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2017 DIGILAW 647 (ORI)

Pareshnatha Sahoo v. Mst. Parbati Bariha

2017-07-03

D.DASH

body2017
JUDGMENT : 1. This second appeal has been filed calling in question the judgment and decree passed by learned Additional District Judge, Sambalpur in Title Appeal No. 21/3 of 2000/2001 arising out of the judgment and decree passed in T.S. 23 of 1995 on the file of learned Civil Judge (Sr. Divn.), Kuchinda. 2. The appellants along with one Mahesh Prasad Sahu had filed the above noted suit for declaration of their right, title, interest and possession over the suit land and for issuance of permanent injunction against the defendant-respondents from interfering in their possession in respect of the suit land. The subject matter of the suit comprises of the land described in schedule ‘A’ and ‘B’ of the plaint. The trial court refused to grant the relief of declaration of right, title and interest in respect of land under both the schedule in favour of appellants and Mahesh Prasad Sahu, the plaintiffs. It however granted the relief of permanent injunction in protecting their possession in respect of the entire suit land restraining the respondent no. 2-defendant no.2 who was the appellant in the first appeal from interfering in the peaceful possession of the plaintiff-appellants and Mahesh over the suit land. Aggrieved by the said judgment and decree, the respondent nos. 2-defendant no.2 filed the first appeal challenging the grant of decree for permanent injunction as stated above. The appellants along with Mahesh being respondent nos. 1 to 3 in the first appeal then filed cross objection urging therein that the refusal to grant a decree for declaration of their right, title and interest over the suit land is not justified and that ought to have been so granted in their favour by the trial court. Accordingly, they prayed for the said relief. The first appellate court finally confirmed the judgment and decree passed by the trial court in ultimately refusing the prayer for declaration of right, title and interest of the plaintiff-appellants and Mahesh in so far as the suit land is concerned. It further varied the decree for permanent injunction by confining the said relief in respect of the land described in schedule ‘A’ of the plaint except the land under the part plot no. 890 (mutation plot no. 890/1556) measuring Ac.0.07 decimals, part plot no. 893 (mutated under plot no. 893/1557) measuring Ac. 0.01 decimal and the land in plot no. 895 measuring Ac. 0.04 decimals. 890 (mutation plot no. 890/1556) measuring Ac.0.07 decimals, part plot no. 893 (mutated under plot no. 893/1557) measuring Ac. 0.01 decimal and the land in plot no. 895 measuring Ac. 0.04 decimals. The appeal thus stood allowed in part with the above modification to the decree for permanent injunction as had been passed by the trial court with the dismissal of the cross objection filed by the appellants as well as Mahesh being the grieved plaintiffs questioning the refusal in passing a decree declaring their right, title and interest over the schedule ‘A’ as well as schedule ‘B’ land. In view of the above result in the first appeal, the unsuccessful plaintiff nos. 1 and 2 have carried this second appeal. 3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 4. Plaintiffs’ case is that the property described in schedule ‘A’ of the plaint belonged to one Jairam Khamari, a member of Scheduled Tribe who had his wife Uma; three daughters namely, Jamuna, Tara and Basa and one son namely, Ganju. Ganju had predeceased Jairam. On the death of Jairam, the land stood recorded in the name of the wife of Jairam namely, Uma. The defendant no. 1 is said to be legal representative of Uma being her surviving daughter. It is stated that during life time of Jairam, he had orally sold schedule ‘A’ land to one Haricharan Sahu, who happens to be the father of plaintiff nos. 2 and 3. The possession of the said land being delivered by Jairam to Haricharan, he with his brother Suklal, the father of plaintiff no.1 are said to have remained in possession of the said land. It is further stated that in the direction of recognition of said factum of oral sale, the defendant no. 1 with others executed a plain paper document under Ext. 1 on 23.4.65. It is further alleged that when the plaintiffs were in possession of schedule ‘A’ land, one Laxman Gour who was in forcible possession of the land under schedule ‘B’ since the year 1969 had already acquired title over the said land by adverse possession. The plaintiffs came to possess said land in possession of Laxman Gour since he abandoned the possession. In the year 1995, the plaintiff no. The plaintiffs came to possess said land in possession of Laxman Gour since he abandoned the possession. In the year 1995, the plaintiff no. 1 constructed a wall of his house covering a part of schedule ‘A’ land. It is said that at that time defendant no. 2 asked him to stop the construction till a demarcation is made in respect of his purchased land. Since such assertion of defendant no. 2 went to cast cloud on the title of the plaintiffs, they filed the suit for declaration of their title over the land under schedule ‘A’ as well as schedule ‘B’ with consequential relief such as a decree for permanent injunction in protecting their possession from threatened interference with it by the defendant no. 2. 