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2017 DIGILAW 1180 (ORI)

Jitru Mali v. Narahari Mali

2017-10-23

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This is a defendants’ appeal against the judgment and decree dated 29.6.2006 and 12.7.2006 respectively passed by learned Additional District Judge, Nabarangpur in R.F.A. No. 14 of 2004 confirming the judgment and decree dated 12.7.2004 passed by learned Civil Judge (Jr.Division) Nabarangpur in T.S. No. 4 of 1998. 2. The dispute pertains to an area Ac.0.49 cent. appertaining to hal khata no.74, plot no.950 of mouza-Ambadulla in the district of Nabarangpur. The case of the plaintiff is that the suit schedule land is locally known as “Khosola Khandi”. As per the hal R.O.R., the same is known as “Kottari Godara”. His father Damu Malli purchased the land from defendants by means of a registered sale deed dated 2.4.1979 for a consideration of Rs.600/-. Thereafter the land was mutated in Mutation Case No. 1154/79 and, accordingly, R.O.R. was issued in favour of his father. After death of his father, he is in possession of the suit land. The defendants have no semblance of right, title and interest over the suit land. They created disturbance in his possession in the year 1991 for which a proceeding under Section 145 Cr.P.C. was initiated before the Executive Magistrate, Nabarangpur. By order dated 8.5.1998, the Executive Magistrate, Nabarangpur disposed of the case asking the parties to approach the Civil Court. With this factual scenario, he instituted the suit for declaration of right, title and confirmation of possession. 3. The defendants filed written statement denying the assertions made in the paint. They denied the execution of the sale deed. According to them, they sold the some “Atala” land to the plaintiff with specific boundary mentioned therein. The land was locally known as “Jodamuhana”. The plaintiff is in possession of the said land. Due to mistake, the above land was wrongly recorded in the name of one Bali Mali, who was not in possession. They were all along under the impression that Jodamuhana land was recorded in their names in the R.O.R. Accordingly, Bali Mali expressed his intention before the settlement authority that he had no objection, if the land was recorded in the name of the father of the plaintiff. It was further pleaded that the suit land fell to the share of defendant no.1. He is in peaceful possession of the said land. The plaintiff has no semblance of right, title and interest over the same. It was further pleaded that the suit land fell to the share of defendant no.1. He is in peaceful possession of the said land. The plaintiff has no semblance of right, title and interest over the same. In the year 1991 the plaintiff created disturbances in their possession to occupy “Kosala Khandi” land, which was under the possession of defendant no.1. Thereafter defendant no.1 filed a petition before the Tahasildar, Nabarangpur. The R.I. submitted the report on 11.10.1991 stating therein that the plaintiff was not in possession of the “Kosal Khandi” land. In the settlement operation, the plaintiff in connivance with the Settlement Authorities managed to record the land in his favour. No demarcation was made at the time of sale. The defendants are in possession of the suit land peacefully, uninterruptedly, continuously and with the hostile animus to the plaintiff and as such perfected title by way of adverse possession. It was further pleaded that the description of the suit land in the sale deed was wrong; so also the boundary mentioned in the plaint. 4. On the inter se pleadings of the parties, the learned trial court struck eight issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, four documents had been exhibited. The defendants had examined one witness and ten documents had been exhibited on their behalf. The learned trial court came to hold that there is no ambiguity in the description of plot number either in the sale deed, vide Ext.1 or in the plaint. The sale deed executed by the defendants in favour of the father of the plaintiff shows that the defendants had sold “Kosala khandi” land appertaining to khata no.45, plot no.487 ad-measuring Ac.0.47 cents. After sale, the land was mutated in favour of the father of the plaintiff. The plaintiff used to pay rent. In the final R.O.R. the land was recorded in the name of the father of the plaintiff. It further held that description of the suit land was not wrong. The same had been correctly described by giving survey khata number and plot number. The defendants have no semblance of right, title and interest over the same. Held so, it dismissed the suit. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Nabarangpur in R.F.A. No. 14 of 2004, which was eventually dismissed. The defendants have no semblance of right, title and interest over the same. Held so, it dismissed the suit. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Nabarangpur in R.F.A. No. 14 of 2004, which was eventually dismissed. 5. Mr. Basudev Mishra, learned Advocate for the appellants submitted that the defendants have sold Jodamuhan land, but not Kosala Khandi land to the father of the plaintiff. Jodamuhan land was all along in possession of the plaintiff. By means of a partition the same fell to the share of defendant no.1. Defendant no.1 is in possession of the same. The settlement R.O.R. neither creates nor extinguishes title. The defendant no.1 is in possession of the suit land peacefully, continuously with the hostile animus to the plaintiff and as such has perfected title by way of adverse possession. 6. The submission of Mr. Mishra, learned Advocate is difficult to fathom. On an anatomy of the pleadings of the parties and evidence on record, both the courts below have concurrently held that the defendants sold an area Ac.0.49 cents appertaining to khata no.74, plot no.950 of mouza-Ambadulla. After sale, the land was mutated in the name of the father of the plaintiff. R.O.R. was published in the name of father of the plaintiff. There is no ambiguity in the description of plot number either in the sale deed or in the plaint. These are essentially findings of fact. There is no perversity or illegality in the same. 7. Resultantly, the appeal is dismissed, as the same does not involve any substantial questions of law.