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2018 DIGILAW 240 (ORI)

Maheswar Bagha v. Baikuntha Bagha

2018-03-12

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This is defendants’ appeal against a confirming judgment. 2. The plaintiff-respondent instituted the suit for permanent injunction. The case of the plaintiff was that Biranchi, Judhisthir and Agasti were three brothers. They were separated in mess and property. Though Judhisthir and Agasti were in separate mess and property, but in the settlement ROR the property had been recorded jointly in the name of two brothers. Plaintiff is the son of Agasti and defendants are sons of Judhisthir. Ac.7.48 dec. of land was recorded jointly. The father of the plaintiff was in possession of Ac.3.70 dec. of land. The land was mutated in the name of the plaintiff. The defendants had no semblance of title over the same. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendants entered contest and filed written statement. According to the defendants, father of the plaintiff had got Ac.3.70 dec. out of Ac.7.48 dec. After death of his father, the plaintiff sold an area of Ac.0.05 dec. along with other lands by means of an unregistered sale deed for a consideration of Rs.1000/-to the defendant no.2 and delivered possession. They had constructed their dwelling house. Alternatively they pleaded that they had perfected title by way of adverse possession. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence. Learned trial court decreed the suit holding, inter alia, that the plain paper unregistered sale deed vide Ext.C is inadmissible in evidence and no title was passed to the defendants. The evidence adduced on behalf of the plaintiff in respect of possession is not clear and convincing. The defendant no.1 is in occupation of the suit land. The possession of the defendants is permissive. They had not acquired title by way of adverse possession. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Boudh in T.A. No.9 of 1986, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 to 4 of the appeal memo. They had not acquired title by way of adverse possession. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Boudh in T.A. No.9 of 1986, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 to 4 of the appeal memo. The same are: “(1) For that the learned courts below were factually incorrect to hold that Ext.C does not connect the suit land since Ext.C described the lands sold by local name Palhaghari and Bandhatala Danga and the plaint also described the suit property by the said local name. (2) For that since Ext.C being inadmissible in evidence to prove the sale due to want of registration still the same is admissible in evidence to prove the collateral purpose i.e., the nature and character of possession of the defendants over the suit property. (3) For that since the plaintiff’s suit is for permanent injunction or in the alternative for recovery of possession on the basis that in partition the specific item of property was allotted to his father and since decree for recovery of possession has been granted in favour of the plaintiff the learned lower appellate court erred in law in holding that the defendants’ possession even though for last 14 years prior to 1983 they cannot acquire title by adverse possession being co-sharers. (4) For that since Ext.C is a sale deed for Rs.1000.00 conveying the suit property in favour of defendant no.2 and delivering possession, the learned lower appellate court erred in law in holding the said deed to be an agreement for sale and further erred in law in not holding that even though under law sale being invalid from inception possession is adverse.” 6. Heard Mr. N.P. Patnaik, learned counsel along with Mr. Surajit Mahanta, learned counsel for the appellants and Mr. P.V. Balakrishna Rao, learned counsel along with Mr. Ranjan Kumar Rout, learned counsel for the respondent. 7. Mr. Patnaik, learned counsel for the appellants, submits that the plaintiff had sold an area of Ac.0.05 dec. along with other lands to the defendants by means of an unregistered sale deed for a consideration of Rs.1000/-. The defendants were in possession of the land. They had constructed their dwelling house and resided there with their families. 7. Mr. Patnaik, learned counsel for the appellants, submits that the plaintiff had sold an area of Ac.0.05 dec. along with other lands to the defendants by means of an unregistered sale deed for a consideration of Rs.1000/-. The defendants were in possession of the land. They had constructed their dwelling house and resided there with their families. The unregistered sale deed can be used for collateral purpose. There is clinching evidence on record that the defendants had perfected title by way of adverse possession. The courts below committed a manifest illegality in not declaring title of the defendants. 8. Per contra, Mr. Balakrishna Rao, learned counsel for the respondent, submits that the plaintiff had never sold any land to the defendants. The unregistered sale deed is inadmissible in evidence. Both the courts negatived the plea of adverse possession. There is no perversity or illegality in the finding of the courts below. 9. The case of the plaintiff is that Biranchi was separated from his two brothers. He was in possession of his share and accordingly ROR was issued in his name. Out of Ac.7.48 dec. of land, the father of the plaintiff was in possession of Ac.3.70 dec. of land. The plaintiff filed Mutation Case No.160/82 for mutation of the land. The same was allowed and accordingly patta was issued. There is no pleading or evidence on record that the suit property was partitioned by metes and bounds between the parties. Every co-sharer has interest in every inch of land. In view of the same, the suit for permanent injunction is not maintainable. 10. Both the courts had rightly come to a conclusion that the suit property was not sold to the defendants and negatived the plea of adverse possession. Furthermore, the defendants’ claim to the property by means of an unregistered sale deed and adverse possession are mutually inconsistent. The suit property being not partitioned by metes and bounds, the simple suit is not maintainable. The substantial questions of law are answered accordingly. 11. In the wake of aforesaid, the impugned judgments are set aside. The appeal is allowed. Consequently the suit is dismissed. No costs.