5. The defendant no. 2 in his written statement has averred that his father of Mathura Prasad Chourasia had purchased the suit land along with other land for a consideration of Rs.250/- on 8.6.41 from the daughters of original owner Jairam namely Jamuna and Tara who had executed a plain paper document in that regard. It is said that they remained in possession over the said land and accordingly perfected his title. Out of the said purchased land, the father of defendant no. 2 had permitted Laxman Gour to construct a house over the land measuring Ac.0.01 dec. and accordingly Laxman had remained in possession of the same. However, Laxman thereafter left the possession. It is his case that despite the above purchase of the land, it has been wrongly recorded in the name of the plaintiffs. It is next stated that defendant no. 1 approached the defendant no. 2 to help her in clearing a loan by giving money and also to come to her aid by providing funds for her treatment. So for that reason she expressed her wish to alienate the suit land in his favour. The defendant no. 2 in order to regularize the earlier oral transaction which was not evidenced by any supporting document agreed to the said proposal to purchase the suit land. It is said that defendant no. 1 and her sons first executed an agreement to sell the land under Ext.A and received part payment of consideration of Rs.500/-as against the agreed consideration of Rs.15000/-. Thereafter, the defendant no. It is said that defendant no. 1 and her sons first executed an agreement to sell the land under Ext.A and received part payment of consideration of Rs.500/-as against the agreed consideration of Rs.15000/-. Thereafter, the defendant no. 1 and her sons applied for permission to sell the land and that having been granted in Misc. Case No. 35 of 1993 by order dated 21.3.94 under Ext. B, registered sale deed under Ext. C had come into being. The defendant no. 1 claims to have paid the balance consideration. So it is said that defendant no. 2 with the members of his family are in possession of the suit land since 1941. The defendant no. 1 filing the written statement denied the sale in favour of the defendant no. 2. But thereafter she did not come forward to contest the suit. 6. The trial court framing necessary issues first of all going to deal with the claim of the right, title and interest of the plaintiffs over the suit land, upon analysis of the evidence in the backdrop of rival claim of the parties has concluded that the plaintiffs have failed to prove their right, title and interest over schedule ‘A’ and ‘B’ land.. So this issue has been answered against the appellants and Mahesh Prasad Sahu which has led to the refusal of the said prayer made in the suit. 7. Next coming to the prayer for grant of permanent injunction on evaluation of evidence, the trial court held that the plaintiffs have the right to protect their possession against the invasion of defendant no. 2 and accordingly said prayer has been allowed. 8. The first appellate court in so far as the schedule ‘A’ land is concerned has found as under: “Thus neither the plaintiffs predecessor in interest namely Haricharan could acquire title by virtue of the alleged oral sale dtd. 1.2.41 nor the defendants no.2’s father could become the owner by virtue of the plain paper document dtd. 8.6.41. This is all with regard to schedule ‘A’ land. 9. In respect of schedule ‘B’ land, the finding has been that the plaintiffs have failed to establish their case to have acquired title by adverse possession as per their claim. The defendant no. 2 has also failed to establish his title by adverse possession in respect of that land as has been pleaded. 9. In respect of schedule ‘B’ land, the finding has been that the plaintiffs have failed to establish their case to have acquired title by adverse possession as per their claim. The defendant no. 2 has also failed to establish his title by adverse possession in respect of that land as has been pleaded. However, it has been held that the plaintiffs basing on their possession cannot maintain the suit for injunction in respect of land under plot no. 895/1556 and 893/1557 against the defendant no. 2 who has purchased the said land. The suit has been found to be maintainable only in respect of the plots of land remaining untravelled by the registered sale deed standing in favour of defendant no.2. So, finally the plaintiffs have been found as not entitled to the decree for declaration of their title in respect of schedule ‘A’ and “B”. They of course have been held entitled to the decree for permanent injunction in respect of schedule ‘A’ land excepting the land under plot no. 890 (mutated plot no. 890/1556) measuring Ac.0.07 dec., part plot no. 893 (mutated plot no. 893/1557) measuring Ac. 0.01 dec. and plot no, 895 measuring Ac. 0.04 dec. 10. The second appeal has been admitted by order dated 1.3.2006 on the substantial question of law as enumerated in ground no. 3 of the memorandum of appeal. The same in verbatim is reproduced herein below:- “For that findings of the learned Trial Court and lower Appellate Court is that Parabati Bariha, Respondent No-1 as Defendant No-1 has not examined. Admission in pleading is a best piece of evidence than others. Since she has admitted the claim of the Appellants and Pro-Respondents, the Court is bound to take the pleading in W.S. as evidence at the time of passing the Judgment and Decree. Court cannot override the admission of Respondent No-1 as Defendant