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2017 DIGILAW 1453 (ORI)

Gananath Samal v. Jharana @ Jhatia Nayak

2017-12-14

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. 1. Plaintiff is the appellant against reversing judgment. The suit was for realisation of Rs.1,400/-towards damages. 2. The brief facts of the case was that the plaintiff purchased Ac.0.40 dec. of land out of Ac.0.53 dec. in Khata No. 198, Plot No. 689 of village Mallikapur by means of a registered sale deed dated 25.09.1974 from defendant no.1. After sale, possession of the land was duly delivered to the plaintiff. He was in possession of the land. On 22.11.1985, the defendants cut and removed the paddy crops raised by the plaintiff, for which he sustained a loss of Rs.1,400/-. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. During pendency of the suit, the sole defendant died and his legal representatives were substituted. The legal representatives of defendant no.1 resisted the claim of the plaintiff pleading, inter alia, that the suit land was recorded in the names of Ananta Naik and Kela Naik, each having eight anna share. Ananta died leaving behind his two sons, namely, Narendra and Harekrushna, defendant no.1. Defendant no.1 had 1/4th share of the suit land. But defendant no.1 alienated excess of his share. It was further pleaded that the defendant no.1 borrowed an amount of Rs.500/-from the plaintiff in the year 1974 @ 30% per annum. He executed a mortgage deed of Rs.1,000/-. Other defendants were set ex parte. 4. On the inter se pleadings of the parties, the learned trial court struck four issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the document in question is a registered sale deed dated 25.09.1974, vide Ext.1. The defendants had cut and removed the paddy crops. Held so, it decreed the suit. The legal representatives of defendant no.1 filed Money Appeal No. 05 of 1992 before the learned Additional District Judge, Jaipur, which was allowed. 5. The appeal was admitted on the following substantial questions of law:- “(1) Whether the lower appellate court was justified in reversing the finding of fact of the lower court without giving adequate reasons for such reversal ? (2) Whether the lower appellate court committed an error in not considering the evidence as to the growing of the paddy by the plaintiff and removal of the same by the defendants ?” 6. Heard Mr. (2) Whether the lower appellate court committed an error in not considering the evidence as to the growing of the paddy by the plaintiff and removal of the same by the defendants ?” 6. Heard Mr. Manoj Das, learned Advocate on behalf of Mr. N.K. Sahu, learned Advocate for the appellant and Mr.D.P. Mohanty, learned advocate on behalf of Mr. B.H. Mohanty, learned Senior Advocate for the respondents. 7. Mr. Das, learned advocate for the appellant submits that the defendant no.1 had alienated Ac.0.40 dec. of land out of Ac.0.53 dec. in Khata No. 198, Plot No. 689 of village Mallikapur in favour of the plaintiff by means of a registered sale deed dated 25.09.1974, vide Ext.1. Possession of land was duly delivered to the plaintiff. The plaintiff was in possession of the suit land. He raised paddy crops. The defendants have no semblance of right, title and interest over the suit property. They cut and removed the paddy crops for which the plaintiff sustained a loss of Rs.1,200/-towards paddy and Rs.200/-towards the straw. On a threadbare analysis of evidence on record as well as pleadings, the learned trial court decreed the suit. But on untenable and unsupportable grounds, the learned lower appellate court allowed the same. The learned lower appellate court committed an error in not considering the evidence as to the growing of the paddy by the plaintiff and removal of the same by the defendants. 8. Mr. Mohanty, learned Advocate for the respondents conversely contends that the appeal does not involve any substantial question of law. The learned lower appellate court, on a threadbare analysis of evidence on record as well as pleadings, set aside the judgments and decree of the learned trial court. 9. Raising of paddy crops and cutting and removing the same is essentially a question of fact. On an anatomy of pleadings and evidence, both oral and documentary, the learned lower appellate court held that the consolidation officer has passed the order for recording of the land in favour of the defendants. The evidence adduced by the defendants is not sufficient to hold as to who was in possession of the suit property. The plaintiff had not taken possession of the suit land. Defendant no.1 was in possession of the suit land. There is no perversity or illegality in the said findings. The substantial questions of law are answered accordingly. 10. The evidence adduced by the defendants is not sufficient to hold as to who was in possession of the suit property. The plaintiff had not taken possession of the suit land. Defendant no.1 was in possession of the suit land. There is no perversity or illegality in the said findings. The substantial questions of law are answered accordingly. 10. As a sequel of the above discussion, the appeal fails and is dismissed. There shall be no order as to costs.