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2017 DIGILAW 1231 (ORI)

Kamalini Panda v. State of Orissa

2017-10-31

D.DASH

body2017
JUDGMENT The appellant by filing this appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) has assailed the judgment and decree passed by the learned District Judge, Bolangir in Title Appeal No. 14 of 2002 dismissing her appeal under Section 96 of the Code. The appellant as the plaintiff has filed the suit, i.e., Title Suit No. 53 of 2000 in the Court of the learned Civil Judge (Sr. Division), Bolangir for declaration of her right, title, interest and confirmation of possession, alternatively for recovery of possession and permanent injunction insofar as the suit land is concerned. Her suit having been dismissed, she had filed the first appeal as aforesaid, which has also met the same fate. So, in this appeal while praying to set aside the judgment and decree passed by the first appellate Court, the plaintiff is praying for passing a decree in her suit granting her the reliefs as prayed for. 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. Plaintiff’s case is that the suit land originally belonged to one Abhaya Prasad Patnaik, who was in possession of the same. It is stated that on 20.12.1962, said Abhaya Prasad Patnaik sold the land to the plaintiff for a consideration of Rs. 85/- and delivered its possession. The transactions is said to have been evidenced by execution of a deed of sale by Abhaya Prasad Patnaik on a stamp paper. The plaintiff claims to have been in possession of the suit land described in schedule ‘B’ of the plaint as per the description contained in the record of the current settlement corresponds to the land as described in schedule ‘A’ of the plaint in accordance with the record of the settlement of the year 1936. It is stated that the plaintiff while in possession of the suit land sometime in the month of January, 2000 while was getting the land demarcated came to know that in the current settlement, it was recorded in the Rakhit Khata in the name of the State. It is stated that the plaintiff while in possession of the suit land sometime in the month of January, 2000 while was getting the land demarcated came to know that in the current settlement, it was recorded in the Rakhit Khata in the name of the State. In view of such recording ignoring the “Sthitiban Status” of a the land as also the plaintiff’s claim going to caste cloud upon the right of the plaintiff, she filed the suit after issuance of the notice under Section 80 of the Code notice as mandated in law which did not arouse any response. 4. The defendant in the written statement disputed the fact that the land described in schedule ‘A’ of the plaint are the as that of schedule ‘B’ and the description corresponds to each other. It is, however, stated that schedule ‘A’ land as per the record of the year 1936 stood recorded in the name of Dhobei Charan Pattnaik, Anam Pattnaik, Purusottam Pattnaik and Achut Pattnaik all sons of Basudeb Pattnaik. It is further stated that in respect of such recording they were never in possession of the schedule ‘A’ land and the said Abhaya Prasad Patnaik from whom the plaintiff claims to have purchased the suit land for a consideration of Rs. 85/- was never the Karta of the family and had not such authority to sell the suit land to the plaintiff. It is stated that he had never sold the suit land and the documents filed in support of the same are all fabricated documents. The case of the plaintiff that he has been in possession of the suit land stands denied. It is asserted that the recording of the suit land in the record of the current settlement is correct. 5. The trial Court on such rival pleadings is seen to have very rightly framed all the ten issues. On analysis of evidence in the backdrop of the rival case, it has answered issue no. 1 in favour of the plaintiff clearly holding that the land described in schedule ‘A’ of the plaint as per the records of 1936 settlement are the same land as described in schedule ‘N’ of the plaint in the record of the current settlement. 6. Insofar as the issue no. 1 in favour of the plaintiff clearly holding that the land described in schedule ‘A’ of the plaint as per the records of 1936 settlement are the same land as described in schedule ‘N’ of the plaint in the record of the current settlement. 6. Insofar as the issue no. 2 is concerned, upon scrutiny of evidence, the trial Court has found the property to be of Dhobei Charan Pattnaik, Anam Pattnaik, Purusottam Pattnaik and Achut Pattnaik and as such has held Abhaya Prasad Patnaik, who is said to be the vendor of the plaintiff in respect of the suit land as one of the co-shares. It has next held that the said Abhaya Prasad Patnaik was having no exclusive right, title, interest and possession over the suit land so as to sell the same in favour of the plaintiff clothing her with the right of ownership. Next it has answered that the plaintiff has not acquired any title by virtue of the sale as claimed by her from said Abhaya Prasad Patnaik and it had never been partitioned amongst the co-sharers. 7. As regards the possession of the suit land, taking up the controversy under issue no. 5 and finding out the evidence let in by the plaintiff to be insufficient to establish plaintiff’s possession of the suit land, the conclusion has been that the suit land is not in possession of the plaintiff and rather its possession as appearing to be with the State in view of the recording of the suit land. The answers to the issues having thus been returned, the suit has ultimately been dismissed. The appellate Court has affirmed such finding and thus has gone to confirm the result of the dismissal of the suit impugned and called in question in the appeal. 