No-1 in any manner taking a wrong/erroneous findings that she has not been examined. Since she is a Defendant No-1 and contesting the case by filing a W.S. It was not duty of the Appellants and Pro. Respondent to adduce evidence by calling defendant No-1 in Trial Court from their side.” 11. Learned counsel for the appellants contends that since defendant no. Since she is a Defendant No-1 and contesting the case by filing a W.S. It was not duty of the Appellants and Pro. Respondent to adduce evidence by calling defendant No-1 in Trial Court from their side.” 11. Learned counsel for the appellants contends that since defendant no. 1 has not at all denied the claim of the plaintiffs and on the other hand has gone to deny the sale in favour of the defendant no.2 as also their prior possession, the courts below have erred in law by denying the plaintiffs entitlement to the relief of their declaration of right, title and interest over schedule ‘A’ and ‘B’ land. According to him, the defendant no.1’s admission in the written statement ought to have been taken as the proof of the case of the plaintiffs and on that basis the finding ought to have been returned that the plaintiffs have established their case for the relief of declaration of title besides the relief of injunction. So the non-examination of said defendant no.1 as a witness on behalf of the plaintiff and non-recording of her evidence ought not to have been viewed adversely to the case of the plaintiffs. It is submitted that unnecessarily the courts below have attached much importance on the said aspect which is not tenable in the eye of law. He next contends that there being overwhelming evidence of possession of the plaintiffs over the entire suit land, the lower appellate court has erred in law by varying the decree for permanent injunction. 12. Learned counsel for respondent no.2 first of all raises the point as regards the scope of adjudication of this appeal. According to him, the plaintiff’s now in one second appeal cannot be permitted to challenge the negation of their claim in respect of the relief of declaration of right, title and interest over the suit land passed by the courts below as also the variance/modification of the decree of permanent injunction as ordered by the first appellate court. He contends that the cross-objection of the plaintiffs having been dismissed, and as that relates to the right, title and interest prayer, this appeal can only be related to that which may now be the scope of the appeal. He contends that the cross-objection of the plaintiffs having been dismissed, and as that relates to the right, title and interest prayer, this appeal can only be related to that which may now be the scope of the appeal. The variance of decree for permanent injunction, having been passed in the first appeal filed by the respondent no.1 that cannot stand as the subject matter of this appeal. According to him, the substantial question of law if read properly, that position clearly emerges out that keeping that view of the matter only the appeal has been admitted on the substantial question of law as aforesaid. 13. Before proceeding to address the rival submission in answering the substantial question of law, let it be placed on record that the suit being for the relief declaration of right, title and interest, the plaintiffs have either to stand or fall on their own and they cannot take the advantage of the failure of the defendants or the weakness in establishing their claim or with the weakness of their defence. 14. Both the courts below have concurrently found the plaintiffs to have failed to establish their claim of right, title and interest over both schedule ‘A’ and ‘B’ land. The substantial question of law centers round the legal aspect as to when the defendant no. 1 has not denied the plaintiffs said claim of right, title and interest as set up in the plaint by questioning the same in the written statement and when thereafter she has remained silent all through the suit whether that is enough to inure to the benefit of the plaintiffs in getting such declaration particularly when the defendant no.2’s claim over the so called purchased land has not been so established as asserted. So only with the answer as foresaid, the question of tenability of the modification of the decree of permanent injunction if so justified or not would arise for consideration whether it would stand as it is or that if that of the trial court be restored. 15. The plaintiffs’ case in specific as placed be touched again. Admittedly, the property belonged to Jairam, a member of Scheduled Tribe. It is said that he died leaving behind his widow and three daughters. 