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2017 DIGILAW 1123 (ORI)

Janha Dei v. State of Orissa

2017-10-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K. RATH, J. 1. This is a plaintiff’s appeal against reversing judgment in a suit for declaration of right, title, interest and permanent injunction. 2. The case of the plaintiff is that the suit land originally belongs to one Chandnama Devi, mother of defendant no.3. After her death, her son, defendant no.3 succeeded to the property. To meet his legal necessities, defendant no.3 sold the suit land along with other lands to one defendant no.4 in the year 1969 and received valid consideration. Possession was duly delivered to the vendee. The defendant no.4 was in possession of the land. At the time of alienation, the defendant no.3 was residing at Bhubaneswar. He could not execute the sale deed in favour of defendant no.4. On 8.5.1980 he executed a registered sale deed in favour of defendant no.4. In the year 1984 defendant no.4 sold the suit land to the plaintiff by means of a registered sale deed no.897 dated 14.5.1984 for a valid consideration and delivered possession to him. Since then the plaintiff is in possession of the suit land and paying rent to the defendants. Thereafter the plaintiff applied for mutation before the Tahasildar, Hindol-defendant no.2. But then the Tahasildar refused to mutate the said case on the ground that the suit land was included in the ceiling proceeding initiated against defendant no.3 under the O.L.R. Act, which was sub-judice. The R.I. threatened the plaintiff to dispossess, where after he instituted the suit seeking the relief mentioned supra. 3. The defendants 1 and 2 filed written statement denying the assertions made in the plaint. The case of the defendants is that a ceiling proceeding was initiated against defendant no.3. The suit schedule land was the subject matter of dispute in the ceiling surplus proceeding. The case was sub-judice. Thus, execution of sale deed was invalid and inoperative. 4. The defendants were subsequently set ex-parte. The learned trial court decreed the suit. The defendants appealed before the learned District Judge, Dhenkanal, which was subsequently transferred to the court of the learned Additional Civil Judge (Senior Division), Dhenkanal and renumbered as Title Appeal No.12 of 1991 /8 of 1995. The same was allowed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.(1), (2), (3), (4) & (5) of the appeal memo. The same was allowed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.(1), (2), (3), (4) & (5) of the appeal memo. The same are:- “(1) Whether the appellate court is correct and justified in setting aside the judgment and decree of the trial court in view of specific finding that delivery of possession of suit land was given upon transfer of land in question by proforma defendant no.3 in favour of Jatak Dei, vendor of plaintiff, in 1989, there is passing of sale consideration prior to O.L.R. Act coming into force and finding that Jatak Dei had acquired, right, title, interest and possession over the suit land from 1969 till 1984 when she sold under Ext.2 in favour of plaintiff and that thereafter plaintiff has acquired right, title, interest and possession over the suit land by paying rent to State under Exts.3 to 3/4 from the date of her purchase ? Is the appellate court justified in refusing title and possession of plaintiff as well as of her vendor since 1989 in absence of any material/evidence controverting/rebutting the evidence of plaintiff to that effect? (2) Whether the finding of declaring Exts.1 and 2 as void i.e. the registered sale deeds, is correct, in view of recital of the sale deeds and other contemporious documents, which were duly proved and were found to be genuine corroborated by ample oral evidence produced by plaintiff ? Is the appellate court correct in setting aside the same in absence of any evidence on behalf of defendants? (3) Whether the finding of non-abatement of appeal is correct particularly when legal heirs of Jatak Dei and Pratap Chandra Singh were not substituted in the title appeal and they died during pendency of appeal, the judgment and decree being a joint and indivisible one? (4) Whether the finding, in consideration of Section 45 of O.L.R. Act applies to the sale of suit land, is correct, particularly when on receipt of entire consideration money transfer was made and consideration delivery of possession was given in 1969 in favour of Jatak Dei by the proforma defendant no.3? (4) Whether the finding, in consideration of Section 45 of O.L.R. Act applies to the sale of suit land, is correct, particularly when on receipt of entire consideration money transfer was made and consideration delivery of possession was given in 1969 in favour of Jatak Dei by the proforma defendant no.3? (5) Whether the findings of appellate court are otherwise illegal, unjust and perverse and whether the appellate court is justified in setting aside the judgment and decree of trial court arriving at a different conclusion than the trial court without assigning cogent reasons for the same in absence of any evidence on behalf of defendants ?” 6. Heard Mr. Yesshan Mohanty, learned Sr. Advocate along with Mr. P.C. Biswal, learned Advocate for the appellant and Mr. R.P. Mohapatra, learned Additional Government Advocate along with Ms. Samapika Mishra, learned Additional Standing Counsel for the respondents. 7. Mr. Mohanty, learned Sr. Advocate for the appellant argues with vehemence that the defendants took several adjournments in the suit. Sufficient opportunity was provided to them. The defendants did not take any steps and as such they were set ex-parte. The learned trial court, on a threadbare analysis of the evidence on record and pleadings, came to hold that the plaintiff has right, title and interest over the suit land. On untenable and unsupportable grounds, the learned appellate court up set the finding of the learned trial court. The finding of the learned trial court that the suit schedule land was included in the ceiling proceeding is perverse inasmuch as there was no material before the learned appellate court to come to such a finding. 8. Conversely, Mr. R.P. Mohapatra, learned Additional Government Advocate for the respondents submits that the suit schedule land was the subject of matter of dispute in the ceiling proceeding. During pendency of that proceeding, the land was alienated by the land owner and as such alienation is bad in law. 9. The suit was posted to 22.3.91 for hearing. The defendants filed an application for adjournment. The same was rejected. The matter was taken up thereafter. Three witnesses were examined by the plaintiff. The judgment was delivered on 25.3.1991. No opportunity was provided to the defendants to cross-examine the witnesses. 9. The suit was posted to 22.3.91 for hearing. The defendants filed an application for adjournment. The same was rejected. The matter was taken up thereafter. Three witnesses were examined by the plaintiff. The judgment was delivered on 25.3.1991. No opportunity was provided to the defendants to cross-examine the witnesses. Further, though a plea was taken by the defendants that a ceiling proceeding was pending, but the number of the said ceiling proceeding was not mentioned in the written statement. There was no material before the learned appellate court to come to a finding that the suit schedule land was the subject matter of dispute in the ceiling proceeding. The said finding is perverse. 10. A priori, the judgment and decree of the courts below are set aside. The matter is remitted back to the learned trial court for de novo hearing. The parties are allowed to adduce evidence. In order to avoid further delay, the parties shall appear before the learned trial court on 10th November, 2017, on which date, the learned trial court shall fix a date of hearing and conclude the suit within a period of six months thereafter.