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2017 DIGILAW 287 (ORI)

Chaitana Majhi v. Phulamoni Soren

2017-03-17

A.K.RATH

body2017
JUDGMENT : DR. A.K. RATH, J. 1. Defendant no.1 is the appellant against a confirming judgment. 2. Opposite party no.1 as plaintiff instituted T.S. No.4 of 1984 in the court of the learned Sub-Judge, Baripada for declaration of title and recovery of possession. The case of the plaintiff is that the suit land along with other lands was the absolute property of one Baijhal Majhi, grandfather of defendant no.2. The same was recorded in the name of Baijhal Majhi in 1929 settlement ROR. After his death, the land was recorded in the name of Rengta Majhi @ Jayram Majhi, adopted son of Baijhal Majhi in Mutation Case No.1348 of 1940-41. After his death, his son, defendant no.2, remained in possession of the land. On 22.3.80, the plaintiff purchased the suit land by means of a registered sale deed for a consideration of Rs.4,000/-. In the year 1983, the defendant no.1 disturbed the possession of the plaintiff for which proceeding under Sec.145 Cr.P.C. was initiated. The same was dropped on 3.6.1987. With this factual scenario, the suit has been filed seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, the defendant no.1 entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendant no.1 is that the suit land belongs to Baijhal. His father’s sister Chuda was the concubine of Bijhal Majhi. Baijhal was maintaining Chuda till her death by giving paddy. After his death his son, Rengta could not pay maintenance Chuda regularly. Being pressed by caste Panchayat people, Rengta gave the suit land to Chuda and relinquished his right. Chuda was in possession of the land till her death. After Chuda, her brother Lalmohan became the owner of the land. The defendant no.1 took the plea of adverse possession. 4. On the interse pleadings of the parties, learned trial court struck seven issues. Out of which, issue no.5 is the pivotal one. The same is quoted hereunder. “(5) Whether Jayram was adopted son of Baijhal and whether defendant no.2 was in possession and was owner and whether the sale deed taken by plaintiff from defendant No.2 is valid and whether plaintiff was in possession?” 5. To substantiate the case, the plaintiff had examined four witnesses and on her behalf three documents had been exhibited. The defendants had examined four witnesses and on their behalf three documents had been exhibited. 6. To substantiate the case, the plaintiff had examined four witnesses and on her behalf three documents had been exhibited. The defendants had examined four witnesses and on their behalf three documents had been exhibited. 6. On an analysis of the evidence on record, both oral and documentary, and pleadings, learned trial court came to hold that Baijhal was the owner of the land. He sold the same to the plaintiff. The ROR had been issued in the name of the plaintiff. Held so, learned trial court decreed the suit. The defendant no.1 unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Mayurbhanj, Baripada in T.A. No.6 of 1990, which was eventually dismissed. 7. The second appeal was admitted on 18.12.1998 on the following substantial question of law enumerated in the ground nos.1, 6 and 8 of the appeal memo. The same are quoted hereunder. “1. For that the learned lower appellate court having found that the trial court wrongly held that the defendant No.1 failed to file a scrap of paper and discussed about Ext.A which is the certified copy of the musrim mistaken list where Bajinath admitted the possession of the defendant No.1 but wrongly considered, the same on the basis of a wrong proposition of law as the original document was not brought to the record nor had been confronted the same to P.W.2 without considering the fact that the trial court had rejected the prayer of the defendant No.1 by its order dt.15.11.89 for calling for the original of Ext. A from the record room. 6. For that the learned lower appellate court has absolutely erred in record in giving finding of possession in favour of proforma defendant No.2 without considering Ext. A when admittedly the defendant No.2 in his evidence had never stated when possession was delivered to him. 8. For that the learned lower appellate court has erred in law in disbelieving the plea of the defendant No.1 as to the relation of Chuda with Baijhal which was pleaded in the written statement and corroborated by D.W.2 and the same has not been controverted or demolished in the cross-examination and the learned courts should have accepted the relationship for which the family settlement was made giving the suit land to Chuda.” 8. Heard Dr. Sujata Dash, learned counsel for the appellant. Heard Dr. Sujata Dash, learned counsel for the appellant. None appears for the respondent in spite of valid service of notice. 9. Dr. Dash, learned counsel for the appellant argued with vehemence that the courts below committed manifest illegality and impropriety in not considering Ext. A wherein Bajinath admitted the possession of defendant no.1. 10. Reliance placed on Ext. A is totally misplaced. Ext. A is the Musarim’s Mistake List. Any recording thereon cannot confer title. Bajinath Majhi executed a registered sale deed no.1522, dtd.22.8.80, Ext.1, in favour of Fulamani Soren, the plaintiff for a valid consideration. Possession of the land was duly delivered to the vendee. The name of the plaintiff has been recorded in the ROR of the year 85, Ext.2. There is no perversity in the findings of the courts below. The substantial questions of law enumerated above are answered accordingly. 11. In the result, the appeal, devoid of merit, is dismissed. No costs.