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2018 DIGILAW 273 (ORI)

Amareswar Malla v. State of Orissa

2018-03-19

A.K.RATH

body2018
JUDGMENT : A.K.RATH, J. This is a plaintiff’s appeal against the affirming judgment. 2. The case of the plaintiff is that the suit schedule property originally belonged to one Padma Charan Sahu. He executed a lease deed in favour of Brahamananda Sahu on 5.10.1944 and delivered possession. While the matter stood thus, Brahamananda Sahu alienated the schedule-B land to the plaintiff by means of a registered sale deed dated 7.8.1963 and delivered possession. He is in possession of the suit land and used to pay rent to the Tahasildar, Nimapara, defendant no.2. When defendant no.2 with the help of defendant no.3 threatened to dispossess him, he instituted the suit for declaration of title, confirmation of possession, recovery of possession in the event the plaintiff is dispossessed during pendency of the suit and permanent injunction. 3. The Collector, Puri, defendant no.1 filed a written statement denying the assertions made in the plaint. The case of defendant no.1 is that the plaintiff has no right, title and interest over the suit land. Brahamananda Sahu was not the owner of the suit land. The alleged lease deed is a fabricated one. The tenants’ ledger of the year 1953-54 to 1963-64 does not reveal that Brahamananda Sahu was a tenant. No rent was received from him. The suit land is not identifiable. The village where the suit land falls along with other five villages have been included in the master plan of Konarak N.A.C.. Notification has been made to that effect. 4. Defendant no.3 filed a written statement pleading, inter alia, that the suit land was recorded under Anabadi Khata of the State Government. He approached the Tahasildar, Nimapara, defendant no.2 to take a piece of land out of the same for the purpose of agriculture. Defendant no.2 promised to allot a portion of the land after taking over possession from the plaintiff. The defendant no.2 directed him to assist the R.I. in taking over possession of that land. The R.I. measured the land and directed him to remove the trees standing over the same. At that time the plaintiff claimed ownership over the suit land. Defendant no.2 was set ex parte. 5. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their cases. The R.I. measured the land and directed him to remove the trees standing over the same. At that time the plaintiff claimed ownership over the suit land. Defendant no.2 was set ex parte. 5. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court held that Chowdhury Jagannath Sahu and others were the intermediary in respect of the suit land. The suit land was recorded under Anabadi khata no.298 in the year 1928 settlement. Chowdhury Jagannath Sahu and Padma Charan Sahu were the co-sharers. Padma Charan Sahu executed an unregistered lease deed in favour of Brahamananda Sahu in respect of Ac.3.50 decs. of land including the suit plot and other plots, Ext.1. The date mentioned at the last portion of Ext.1 raises suspicion in the mind. The ex-landlord used to receive rent and grant receipts. The State had not produced tenants’ ledger in respect of the suit property. Brahamananda Sahu had acquired occupancy right over the suit land. He sold away Ac.0.32 decs. from the north out of the said property to the plaintiff by means of a registered sale deed dated 2.8.1963, Ext.5. The plaintiff has right, title, interest and possession over Ac.0.32 decs. of land, but then the suit land is not identifiable. Held so, it dismissed the suit. The plaintiff appealed before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Subordinate Judge, Puri and renumbered as Title Appeal No.2/117 of 1988/1984. The appeal was eventually dismissed. 6. The appeal was admitted on the following substantial question of law: “Whether the courts below erred in dismissing the suit in toto since they found that the appellant (plaintiff) has title and possession over A.0.32 decimals of land out of the suit property ?” 7. Heard Mr.B.K.Sahoo, learned Advocate for the appellant and Mr.R.P.Mohapatra, learned Additional Government Advocate for respondents 1 and 2. 