15. The plaintiffs’ case in specific as placed be touched again. Admittedly, the property belonged to Jairam, a member of Scheduled Tribe. It is said that he died leaving behind his widow and three daughters. It is next said that the defendant no.1 being the surviving daughter of Jairam has inherited the interest of Jairam which was remaining in the hands of his widow, Uma. Jairam being a member of Scheduled Tribe, on his death, Uma inherited the same being his widow with a limited interest that she got over the estate in the absence of son or son’s widow or sons son of Jairam surviving. On her death the property has to pass on to the heirs of Jairam as on that date subject to the availability of the property if not so alienated for legal necessity. There being no such sale, the defendant no.1 being the surviving daughter thus inherited the property of Jairam. The plaintiffs claim to have been in possession of the property in schedule ‘A’ since the time of his father on the basis of oral purchase from Jairam with effect from 01.02.41 and then on 23.4.65, he again claims to have got a plain paper document being executed by defendant no.1, her husband and one Tara Bewa acknowledging the said sale. It is said that again on 29.6.92, the defendant no. 1 made such an acknowledgement. Next in respect of schedule ‘B’ land, the plaintiffs claim to be in long possession after possession over said land was abandoned by one Lachhman Gour in the year 1969. So the claim of title for that land is by way of perfection by adverse possession. 16. The courts below have concurrently held that the plaintiffs have failed to establish their claim of title over the schedule ‘A’ and ‘B’ land. Whether the approach of the courts below and the final outcome is by proper application of the settled position of law or not in essence appears to be the substantial question of law as framed for admission as can be well culled out. 17. The lower appellate court is found to have taken much of pain in re-evaluating of evidence in order to judge the sustainability of the finding of the trial court on that score. 17. The lower appellate court is found to have taken much of pain in re-evaluating of evidence in order to judge the sustainability of the finding of the trial court on that score. So far as the schedule ‘A’ land is concerned, each of the documents relied upon by the plaintiffs has been examined in great detail and both of them have been found be not in any way going to help the case of the plaintiffs. The oral sale has not been proved to the satisfaction of the court by examining the witnesses. No explanation is there that no such persons standing as the witnesses to the so called oral sale are not living. That apart the said claim pales into insignificance in view of the subsequent claim based upon the documents as are said to have been obtained. The Record of Right produced in support of the case does not find reference to the documents pressed into service by the plaintiffs to the oral sale or to the subsequent documents. This pushes the plaintiffs’ case into the room of serious doubt which is seen to have not been cleared. The document Ext.1 is not the document evidencing the sale. It finds mention therein about the earlier sale said to have been standing in favour of the plaintiffs and that too one registered document dated 01.11.1951. No such registered document has seen the light of the day. The important date of the oral sale appears to have been further tinkered with in that document which is clearly visible to the naked eye which has been rightly taken note of by the lower appellate court being the final court of fact. In such state of affairs, the pleadings are seriously challenged by the defendant no.2 who has not only denied such claim of the plaintiffs but also staked the claim of title of his own at last to have been derived through one registered sale deed. The mere averments of the defendant no.1 in the written statement even though taken to be in the direction of supporting the case of the plaintiffs, those cannot be taken to be enough proof of title in the eye of law for being able to obtain the decree of declaration of their right, title and interest over the suit schedule ‘A’ land. 18. 18. The lower appellate court has also taken into consideration the documents standing in favour of the defendant no.2 and his plea of oral sale has been found to be unworthy of acceptance so as to lead to a finding that the defendant no.2’s father had acquired title over the said land by a plain paper document dated 08.06.1941 which has not been accepted. This Court does not find any justification to interfere with the said finding which appears to be founded upon just and proper analysis of evidence in the touch stone of the settled position of law. There appears no such infirmity therein. Now coming to the schedule ‘B’ property on the face of registered sale deed standing in favour of the defendant no.2 which has been marked in the case as Ext.C which is proceeded with the permission of the competent authority, the note of possession being recorded in the name of Lachhaman Goud and next the plaintiffs’ claim to have suddenly gone to possess after Lachhaman Goud left it. The finding recorded by the lower appellate court is found to be without any legal flaw more particularly when the doctrine of acquisition of title by adverse possession has no applicability to the facts and circumstances of the case in view of the settled position of law flowing from the ratio of the decisions of the Apex Court in case of Amarendra Pratap Singh vrs. Tej Bahadur Prajapati, AIR 2004 SC 3782 and the decisions subsequent thereto. In view of aforesaid discussion and reasons the substantial question of law stands answered against the case of the appellant and resultantly, this Court finds the appeal to be devoid of merit. The answer to the substantial question when thus being returned against the plaintiff, there arises no further need to address the technical point raised in course of submission by the learned counsel for the respondent no.2. 19. The appeal is accordingly dismissed. There shall however be no order as to cost in the facts and circumstances of the case.