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2017 DIGILAW 1374 (ORI)

Purna Chandra Majumdar (Since dead) through LRs. v. State of Orissa

2017-11-29

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. 1. This is a plaintiff's appeal against reversing judgment. The suit was for declaration of right, title and interest and permanent injunction. 2. Case of the plaintiffs was that the suit land originally belonged to one Gangaram Gountia. He was a Thikadar of Village-Mongrapali. On 24.4.1938, he alienated the suit land in favour of Gangaram Teli. Gangaram Teli became a tenant under the Thikadar. Gangaram Teli sold the land to Nanjee Bhai Rath-plaintiff no. 2 by means of an unregistered sale deed dated 19.11.1938 for a consideration of Rs. 160/-. Thereafter, plaintiff no. 2 sold the suit land to plaintiff no. 1 by means of an unregistered sale deed dated 7.3.1942 for a consideration of Rs. 200/-. Plaintiff no. 1 constructed a katcha house over a portion of the suit land. While the matter stood thus, Encroachment Case No. 172 of 1976 was initiated against him. Order of eviction was passed. Against the said order, Appeal Case No. 3 of 1977 was filed before the S.D.O. Nuapara, which is sub-judice. The suit land had been wrongly recorded in the name of the Government. On the basis of erroneous entry in the ROR, defendant nos. 3 to 5 threatened the plaintiffs to dispossess from the suit land. With this factual scenario, the suit was filed. 3. Defendant no. 1 filed a written statement denying the assertions made in the plaint. It was pleaded that the suit property was recorded in the name of the State in the ROR published in the year 1965-66 as “Sarba Sadharana.” The Thikadar had no authority to alienate the suit land. The sale deed was void. No title had been passed to the plaintiff no. 1. Plaintiff no. 1 was the encroacher of the public property. Initiation of Encroachment Case No. 172 of 1976 was perfectly legal and justified. It is apt to state here that during pendency of the appeal, the plaintiff no. 1 died, whereafter his legal representatives have been substituted. 4. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence. Learned trial court came to hold that the plaintiff no. 1 has perfected title by way of adverse possession. The sale deed vide Ext.2 is invalid for want of registration. No title has been passed on the basis of Ext.2 to plaintiff no. 2 and consequently to plaintiff no. 1. Parties led evidence. Learned trial court came to hold that the plaintiff no. 1 has perfected title by way of adverse possession. The sale deed vide Ext.2 is invalid for want of registration. No title has been passed on the basis of Ext.2 to plaintiff no. 2 and consequently to plaintiff no. 1. It decreed the suit. Feeling aggrieved, defendants filed Title Appeal No. 25/13 of 1986-89 before the learned Subordinate Judge, Nuapara. Learned appellate court came to hold that the plaintiff no. 1 has not perfected title by way of adverse of possession. Held so, it allowed the appeal. 5. The second appeal was admitted on the following substantial question of law enumerated in Ground No. 1. “Whether the finding on Issue No. 5 (para 10) by the Appellate Court is justified in law in view of his conclusions that the plaintiff no. 1 is in possession of the suit land for more than 30 years.” 6. Heard Mr. Rama Chandra Rath, learned counsel for the appellants and Ms. Samapika Mishra, learned Addl. Standing Counsel for the respondents. 7. Mr. Rath, learned counsel for the appellants argues with vehemence that the suit land originally belonged to Gangaram Gountia. He was the Thikadar of Village-Mongrapali. He executed a Chirasthai Patta in favour of Gangaram Teli and received rent. Gangaram Teli was a tenant under the Thikadar. To press his legal necessity, Gangaram Teli sold the suit land to Nanjee Bhai Rathplaintiff no. 2 by means of an unregistered sale deed dated 19.11.1938. Thereafter, plaintiff no. 2 sold the suit land to plaintiff no. 1 by means of an unregistered sale deed dated 7.3.1942. Plaintiff no. 1 constructed a residential house over a portion of the suit land. He was in possession of the suit land peacefully, continuously and with hostile animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession. Initiation of encroachment case against plaintiffs is bad in law. Alternative submission of Mr. Rath is that in Khariar Zamidari, Thikadar and Zamidar were the landlords. The estate vested in the State after coming into force of the Orissa Estate Abolition Act (‘OEA Act’). Gangaram Teli became a deemed tenant under Sec. 8(1) of the OEA Act. Since he was the owner of the property, he alienated the suit land in favour of plaintiff no. 2; whereafter plaintiff no. The estate vested in the State after coming into force of the Orissa Estate Abolition Act (‘OEA Act’). Gangaram Teli became a deemed tenant under Sec. 8(1) of the OEA Act. Since he was the owner of the property, he alienated the suit land in favour of plaintiff no. 2; whereafter plaintiff no. 2 alienated the suit land in favour of plaintiff no. 1. He further submits that even if the value of the suit land was more than Rs. 100/- registration of the sale deed was not compulsory in Khariar as per Ramadhyani’s report. He further contends that the plaintiff no. 1 instituted the suit on the basis of his possessory title. The courts below committed a manifest illegality in not granting permanent injunction. 8. Per contra Ms. Mishra, learned ASC submits that Gangaram Teli was a Thikadar of the village. He had no authority to alienate the land in favour of Nanjee Bhai Rath-plaintiff no. 2. The value of the suit property was more than Rs. 100/-. The sale deed was required to be registered. The same having not been done, no title has been passed. The learned appellate court negatived the plea of adverse possession. There is no pleading that Gangaram Teli was a tenant. 9. The plaintiffs assert that Gangaram Gountia was a Thikadar of village Mongrapali. He had alienated the suit land along with other land in favour of Gangaram Teli. No document has been exhibited to show that Gangaram Gountia alienated the land in favour of Gangaram Teli. Gangaram Gountia has no authority to alienate the suit land. Further, Gangaram Teli alienated the land in favour of plaintiff no. 2 by means of an unregistered sale deed. Thereafter, plaintiff no. 2 alienated the suit land in favour of plaintiff no. 1 by means of an unregistered sale deed. The value of the suit property was more than Rs.100/-. The sale deed was to be compulsorily registered under Sec. 17 of the Registration Act. In view of the same, no title has been passed to the successive vendees. Since the plaintiff no. 1 was in unauthorised occupation of the Government land, encroachment case was initiated against him. Order of eviction was passed. He challenged the same before the S.D.O. Nuapara, which is sub judice. In view of the same, no title has been passed to the successive vendees. Since the plaintiff no. 1 was in unauthorised occupation of the Government land, encroachment case was initiated against him. Order of eviction was passed. He challenged the same before the S.D.O. Nuapara, which is sub judice. During hal settlement ROR, suit land has been recorded in the name of the State as “Sarba Sadharana.” On an anatomy of the pleadings and evidence, learned appellate court came to hold that the plaintiff no. 1 has not perfected title by way of adverse possession. Adverse possession is not a pure question of law but blended with facts. There is no perversity in the finding of the learned appellate court. 10. In the instant case as held above, the plaintiffs have no valid title. Sale can be effected by means of a registered sale deed, if the value of the property is more than Rs. 100/-. No authority has been cited before this Court that in Khariar, as per Ramadhyani’s Report Lambodar had the authority to alienate the land by executing unregistered sale deed. Ramadhani Report cannot override the Registration Act. There is no pleading that the plaintiff no. 1 was a deemed tenant. The substantial question of law is answered accordingly. 11. A priori, the appeal fails and the same is dismissed. There shall be no order as to costs.