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2016 DIGILAW 919 (ORI)

Digi Majhi v. Radha Mohan Majhi @ Hansdah

2016-10-06

D.DASH

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JUDGMENT : Challenge in this appeal is to the judgment and decree passed by the learned Additional District Judge, Rairangpur in R.F.A. No.6 of 2012. The respondents as the plaintiffs having filed the suit for declaration of their title over the suit land described in schedule ‘B’ of the plaint and confirmation of their possession numbered as C.S. No.21 of 2003, the same had been dismissed by the learned Civil Judge (Sr. Division), Rairangpur. Therefore, they had carried the first appeal under section 96 of the Code of Civil Procedure, which had been heard and decided by the learned Additional District Judge, Rairangpur. The lower appellate court while allowing the appeal has decreed the plaintiffs’ suit declaring them to be the rightful owner in possession of the suit property. The defendants thus being aggrieved by the same are now before this Court in this 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 trial court. 3. Plaintiffs case is that one Barial Majhi is the common ancestor of the parties and he had land measuring Ac.13.23 dec. as per the Sabik records. On his death his two sons, namely, Kama and Pitha having succeeded to the property effected a partition between them sometime after the settlement of the year 1927 and accordingly possessed the land falling to their respective share. It is further stated that some land was acquired by the State for the purpose of Khadkhai irrigation project from out of that land under the said Sabik Khata. The rest land measuring Ac.7.54 dec. stood erroneously recorded in the name of the defendant nos.1 to 4 in the Hal Khata omitting the plaintiffs in the relevant column of the record of right though the parties were in possession of the land as per their respective shares. It is further stated that Shyam Majhi, son of Pitha Majhi applied for recording his name in the Hal Khata No.91 along with the defendants and for the purpose, he filed Mutation Case No.470 of 1988 which was allowed. It is further stated that Shyam Majhi, son of Pitha Majhi applied for recording his name in the Hal Khata No.91 along with the defendants and for the purpose, he filed Mutation Case No.470 of 1988 which was allowed. In a case for Permission for Identification bearing No.174 of 1989, the Revenue Inspector, Suleipat had measured the land and the land described in schedule ‘B’ which is the suit land was found to be in possession of the plaintiffs. So that area of the land was carved out separately in favour of the plaintiffs and the remaining land measuring Ac.2.09 dec. as per the specifications shown in schedule ‘C’ of the plaint being found to be in possession of the defendants was also carved out in their favour. The land acquired in the said irrigation project was from the share of the defendants. The plaintiffs when approached the defendants to come forward for taking necessary step for recording of the respective share separately, they did not agree. So, the suit has been filed in respect of schedule ‘B’ land for declaration of title over it in favour of the plaintiffs and their confirmation of possession. The defendants coming to contest the suit admitted the land under Sabik Khata to have been divided earlier between the heirs of Kama and Pitha, sons of Barial. It is further admitted that the parties are in possession of their respective share separately. But their stand is that the land that has been acquired in the irrigation project in the year 1975 is not from out of the share of the defendants. But, it was from out of the share of the plaintiffs as they have specifically stated. It is further alleged that the plaintiffs have received the compensation amount. The defendants claimed that they are in possession of the schedule ‘B’ property. The land records are said to have been created by the plaintiffs influencing the authorities and it is stated the plaintiffs are not in possession of the said land. 4. Faced with the above rival pleading, the trial court framed seven issues. Going to answer issue no.6 concerning the rival claim of possession of the suit land, the finding has been that the defendants are in possession of the suit land. 4. Faced with the above rival pleading, the trial court framed seven issues. Going to answer issue no.6 concerning the rival claim of possession of the suit land, the finding has been that the defendants are in possession of the suit land. Next going to decide issue no.3 relating to the allotment of the suit land in the share of the plaintiffs, upon discussion of evidence at that level, the finding has been rendered against the plaintiffs. Then coming to issue no.4, the answer has remained against the plaintiffs as consequential upon the finding on issue no.3. The lower appellate court upon discussion of evidence in the touch stone of the rival pleadings, proceeding to examine the sustainability of the trial court on issue nos. 3,4 and 6 as aforesaid has finally set aside those findings and those have been recorded in favour of the plaintiffs. The appeal has thus been allowed and the suit accordingly has been decreed which is now under challenge in this appeal. 