of the plaintiff. Accordingly the plaintiff failed to substantiate his right, title over the suit property.” 11. The lower appellate court’s important finding at para-11 of the judgment is the followings:- “I find that though the identity of the suit land is not in dispute, the plaintiff has failed to connect the suit property with her purchased property. In a civil suit, the suit land must not only be properly specified but also it must be properly identifiable, failing which no effective or executable decree can be passed. The learned court below has taken into consideration the oral and documentary evidence in detailed and has arrived at a conclusion that the plaintiff has failed to link the suit property with the purchased property. The property description furnished by the plaintiff is not at all specific and the evidence adduced regarding the identity of the suit land is also discrepant.” 12. Attacking the above findings, the learned counsel for the appellant contends that the courts below ought not to have entered into the above arena when the parties had admitted that Lokanath had been inducted as a occupancy tenant in respect of the suit land before vesting and therefore, when the identity of the suit land was not in dispute, it was not so required to be further proved. It is further contended that since as per the judgment in the previous suit, as per the agreement, Ext. 1 the title of Jagannath Das who had inducted Lokanath Mohanty is not disputed and when both the parties claim to have derived title thereunder, the courts below seriously erred in law both in law and fact in recording the finding as noted above. 1 the title of Jagannath Das who had inducted Lokanath Mohanty is not disputed and when both the parties claim to have derived title thereunder, the courts below seriously erred in law both in law and fact in recording the finding as noted above. Learned counsel for the respondents who have been substituted in place of original respondent no. 1 contends all in favour of the above findings of the courts below. He further submits that those are concurrent finding on most important factual aspect of the case telling upon the fate of the suit. According to him, when those are based on just and proper appreciation of evidence on record both oral and documentary, side by side taking into consideration the relevant pleadings, are not liable to be interfered with by this Court in this second appeal. 13. The matter thus now concerns with the identity of the suit land with the examination as to whether the plaintiff has established that the suit land is her purchased land. In the instant case, the plaintiff is certainly under the legal obligation to establish that the suit property as described in the plaint is her purchased property covered under Ext. 4 which was also covered under Ext. 9, the sale deed of her vendor. It has been specifically pleaded in the written statement that the description of the land under Exts. 4 and 9 are vague and such land as stated therein was not available in the field. It has been admitted by the defendants except defendant no. 1 that the land under Sabik plot no. 987 was comprising of vast area and out of that Lokanath had taken lease of Ac.5.00 decimals. Although it is not stated as regards the total area of that Sabik plot no. 987, it is seen from Ext. 1/1 to be comprising of an area of Ac.8.20 decimals and that was so as on the institution of Title Suit no. 60/73. The land is claimed to have been purchased under Ext. 9 in the year 1972. In that year 1972, one Laxmidhar Lenka has also purchased the land from out of the suit plot. So it is not ascertainable with exact certainty as to what was the total extent of land under sabik plot no. 60/73. The land is claimed to have been purchased under Ext. 9 in the year 1972. In that year 1972, one Laxmidhar Lenka has also purchased the land from out of the suit plot. So it is not ascertainable with exact certainty as to what was the total extent of land under sabik plot no. 987 and whether the land purchased by Birajamali, Nilakantha Mishra, Harihar Das, Laxmidhar Lenka and others stand included within that area of Ac.8.20 decimals or those have been excluded. The land of Ac.5.00 decimals said to have been leased out in favour of Lokanath has not been specifically described. Even from which side of the said plot that lease-hold the area comes to extend is not placed or borne out of the evidence. The deed of lease has not seen the light of the day. The trial court has further taken into account the evidence of P.W. 1 that Lokanath has also sold two acres of land from out of the suit plot in favour of others and he has not been able to say the details of those. From that evidence it is found that the boundary lands have been sold to some others and they might have sold their lands to someone else which possibility is not overruled by leading evidence in clear terms. When it is there in the evidence that those persons were possessing the land when Ext. 4 was executed, the plaintiff has not expressed that if any boundary tenants to have sold their land in favour of anybody or not. The trial court as is seen after elaborate examination of evidence let in by the parties and upon their through scrutiny has found that the property description furnished by the plaintiff is not specific while further finding the evidence let in by the defendants that the suit land is not under the possession of the plaintiff as acceptable. 14. The lower appellate court has found the plaintiff to have failed to prove the nexus between the suit land and the lands said to have been purchased by her. On examination of entire evidence on the score, it is found that Exts.2 and 11 relate to land under Khata no. 645/11 whereas the plaint description of the suit land concerns with the land under Khata no. 645. The plot no. On examination of entire evidence on the score, it is found that Exts.2 and 11 relate to land under Khata no. 645/11 whereas the plaint description of the suit land concerns with the land under Khata no. 645. The plot no. 987 which falls as the subject matter of the suit does not find mention either in Ext. 2 or in Ext. 11. The judgment and decree in the earlier suit refers to the plot no. 987. In such state of affair, the lower appellate court having found the plaintiff to have failed to establish the nexus between the suit land as described in the plaint and the land covered under Exts. 4 and 9 by leading clear, cogent and acceptable evidence, the same cannot be said to be the outcome of perverse appreciation of evidence for the reason of overlooking the admission of the parties that Lokanath Mohanty has been inducted as a occupancy tenant and thus there was no controversy between the parties as regards the suit land and that on the face of Ext. 1 earlier judgment in the suit which is relied upon by the parties, there remains no dispute regarding identity of the suit land. Even taking it as such that there was no dispute with regard to factum of induction of Lokanath Mohanty as occupancy tenant which is not confined to the suit land but also includes other land and when the same has been the position which is found from Ext. 1, the judgment in the earlier suit cannot be taken as enough evidence to conclude that the plaintiff’s case that the suit land is her purchased land has been proved. The answer to the substantial questions of law being wholly dependent upon the aforesaid conclusion and in view of the fact that it is not possible to be arrived at said conclusion, the plaintiff has to be found to have been rightly non-suited. 15. In the result, the appeal stands dismissed. In the facts and circumstances, however the parties are directed to bear their respective cost of litigation throughout.