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2018 DIGILAW 374 (ORI)

Pravakar Padhi v. Rama Chandi Thakurani

2018-04-09

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. Plaintiff is the appellant against a confirming judgment in a suit for permanent injunction. 2. Case of the plaintiff was that the suit land was originally part of Survey No.62/1, Patta No.237 of Village-Sheragada. It was a mango tope. The land was settled with one Binayak Sahu @ Benia Sahu son of Padmanavha Sahu @ Panda Sahu of Village-Sheragada. Adikanda Padhi, father of the plaintiff instituted Money Suit No.93 of 1965 in the court of the learned Munsif, Aska for realisation of money against Binayak Sahu. The suit was decreed. In E.P Case No.69 of 1968, his father purchased Ac.0.10 dec. of land out of Ac.2.57 cents from eastern portion of the suit land in the public auction dated 4.12.1969. The sale certificate was issued in favour of his father on 5.2.1970 vide Ext.4. Delivery of possession was made to his father. The rest of the land in Survey No.62/1 lying to the east of the plot was vacant. He purchased Ac.0.02 cents of land from west and Ac.0.03 cents of land from the middle of Survey No.62/1 in a sale by public auction in Execution Case No.19/77 on 17.3.1979. He was in possession of the same. While the matter stood thus, the settlement operation in the area, where the suit land falls, started in the year 1986. Item No.1 was assigned to Plot No.3272 under Khata No.1825. In the draft khatian, the names of defendants have been recorded in the remarks column. He appealed before the Settlement Officer. The appeal was disposed of on 20.4.1991 with an observation that the plaintiff shall take necessary steps after publication of ROR. Since defendants created disturbance, he instituted the suit seeking the reliefs mentioned supra. 3. Defendants entered contest and filed a written statement denying the assertions made in the plaint. Case of the defendants was that originally the suit land was Darmila Inam land. The same belonged to Udaya Pratap Singh, erstwhile Zamindar of Sheragada. Zamindar had given the Inam land to Balaram Pradhan son of Damodar Pradhan, Kalu Sahu and Bhima Sahu, sons of Naran Sahu, Bharat Sahu and Khalli Sahu sons of Baya Sahu and Benia Sahu son of Pandu Sahu. The aforesaid persons gifted the suit land to the deity Ramachandi Thakurani bije Sheragada vide Ext.A. The deity is in possession of the suit land for more than 30 years. The aforesaid persons gifted the suit land to the deity Ramachandi Thakurani bije Sheragada vide Ext.A. The deity is in possession of the suit land for more than 30 years. The plaintiff has no semblance of right, title and interest over the same. In the settlement operation, the land was recorded in the Government khata. The appeal filed by the plaintiff was disposed of with a finding that the land belongs to the deity. The said order had attained finality. Boundaries given by the plaintiff show that he does not have any land adjoining to Plot No.3272. The plot number mentioned in the sale certificate is a part of Survey No.62/1. The sale certificate is a fabricated one. The judgment-debtor of the plaintiff’s father Binayak Sahu had no right, title and interest or possession over Survey No.62/1 in Patta No.237. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence. Learned trial court came to hold that from the certified copy of the ROR and the order passed in settlement appeal vide Ext. B and C, it is evident that the suit land is Darmila Inam land and it was granted to the persons mentioned supra. There was no evidence on record that Benia Sahu son of Panda Sahu is one and the same as Binayak Sahu @ Benia Sahu son of Padmanabha Sahu @ Panda Sahu of Sheragada. In the absence of any evidence as to the identity of the vendor of the plaintiff’s father in auction sale is one and the same, it could not be held that these two persons are one and the same. Thus the vendor of the plaintiff’s father and the plaintiff has got no right, title and interest over the suit land. Learned counsel for the plaintiff conceded that no possession was delivered to the plaintiff in respect of Item No.2 property. No delivery of possession was made in respect of the properties. The plaintiff was not in possession of the suit land. It held that the fraud was played on court. The persons in whose name the land was recorded were not parties in the execution case. Thus the purchase of the plaintiff’s father in the auction sale is ineffective and does not confer any title. The inamdars were not parties in the execution case. It held that the fraud was played on court. The persons in whose name the land was recorded were not parties in the execution case. Thus the purchase of the plaintiff’s father in the auction sale is ineffective and does not confer any title. The inamdars were not parties in the execution case. Thus the sale in auction by the court is not binding on the defendants. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned Civil Judge (Senior Division), Aska in Title Appeal No.14 of 1994, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.A, C and D of the appeal memo. The same are - “A. Whether in view of Ext.1 and 4 the sale certificates and Ext.B, the Sabik ROR which shows that the Sabik suit plot stands in the name of Benia Sahoo, the learned courts below erred in law in holding that the plaintiff has no right, title, interest or possession over the suit land ? C. Whether in view of specific evidence led by P.W.1 that Binayak Sahoo and Benia Sahoo were the one and the same person, the impugned finding of the learned courts below that the plaintiff failed to prove Binayak and Benia Sahoo were one and same person is perverse ? D. Whether the impugned finding of the learned courts below is perverse for non consideration of oral and documentary evidence led by the plaintiff rather contrary to the evidence on record ?” 6. Heard Mrs. Jyotsnamayee Sahoo on behalf of Mr. Manoj Kumar Mishra, learned Senior Advocate for the appellant. None appeared for the respondents. 7. Mrs. Sahoo, learned counsel for the appellant submitted that the suit land was put to auction in Execution Case No.19/77. The father of the plaintiff purchased the suit land in the auction sale. The sale certificate was issued in his favour. Certified copy of the order in E.P No.93 of 1988 vide Ext.2, sale certificate vide Ext.3 and confirmation of sale vide Ext.4 show that the sabik plot stands in the name of Benia Sahu. Plaintiff (p.w.1) in his evidence has stated that Binayak Sahu and Benia Sahu were one and the same person. There is no reason to disbelieve the same. Plaintiff (p.w.1) in his evidence has stated that Binayak Sahu and Benia Sahu were one and the same person. There is no reason to disbelieve the same. Since the suit land was sold by a court auction, the courts below committed a patent illegality in dismissing the suit for permanent injunction. 8. On an anatomy of the pleadings and the evidence on record, learned trial court came to hold that Benia Sahu son of Panda Sahu is not one and the same as Binayak Sahu @ Benia Sahu son of Padmanabha Sahu @ Panda Sahu of Sheragada. In the absence of any evidence as to the identity of the vendor of the plaintiff’s father in auction sale is one and the same, it is difficult to hold that these two persons are one and the same. Ext.B shows that the suit land is Darmila Inam land. The same was granted by Radha Krushna Pradhan, Goura Chandra Pradhan, Ranka Sahu and Bhima Sahu. The fraud was played on court. These are essentially finding of facts, which are affirmed by the learned appellate court. There is no perversity in the same. Fraud and justice cannot dwell together. 9. The immortal words of Chief Justice Edward Coke of England on fraud are echoed in S.P. Chengalvaraya Naidu (dead) by L.R.s v. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853 . In paragraph-1 of the report, the apex Court held thus: “Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree -by the first court or by the highest court -has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” 10. The courts below concurrently held that the persons in whose name the land was recorded were not parties in the execution case. Fraud was played on court. The courts below have rightly held that the plaintiff has no title and possession over the suit land. Thus the suit for permanent injunction simplictor is not maintainable. The substantial questions of law are answered accordingly. 11. Fraud was played on court. The courts below have rightly held that the plaintiff has no title and possession over the suit land. Thus the suit for permanent injunction simplictor is not maintainable. The substantial questions of law are answered accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.