5. Learned Senior counsel for the appellants submits the following to be the substantial question of law which arises in this appeal for its certification for the purpose of admission of this appeal. “The Hal Settlement operations having been concluded in the suit mouza and the final R.O.R. in respect of the Hal Khata No.91, under Ext.2, having been published in the year 1985, whether the learned lower appellate court is correct in placing the entire reliance on the orders passed in a mutation proceeding under Ext.3, which was undisputedly initiated in the year 1988 after the publication of the Hal Settlement R.O.R., when such a mutation proceeding is not maintainable in the eye of law.” 6. Going to address the submission as above and find out as to if there surfaces the substantial question of law, it is seen that the plaint averment has remained on the score of partition and allotment of schedule ‘B’ property to the plaintiffs as of their share in further stating that the land described in schedule ‘C’ had fallen to the share of the defendants. The defendants though admit the factum of partition pleads contrary only to the effect of schedule ‘B’ and ‘C’ property falling to their share in explaining further that some of the lands of the plaintiffs were acquired by the State for the purpose of Khadkhai Irrigation project in land acquisition proceeding. The defendants though admit the factum of partition pleads contrary only to the effect of schedule ‘B’ and ‘C’ property falling to their share in explaining further that some of the lands of the plaintiffs were acquired by the State for the purpose of Khadkhai Irrigation project in land acquisition proceeding. So, the dispute boils down to the point as to whether schedule ‘B’ property is in the share of the plaintiffs or defendants. The Sabik record of right jointly stands in the name of Kama and Pitha sons of Barial. The Hal record of right shows schedule ‘B’ land to have been exclusively recorded in the name of successors of Kama. Plaintiffs’ case is that their names were wrongly omitted though they are in possession of the land as of their shares under that Khata and that necessitated for making the application for mutation. The mutation case having been allowed now the name of Shyam son of Pitha, Pitha, Radhamohan sons of Barial and Kapura daughter of Kama have come to be recorded in the said Khata. The defendant nos.2 and 3 very much participated in the said mutation proceeding and in their presence and to their knowledge the orders had been passed which has been rightly taken note of by the lower appellate court with that final record which has been proved and marked as Ext.2. Plaintiffs have proved Amin Badar Ext-4 in that PFI case where the share of the parties has been carved out and that has been admitted in evidence and marked as Ext.5. In Ext.4 schedule ‘B’ properties measures Ac.5.45 dec. and that was demarcated in favour of Shyam S/o of Pitha, Pitha Radhamohan S/o Barial and the rests was demarcated in favour of Hindu and others. This Ext.4 reflects the possession of the plaintiffs over schedule ‘B’ land and those of defendants over schedule ‘C’ land. The defendants have also never objected during the said demarcation. From this the lower appellate court has arrived at a conclusion that schedule ‘B’ property was in possession of the plaintiffs whereas schedule ‘C’ property was in possession of the defendants and the disparity in possession of the defendants with regards to lesser extent is because of acquisition of land in the irrigation project from out of the share of the defendants which had enured to their benefit. This aspect is not shown to be incorrect or wrong from the side of the defendants though they have specifically pleaded that the land acquired was from the share of the plaintiffs and they have received the compensation. Above conclusion finds full support from the evidence of D.W.1 when he has deposed on oath that Ramjit and Hindu with defendant nos.3 and 4 were possessing the land which were acquired for the purpose of irrigation project. He has further asserted to have himself seen the notice of acquisition being shown by that Ramjit. It is his evidence that 7 manas of land from the share of Kama was acquired for the project. So the evidence as regards mutation, demarcation being cumulatively viewed with the evidence of D.W.1, the lower appellate court’s finding that the acquired land was from out of the share of the defendants is not at all seen to be a flawed one. The lower appellate court has also gone to discuss the evidence of P.Ws.1, 2 and 3 in great detail along with the documents relating to mutation and demarcation in recording a positive finding that the plaintiffs have the right, title and interest over the schedule ‘B’ property. There appears no such infirmity therein. The findings of the lower appellate court do not suffer from the vice of perversity. Rather, it is seen that the error committed by the trial court in making proper approach to the crux of the dispute in deciding the issues by not appreciating the evidence on record in their proper prospective has been rightly rectified by the lower appellate court. 7. For the aforesaid, the submission of the learned senior counsel for the appellants fails. The appeal thus does not merit admission as there surfaces no substantial question of law for consideration and answer. 8. Resultantly, the appeal stands dismissed. No, order as to cost.