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2017 DIGILAW 1289 (ORI)

Nityananda Giri v. Binoda Mohakud

2017-11-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 1. This is defendants’ appeal against a confirming judgment. 2. Plaintiffs-respondents instituted T.S. No.15 of 1985 in the court of the learned Civil Judge (Junior Division), Karanjia for declaration of right, title and interest and recovery of possession. The case of the plaintiffs is that they are the sons of Dasarathi Mohakud. The suit land originally belonged to Parama Mahakud. In the year 1975, Parama Mahakud sold the suit land to Lochan Mohakud by means of a registered sale deed. On 6.11.1984, Lochan Mahakud sold the suit land to the plaintiffs by means of a registered sale deed for a valid consideration and delivered possession. Since then the plaintiffs are in possession of the suit land. On 1.6.1985, the defendants having no right, title and interest over the suit land sown paddy in the suit land. On 22.2.1985, the defendants constructed a thatched house thereon. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. Defendants filed a written statement denying the assertions made in the plaint. It was pleaded that in the year 1955 Srihari Giri, father of defendants, had purchased the suit land from Parama Mahakud by an oral sale for a consideration of Rs.80/- and took delivery of possession. After him, they are in possession of the suit land. Parama Mahakud had no saleable interest over the suit land and as such, sale deed executed by Parama Mahakud in favour of Lochan Mahakud and then by Lochan Mahakud in favour of the plaintiffs cannot create any right either in favour of Lochan Mahakud or in favour of the plaintiffs. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence. The suit was dismissed. The plaintiffs filed appeal before the learned Civil Judge (Senior Division), Karanjia. The learned lower appellate court set aside the judgment and decree and remitted the matter back to the learned trial court for de novo hearing. Learned trial court came to hold that the sale deed vide Ext.1 is valid and genuine one. The plaintiffs had purchased the suit land vide Ext.1. They have right, title and interest over the same. It disbelieved the oral sale of the suit land in favour of the father of the defendants. The defendants are in possession of the suit land. Held so, it decreed the suit. The plaintiffs had purchased the suit land vide Ext.1. They have right, title and interest over the same. It disbelieved the oral sale of the suit land in favour of the father of the defendants. The defendants are in possession of the suit land. Held so, it decreed the suit. Defendants unsuccessfully challenged the judgment and decree in Title Appeal No.2 of 1995, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law. The same are - “(a). Whether the learned courts below were correct in rejecting the defendant/appellants’ case of oral sale when such a sale was for Rs.80/- not required to be registered under Section 17 of the Registration Act, and when it was followed by delivery of possession under Sec. 54 of the T.P Act. 2. Whether the learned courts below were correct in accepting Ext.2 the alleged source of title of the plaintiff/respondents as genuine merely on the so-called unambiguous receipts over-looking the overwhelming evidence challenging its genuineness. 6. Mr. T.K Patnaik, learned advocate on behalf of Mr. J. Patnaik, learned Senior Advocate for the appellants submitted that the father of the defendants had purchased the suit land from recorded tenant Parama Mahakud for a consideration of Rs.80/- It was an oral sale. Delivery of possession of the suit land was made to their father. They are in possession of the suit property. Both the courts below committed manifest illegality in disbelieving the oral sale. 7. Per contra Mr. D.K. Mohapatra, learned counsel for the respondents, submitted that the courts below concurrently held that Lochan Mahakud sold the suit land to the plaintiffs by means of a registered sale deed for a valid consideration and delivered possession. The defendants failed to substantiate the plea of oral sale. Rightly, the suit was decreed. 8. The suit land originally belonged to Parama Mahakud. He sold the land to Lochan Mahakud in the year 1975 by means of a registered sale deed. While the matter stood thus, to press his legal necessity, Lochan Mahakud sold the land to the plaintiffs by means of a registered sale deed dated 6.11.1984 for a valid consideration and thereafter delivered possession. On a threadbare analysis of the evidence on record as well as pleadings both the courts below negatived the plea taken by the defendants that their father had purchased the property from the recorded owner. On a threadbare analysis of the evidence on record as well as pleadings both the courts below negatived the plea taken by the defendants that their father had purchased the property from the recorded owner. The defendants had failed to substantiate the plea of oral sale. These are essentially the finding of facts. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 9. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.