Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1388 (ORI)

Madhusudan Tripathy v. Nityananda Kharsel

2017-12-01

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment. The suit was for declaration of right, title and interest, correction of record of right and eviction of the defendants. 2. Case of the plaintiff is that the suit land originally belonged to Machhindra Kharsel-defendant. On 11.5.70, the defendant sold the suit land in favour of the plaintiff by means of a registered sale deed for a consideration of Rs.1600/-and delivered possession. Since then, the plaintiff is in possession of the same. During the current settlement operation, note of possession had been recorded in favour of the defendant. Such recording is incorrect and liable to be deleted. In the event the court finds that the defendant is in possession of the land, he be ejected. 3. During pendency of the suit, the defendant died, whereafter his representatives (widow and sons) were substituted. They filed written statement. The case of the defendants was that the original defendant-Machhindra had not executed any sale deed in favour of the plaintiff. No consideration was paid. Possession of the land was never delivered to the plaintiff. Sale deed, if any, was forged and fabricated. Machhindra was an illiterate person. He was in possession of the suit land. After him, the defendants are in possession of the suit land. Plaintiff being a Revenue Inspector had managed to get the suit land recorded in his name in the current settlement. It was further pleaded that the suit was not maintainable for non-impletion of the State of Orissa which is a necessary party. 4. On the interse pleadings of the parties, learned trial court struck eleven issues. Parties led evidence. Learned trial court came to hold that the plaintiff had no title over the suit land as he had failed to prove due execution of the sale deed by Machhindra. No consideration was paid to him by the plaintiff. Machhindra had no absolute right to sell the suit land in violation of the conditions in the Nazul. State of Orissa is a necessary party to the suit. Held so, it dismissed the suit. The unsuccessful plaintiff filed appeal before the learned District Judge, Balangir, which was subsequently transferred to the court of the learned Additional District Judge, Balangir and renumbered as T.A. No.81/60 of 1991-92. The appeal was eventually dismissed. 5. The second appeal was admitted on the following substantial questions of law. “1. Held so, it dismissed the suit. The unsuccessful plaintiff filed appeal before the learned District Judge, Balangir, which was subsequently transferred to the court of the learned Additional District Judge, Balangir and renumbered as T.A. No.81/60 of 1991-92. The appeal was eventually dismissed. 5. The second appeal was admitted on the following substantial questions of law. “1. Whether the courts below committed gross error in not taken into consideration the evidence from the side of the plaintiff that there was proper passing of consideration ? 2. Whether the lower court committed error of records as indicated in Ground No.H of the grounds of appeal.” Ground No.H enumerated in the appeal memo is as follows: “For that both the learned courts below have reached at the finding that plaintiff and failed to prove passing of consideration in execution of the sale deed Ext.3 on the wrong premises that the P.Ws. had made discrepant statements in their deposition before the Court. This is wholly wrong.” 6. Heard Mr. Birendra Kumar Nayak on behalf of Mr. Basudev Pujari, learned counsel for the appellant and Mr. Budhiram Das on behalf of Mr. N.C. Pati, learned counsel for the respondents. 7. Mr. Nayak, learned counsel for the appellant submits that the original defendant-Machhindra was the owner of the suit land. To press his legal necessity, he alienated the same in favour of the plaintiff by means of a registered sale deed dated 11.5.70 for a consideration of Rs.1600/-. Possession was duly delivered to the plaintiff. Plaintiff was in possession of the suit land. The witness examined by the plaintiff unequivocally stated that the consideration has been passed. But then, the courts below committed a manifest illegality and impropriety in holding that the consideration was not passed. The judgment of the courts below suffers from vice of the non-application of mind. 8. Per contra, Mr. Das, learned counsel for the respondents submits that both the courts below concurrently held that consideration has not passed. There is no perversity in the findings of the courts below. 9. On an anatomy of the pleadings and evidence, both oral and documentary, the courts below held that consideration has not been passed. This is essentially a finding of fact. There is no perversity in the same. The substantial questions of law are answered accordingly. 10. In wake of aforesaid, the appeal, sans merits, deserves dismissal. Accordingly, the same is dismissed. On an anatomy of the pleadings and evidence, both oral and documentary, the courts below held that consideration has not been passed. This is essentially a finding of fact. There is no perversity in the same. The substantial questions of law are answered accordingly. 10. In wake of aforesaid, the appeal, sans merits, deserves dismissal. Accordingly, the same is dismissed. No costs.