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2018 DIGILAW 239 (ORI)

Mrutyunjaya Majhi v. Gopinath Majhi

2018-03-12

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. Defendant is the appellant against a reversing judgment. 2. The plaintiff-respondent instituted a suit for declaration of right, title and interest over the suit land, confirmation of possession and permanent injunction. The case of the plaintiff was that the suit land originally belonged to one Baishnab Majhi. Baishnab along with his daughter, Kunti sold the suit land to him for a consideration of Rs.15,000/-by means of a registered sale deed dated 04.09.1991 and delivered possession. In December 1991, the defendant initiated a proceeding under Sec.144 Cr.P.C. and forcibly removed the paddy crops. The defendant made a claim over the suit land on the basis of a false and fictitious sale deed alleged to have been executed by Baishnab. Baishnab had never executed any sale deed in favour of the defendant. The defendant had no title or possession over the suit land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. According to defendant, the original owner, Baishnab Majhi, sold the suit land to him for a consideration of Rs.12,000/-by means of a registered sale deed dated 18.04.1991 and delivered possession. Since the date of purchase, he is in possession of the suit land as owner thereof. The plaintiff has no semblance of title and possession over the land. 4. On the, inter se, pleadings of the parties, learned trial court struck five issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court dismissed the suit with a finding that the sale deed dated 18.04.1991 executed by Baishnab in favour of the defendant is valid and the defendant is in possession over the suit land. The sale deed dated 04.09.1991 executed by Baishnab in favour of the plaintiff does not convey any title. Feeling aggrieved, the plaintiff filed an appeal before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Additional District Judge, Bolangir and renumbered as T.A. No. 47/15 of 1994-96. Learned appellate court came to hold that the defendant has failed to discharge the heavy burden of proving due execution of Ext.A by Baishnab. The alleged sale in favour of defendant of the suit land is not valid. Defendant does not derive any title thereunder. Held so, it allowed the appeal. Learned appellate court came to hold that the defendant has failed to discharge the heavy burden of proving due execution of Ext.A by Baishnab. The alleged sale in favour of defendant of the suit land is not valid. Defendant does not derive any title thereunder. Held so, it allowed the appeal. 5. The appeal was admitted on the following substantial questions of law:- “1. Whether the learned lower appellate court committed gross error on the question of law with regard to the validity or otherwise of the execution of the sale deed in favour of the defendant, i.e. sale deed (Ext.A) ? 2. Whether the learned lower appellate court committed any error in not considering the evidence on behalf of the defendant so far as the same related to execution of the sale deed (Ext.A) ? 3. Whether the learned lower appellate court committed gross error in not giving finding that since admittedly both sale deeds executed by Baishnab, the earlier sale deed in favour of the defendant should have been accepted and plaintiff’s suit should have been dismissed ?” 6. Heard Mr. Debasis Pattnaik, learned advocate on behalf of Mr. S.C. Mohanty, learned advocate for the appellant and Mr. Buddhiram Das, learned advocate on behalf of Mr.A.K. Mohapatra, learned advocate for the respondent. 7. Mr. Pattnaik, learned advocate for the appellant submits that Baishnab Majhi was the original owner of the suit land. To press his legal necessity, he sold the suit land to the defendant for a consideration of Rs.12,000/-by means of a registered sale deed dated 18.04.1991 vide Ext.A and delivered possession. The defendant was all along in possession of the suit land. By the time Baishnab executed the sale deed in favour of the plaintiff, he had no title over the property. Thus the plaintiff has no title over the property. He further submits that the defendant had proved due execution of the sale deed executed by Baishnab. Ext.A was dictated on the instruction of Baishnab. The contents of the sale deed were read over and explained to Baishnab. After understanding the same, he put his L.T.I. on the deed. Baishnab had also sold some of the properties in favour of other persons. Ext.A was dictated on the instruction of Baishnab. The contents of the sale deed were read over and explained to Baishnab. After understanding the same, he put his L.T.I. on the deed. Baishnab had also sold some of the properties in favour of other persons. Those sale deeds had been marked as Exts.B and C. In Exts.B and C, Baishnab had put his L.T.I. Learned trial court, on a threadbare analysis of the evidence as well as pleadings decreed the suit. But then, learned appellate court, on untenable and unsupportable ground, reversed the same. 8. Per contra, Mr. Das, learned advocate for the respondent submits that Baishnab had not executed the sale deed in favour of the defendant. To press his legal necessity, Baishnab sold the suit land to the plaintiff for a consideration of Rs.15,000/-by means of a registered sale deed dated 04.09.1991, vide Ext.1, and delivered possession thereof. 9. Baishnab was examined as P.W.5. In his deposition, he stated that he had executed the sale deed in favour of the plaintiff for a consideration of Rs.15,000/-on 04.09.1991, vide Ext.1 and thereafter delivered possession. He had not executed any sale deed in favour of defendant vide Ext.A. The defendant had not taken any steps to get the L.T.I. of Baishnab on Ext.A. examined by an expert. The recital of the sale deed makes it clear that Baishnab had received consideration and delivered the possession of the land to the plaintiff. 10. Learned appellate court, on a scanning of the evidence on record and pleadings, came to hold that though P.W.5 was subjected to extensive cross-examination, but nothing had been brought out to discredit his evidence. There is no reason to doubt on the veracity of the statement of P.W.5. With regard to Exts. B and C, Baishnab had denied execution of the same. The witnesses examined on behalf of defendant admit that P.W.5 had sold some land to Gopal Ghivela vide Ext.2 in the year 1967. There is no reason as to why did he put his L.T.I. and not put signature on Exts.B and C, which was executed in the year 1970. It further held that defendant had not taken any steps to get L.T.I. to Baishnab on Ext.A examined by an expert. There is no reason as to why did he put his L.T.I. and not put signature on Exts.B and C, which was executed in the year 1970. It further held that defendant had not taken any steps to get L.T.I. to Baishnab on Ext.A examined by an expert. The evidence of D.Ws.1, 3 and 6 with regard to execution of Ext.A by Baishnab, P.W.5 and the categorical denial by him the execution and validity of Ext.A is shrounded in suspicion. It further held that the defendant has failed to discharge the heavy burden of proving due execution of Ext.A by Baishnab. He cannot derive any title thereunder. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.