8. It is pertinent at this place to mention that as against the findings of the trial Court that the land described in schedule ‘A’ and schedule ‘B’ are the same land and that it is the sthitiban joint family property of Abhaya Prasad Patnaik no such cross objection under Order-41, Rule 22 had been filed before the first appellate Court. So, the answers to those issues have reached their finality. The plaintiff in this appeal now assails mainly the finding recorded under issue nos. So, the answers to those issues have reached their finality. The plaintiff in this appeal now assails mainly the finding recorded under issue nos. 2 and 3 and asserts that it has to be found that she has acquired absolute right, title and interest over the suit land and that she is not in possession of the suit land at the time of the institution of the suit. So, practically in this appeal, the respondent-State has now nothing to do on merit of its claim as laid in the suit. 9. The appeal has been admitted on the following substantial question of law: “i. Whether the defendant has not any locus standi to challenge the sale deed (Ext)1 in favour of the plaintiff? (ii) Whether the Courts below should have held that the presumptive value of Ext. 6 (ROR) has been sufficiently rebutted in view of the evidence of P.W.s. 1 to 5 coupled with 1986 ROR. And own pleadings of the defendant?” 10. Learned counsel for the appellants submitted that when the land does not belong to the State and the recording of the suit land in the current settlement is clearly erroneous, such land having been recorded in a rakhit khata despite the fact that the suit recorded in private individuals under Sthitiban status that too without proof of any fact of acquisition of title, the possession of the suit land ought to have been found with the plaintiff who has proved the transaction of the sale made by Abhaya Prasad Pattnaik, who has admitted the said fact in evidence. Learned Additional Government Advocate without disputing the position that on the face of the finding of the trial Court in respect of issue nos. 1, 2 and 3, the State has no title over the property, submitted that as per the record position remaining unquestioned for a long period and in view of the absence of proof from the side of the plaintiff by leading enough evidence showing that it is she who is in possession of the suit land, the Courts below have rightly held the State to be in possession of the suit land. He, of course, fairly submitted that such possession cannot, itself, enure to the benefit of the State irrespective of its lengthy so as to claim title over the property. He, of course, fairly submitted that such possession cannot, itself, enure to the benefit of the State irrespective of its lengthy so as to claim title over the property. His submission was that the suit of the plaintiff is not a properly constituted one and the plaintiff ought to have made all the heirs of the last recorded tenants, i.e., Dhobei Charan Pattnaik, Anam Pattnaik, Purusottam Pattnaik and Achut Pattnaik as parties in order to seek the relief of declaration of right, title and interest. He further submits that in view of the evidence on record, the Courts below have rightly arrived at a conclusion that the plaintiff has not established her possession over the suit land and, therefore, no fault can be found with the Courts below who have refused to grant the relief of possession and permanent injunction. 11. While going to address the rival contentions as above, it is seen that the Courts below ought not to have proceed ahead to decide the plaintiff’s claim of exclusive right, title and interest of the property and possession in the present suit in view of the finding that other co-sharers of Abhaya Prasad Patnaik are not before the Court as parties. The Courts below being thus not in a position to decide that issue in the absence of those surviving co-sharers concerning the suit property, the suit ought to have been simply dismissed keeping it open for the plaintiff to bring in a duly constituted suit in order to claim the reliefs as prayed for in the present suit if so advised and leaving said issue for being decide in that suit as to whether the plaintiff’s purchase of the suit land from Abhaya Prasad Pattanaik as asserted has clothed her with the title in respect of the suit land to the exclusion of all others, i.e., the rest of the heirs and successors of the original owners/co-sharers. Finding of possession of the suit land to be not resting with the plaintiff has been concurrently returned by the Courts below. That being purely a finding of fact, when this Court sees no such perversity in arriving at that finding in the matter of appreciation of evidence and when nothing has been shown before this Court to that effect in course of argument, this Court does not find any such justification to upset the same. That being purely a finding of fact, when this Court sees no such perversity in arriving at that finding in the matter of appreciation of evidence and when nothing has been shown before this Court to that effect in course of argument, this Court does not find any such justification to upset the same. It is time that in the event of a finding in respect of possession of the suit land in favour of the plaintiff in the present suit, the plaintiff could have been held entitled to the relief of injunction so as to be saved from dispossession at the instance of the defendants. So that as it may, it is needless to say that this finding also would remain open for being taken up for decision in accordance with the finding of title over the suit land in the suit if would so come to be subsequently instituted. 12. For the aforesaid discussion and reasons, the appeal stands dismissed. It is, however, made clear that the dismissal of this appeal would not stand on the way of the plaintiff to bring in afresh duly constituted suit claiming the reliefs as prayed, if so advised, which would stand to be decided on its own merit and in accordance with law. In the facts and circumstances, no order as to cost is passed. Appeal dismissed.