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2018 DIGILAW 164 (ORI)

Ganga Mallik v. Dada Mallik

2018-02-07

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J This appeal is by the plaintiff. The suit was for declaration of title and permanent injunction. 2. Case of the plaintiff was that his father Sagada Mallik reclaimed the suit land. He was in possession of the suit land for the last 50 years. After death of his father, the plaintiff is in possession of the suit land. ROR was issued in his favour. The defendants have no right, title and interest over the suit land. They are not in possession over the same. They mutated their names in the mutation case in the year 1984. The defendants threatened to dispossess him from the suit land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendants filed a joint written statement denying the assertions made in the plaint. According to them, they are the nephews of the plaintiff. The father of the defendants and the father of the plaintiff were in possession of the suit land. The father of the defendants passed away at an early age. They were under the care and custody of the plaintiff, as a result of which the suit lands were recorded in the name of the plaintiff during settlement operation. The plaintiff admitted the right of the defendants before the Tahasildar. They filed mutation case before the Tahasildar to mutate their names. The Tahasildar after due enquiry found that the suit land belongs to the share of the defendants. Accordingly, the suit land was mutated in their names. The land was mutated with the consent and knowledge of the plaintiff. Thus they are in exclusive possession over the suit land. 4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, both oral and documentary to substantiate their case. Learned trial court came to hold that the defendants are the grandsons of Drabu Mallik. Plaintiff is the son of Sagada Mallik. Sagada and Drabu are brothers being sons of Duguni Mallik. Defendants are the nephews of the plaintiff. In Mutation Case No.1225 of 1982, the Tahasildar enquired into the matter. The plaintiff admitted the right of the defendants of the suit land. Thereafter, the land was mutated in the name of the defendants. The order is binding on the plaintiff. The defendants being the nephews of the plaintiff have share in the family property. In Mutation Case No.1225 of 1982, the Tahasildar enquired into the matter. The plaintiff admitted the right of the defendants of the suit land. Thereafter, the land was mutated in the name of the defendants. The order is binding on the plaintiff. The defendants being the nephews of the plaintiff have share in the family property. They are in possession of the suit property. The plaintiff is not the absolute owner of the property. Held so, it dismissed the suit. Unsuccessful plaintiff filed Title Appeal No.4 of 1988 before the learned District Judge, Phulbani, which was eventually dismissed. It is apt to state here that during pendency of the title appeal, the plaintiff died and his legal heirs have been substituted. 5. This appeal was admitted on the following substantial question of law; “Whether the order dated 26.4.1984 passed by the Tahasildar, Baliguda in Mutation Case No.1225 of 1982 confers no title upon the defendants and does not extinguish the title of the plaintiff ? 6. Heard Mr. H.K. Behera, learned counsel on behalf of Mr. S.D. Das, learned Senior Advocate for the appellant and Mr. Bikram Keshari Senapati on behalf of Mr. Bipin Bihari Rath, learned Senior Advocate for the respondents. 7. Mr. Behera, learned counsel for the appellant submits that the suit land exclusively belongs to the plaintiff. Father of the plaintiff reclaimed the suit land. He was in possession of the same for the last fifty years. After death of his father, the plaintiff is in possession of the suit land. Defendants have no semblance of right, title and interest over the same. The Tahasildar passed an order in Mutation Case No.1225 of 1982 in favour of the defendants. Mutation ROR neither creates title nor extinguishes title. 8. Mr. Senapati, learned counsel for the respondents submits that the defendants are the nephews of the plaintiff. Their father and the father of the plaintiff were in joint possession and enjoyment of the suit land. The suit land has been wrongly recorded in the name of the plaintiff during settlement operation. The plaintiff admitted the rights of the defendants before the Tahasildar. The Tahasildar, after causing enquiry, found that the suit land belongs to the defendants and accordingly, mutated the same in their favour. The mutation was made with the consent of the plaintiff. The defendants are in exclusive possession of the suit land. The plaintiff admitted the rights of the defendants before the Tahasildar. The Tahasildar, after causing enquiry, found that the suit land belongs to the defendants and accordingly, mutated the same in their favour. The mutation was made with the consent of the plaintiff. The defendants are in exclusive possession of the suit land. The plaintiff has no right, title and interest over the same. Both the courts below concurrently held that the plaintiff failed to substantiate his plea that he is the sole owner of the suit land. Defendants have right, title and interest over the same. There is no perversity in the said finding. 9. The apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur and others, AIR 1996 SC 2823 held that mutation of a property in the revenue record does not create or extinguish title. It only enables the person in whose favour mutation is ordered to pay the land revenue. The courts below fell into patent error in holding, inter alia, that the order passed in mutation case is binding on the plaintiff. 10. Both the courts held that Sagada and Drabu are the sons of Duguni Mallik. Plaintiff is the son of Sagada. Defendants are the grandsons of Duguni. The next question crops up as to whether the suit schedule property can be partitioned between the plaintiff and the defendants ? 11. The apex Court in the case of Firm Srinivas Ram Kumar vs. Mahabir Prasad, AIR 1951 SC 177 held thus: “xxx xxx xxx The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. xxx xxx xxx” 12. The plaintiff has half share over the suit property. All the defendants have half share over the same. Instead of driving the parties to another suit for partition, to give quietus to the issue, it would be just and proper to pass a preliminary decree for partition and separate possession of half interest in the plaintiff. The same will not cause any prejudice to the defendants. The decree passed by the court below is modified as follows: The entire suit schedule land is to be divided half each between the plaintiff and the defendants. Accordingly, preliminary decree for partition is made between the plaintiff and the defendants. Learned trial court shall appoint a commissioner to effect partition by metes and bounds of the suit land. 13. In the result, the appeal succeeds and is allowed to the extent indicated above. The plaintiff’s suit is decreed in part. No costs.