8. Mr.Sahoo, learned Advocate for the appellant submitted that the suit property originally belonged to one Padma Charan Sahu. He executed an unregistered sale deed in favour of Brahamananda Sahu, vide Ext.1. To press his legal necessity, Brahamananda Sahu sold Ac.0.32 decs. of land to the plaintiff for a valid consideration and thereafter delivered possession. The plaintiff is in possession of the rest portion of the land. He executed an unregistered sale deed in favour of Brahamananda Sahu, vide Ext.1. To press his legal necessity, Brahamananda Sahu sold Ac.0.32 decs. of land to the plaintiff for a valid consideration and thereafter delivered possession. The plaintiff is in possession of the rest portion of the land. He has given the boundary in respect of the entire plot. The courts below came to a conclusion that the plaintiff has title over Ac.0.32 decs. of land. He further submitted that the plaintiff has furnished the khata number, plot number, area and mouze. The suit land is identifiable. The courts below committed a manifest illegality in dismissing the suit. He relied on the decisions in the case of Ganesh v. Sri Ram Lalaji Mahraj Birajman Mandir and others, AIR 1973 Allahabad 116, Nagar Khan and others v. Gopi Ram Agarwal, AIR 1976 Patna 2, Dhruba Charan Sahu v. State of Orissa and others, Vol.37 C.L.T.379 and Jhalku Singh and others v. Chandrika Singh and others, AIR 1961 Patna 350. 9. Per contra, Mr.Mohapatra, learned A.G.A. submitted that the alleged lease deed, Ext.1, is an unregistered lease deed. Thus, no title passed to Brhamananda Sahu-the lessee. Any alienation made by Brahamananda Sahu in favour of the plaintiff does not confer title. He further submitted that valuation of the property is more than Rs.100/-. The same required compulsory registration. The suit land is not identifiable. 10. The lease deed, vide Ext.1, said to have been executed by Padma Charan Sahu in favour of Brahamananda Sahu, is an unregistered deed. The date of execution of the lease deed has been tampered with. The date 4/5/10/1994 has been written in a different ink and different handwriting. The learned trial court has rightly come to a conclusion that the said deed appears to be very suspicious. 11. In Ram Nath Mandal and others v. Jojan Mandal and others, AIR 1964 Pat-1, the Full Bench of Patna held that under Section 117 of the T.P.Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. In that case, the claim of creation of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint. 12. The valuation of the property is more than Rs.100/-. The same required compulsory registration under Section 17 of the Registration Act. Thus, no title passed to Brahamananda Sahu. When the alleged deed was executed by Brahamananda Sahu, he was 13 years old. He was not represented by the father guardian. Brahamananda Sahu has not acquired any title. The findings of the courts below that Brahamananda Sahu was an occupancy raiyat is beyond pleadings. Any subsequent alienation by Brahamananda Sahu in favour of the plaintiff will not confer title. Learned trial court having come to a conclusion that the unregistered lease deed, Ext.1 appears to be suspicious, committed a serious illegality in holding that Brahamananda Sahu was an occupancy raiyat. Thus, the findings of the courts below that the plaintiff has title over the suit property, is perverse. 13. Further the suit land is a big patch of land, out of which, the plaintiff claims Ac.0.32 decs. No boundary has been given. Order 7 Rule 3 of the C.P.C. postulates that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identity it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 14. The judgments cited by the learned Advocate for the appellant are distinguishable on facts. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 14. The judgments cited by the learned Advocate for the appellant are distinguishable on facts. In Ganesh (supra), it was held that when the description of the property is sufficient to identify it, the Court in exercise of its powers under Sections 151 and 152 can correct any error or misdescription in the decree pertaining to the boundaries of the suit property. But the same is not the case here. 15. In Nagar Khan (supra), it was held that it is the duty of the Court to pass only such decrees which can be executed under the machinery provided by Order 21 with all precision and without any confusion or embarrassment either to the executing Court or to any other person. However, on this ground a suit cannot be dismissed, nor a plaint rejected and in such cases the Court may call upon the plaintiffs to furnish more particulars even to the extent of allowing the amendment of the plaint. 16. In Dhruba Charan Sahu (supra), this Court had an occasion to deal with the provisions of Orissa Offices of Village Police (Abolition) Act, 1964. The facts of this case are completely different. 17. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.