Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 286 (ORI)

Maheswar Naik v. Banchhanidhi Naik

2017-03-17

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. The defendants are the appellants against a confirming judgment. 2. Respondents as plaintiffs instituted T.S.No.29 of 1990-I in the court of the learned Civil Judge (Jr.Division), Keonjhar for declaration of right, title, interest and confirmation of possession and in the alternative, recovery of possession, if they are dispossessed during pendency of the suit and permanent injunction. The case of the plaintiffs is that the suit schedule property is their ancestral property. They are in possession of the same. The Major Settlement R.O.R. was published in their name. The defendants, who have no semblance of right, title and interest over the suit property, have created disturbance in their possession. 2. Pursuant to issuance of summons, the defendants entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendants is that the plaintiffs executed an unregistered agreement cum sale deed in respect of the suit land in their favour and received a sum of Rs.600/-on 2.5.1968. They are in possession of the suit land. 3. On the inter se pleadings of the parties, the learned trial court struck nine issues. To prove the case, the plaintiffs had examined three witnesses and on their behalf, three documents had been exhibited. The defendants had examined five witnesses and on their behalf, four documents had been exhibited. The learned trial court came to hold that Ext. A is not a sale deed but an unregistered agreement for sale. No title was conveyed to the defendants. Held so, the learned trial court decreed the suit. The defendants had unsuccessfully challenged the decree and judgment of the learned trial court before the learned Civil Judge (Sr.Division), Keonjhar in T.A.No.8/96/23/96, which was eventually dismissed. 4. The Second Appeal was admitted on the substantial questions of law enumerated in grounds no. B & C of the appeal memo. The same are quoted below:- “(B) Admittedly the deed in question, Ext. A is an unregistered one, written on a plain paper. The learned trial court, having come to a conclusion that the signatures of the executants of the deed in question, Ext. A, are genuine and the learned appellate court having observed that non-impounding the document is an error of law, if both the courts below have committed an error in not impounding the document, Ext. A and treating the same as a deed of sale. A, are genuine and the learned appellate court having observed that non-impounding the document is an error of law, if both the courts below have committed an error in not impounding the document, Ext. A and treating the same as a deed of sale. (C) Admittedly the deed in question, Ext. ‘A’ does not indicate the khata or plot number of the land in dispute. But the same has been described by indicating the name of the Chaka and its boundary. D.W.5 also specifically states about boundary of the suit land. In the circumstances if the courts below have committed error of record in observing that the descriptions of the land have neither been mentioned in Ext.A nor deposed by the D.Ws.” 5. Heard Mr.D.P.Mohanty, learned Advocate for the appellants. None appeared for the respondents in spite of valid service of notice. 6. Mr.Mohanty, learned Advocate for the appellants argued with vehemence that the plaintiffs had executed an unregistered sale deed (Ext. A) in favour of the defendants in respect of the suit property. There is no denial to the fact that the plaintiffs had received an amount of Rs.600/-. Even if Ext. A is an unregistered deed, the defendants are liable to pay the said amount with interest. He further submitted that the plaintiffs are entitled to refund the amount received towards part consideration under Section 65 of the Contract Act. To buttress his submission, he relied on a decision of this Court in the case of State of Orissa and another Vs. Prathibha Prakash Bhavan, AIR 1995 Orissa 62. 7. Ext. A is an unstamped document of one plain paper. The signature of plaintiff no.1 appears on the bottom of the said document does not tally with the signature appearing in the plaint. The defendants put their signatures at the top of the deed. On the left side margin of the said paper the signatures of some persons appear. There is no description of suit property in Ext. A. At the top of the paper, after Rs.600/-, the figures written in words have been tampered. By no stretch of imagination, Ext.A can be construed as an agreement to sell. In view of the same, the question of refund of money by the plaintiffs does not arise. The substantial questions of law enumerated in grounds no. B & C are answered accordingly. By no stretch of imagination, Ext.A can be construed as an agreement to sell. In view of the same, the question of refund of money by the plaintiffs does not arise. The substantial questions of law enumerated in grounds no. B & C are answered accordingly. In the result, the appeal, being devoid of any merit, is dismissed. No costs.