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2018 DIGILAW 452 (ORI)

Gopal Krushna Panda v. Harimohan Panigrahi

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Defendant no.1 is the appellant against a confirming judgment. 2. Plaintiff-respondent no.1 instituted the suit for declaration of right, title and interest, permanent injunction and in the alternative for recovery of possession. The case of the plaintiff was that he purchased the suit property on 4.12.1965 from defendant no.2 by means of a registered sale deed for a valid consideration. Possession was duly delivered to him. He used to pay cist to the Government. He filed Mutation Case No.1085/87 before the Tahasildar for mutation of the land. The petition was rejected on the ground that the land had already been mutated in favour of the defendant no.1. Against the said order, he filed appeal before the S.D.O., Berhampur. The appellate authority remanded the matter to the Tahasildar for reconsideration. While the matter stood thus, the defendant no.1 made an attempt to alienate the suit land and created disturbances in his possession. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant no.1 filed written statement denying the assertions made in the plaint. It was pleaded that defendant no.2 had not alienated the suit land to the plaintiff nor delivered possession. Plaintiff had no title or possession over the suit land. Plaintiff managed to obtain a fake sale deed. The specific case of the defendant no.1 was that defendant no.2 purchased a piece of land including the suit land from one D. Dandasi by means of a registered sale deed dated 5.12.64. Thereafter he alienated the land to one Surendranath Mishra on 8.4.72 by means of a registered sale deed no.1168/72. Surendranath Mishra sold the suit land to J. Jagyanarayana Prusti by means of a registered sale deed dated 19.4.76. Thereafter Jagyanarayana Prusti sold the land to him by means of a registered sale deed dated 6.7.79. Possession was duly delivered to him. He is in possession of the suit land. The Mutation Officer had rightly rejected the claim of the plaintiff. Defendant no.2 was set exparte. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their cases. On an anatomy of the pleadings and evidence on record, learned trial court came to hold that the sale of the suit land by defendant no.2 to the plaintiff is valid. Plaintiff acquired title over the suit land. Parties led evidence, oral and documentary, to substantiate their cases. On an anatomy of the pleadings and evidence on record, learned trial court came to hold that the sale of the suit land by defendant no.2 to the plaintiff is valid. Plaintiff acquired title over the suit land. Defendant no.2 had no subsisting title over the suit land, when he executed the sale deed in favour of Surendranath Mishra in the year 1972. Surendranath Mishra had not acquired title over the suit land. The subsequent sale transactions of the suit land are invalid. Defendant no.1 had no title over the suit land. Held so, it decreed the suit. Felt aggrieved, the defendant no.1 filed T.A. No.28 of 1996 before the learned District Judge, Ganjam-Gajapati, Berhampur, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.4 and 5 of the appeal memo. The same are : “4. Whether the learned courts below erred in law in holding that provisions of sections 32 and 33 of the Registration Act would not apply to invalidate the sale in favour of plaintiff/respondent no.1 or stop conveyance of title in favour of him even though the sale deed vide Ext.1 was presented for registration by P.W.2 ? 5. Whether the learned courts below erred in law to hold that provisions of Art.64 of the Limitation Act would apply though the plaintiff came in the suit long after the publication of final R.O.R. in favour of the present appellant ?” 6. Mr. D. Mohapatra, learned Advocate for the appellant, submitted that the suit schedule property is part of the estate given in Inam (Agraharim) in mouza-Baidyanathpur in favour of one A.P. Patra. A.P. Patra sold the estate in favour of late Swornameyee Panigrahi, wife of late Lingaraj Panigrahi. One Dandasi was the tenant of an area Ac.0.54 dec. Consequent upon vesting of the estate, the land was recorded in his name. He became the owner of four plots, i.e., Ac.0.021 cent, Ac.0.15 cent, Ac.0.13 cent and Ac.0.05 cent, total Ac.0.54 dec. No survey number was assigned to the plots. The lands were identified with reference to the boundary only. Dandasi sold the total property in favour of Laxmi Charan Sahoo by means of a registered sale deed no.7113 of 1964, Ext.D. Laxmi Charan also sold an area Ac.0.02 dec. and 50 kadi out of Ac.0.13 dec. No survey number was assigned to the plots. The lands were identified with reference to the boundary only. Dandasi sold the total property in favour of Laxmi Charan Sahoo by means of a registered sale deed no.7113 of 1964, Ext.D. Laxmi Charan also sold an area Ac.0.02 dec. and 50 kadi out of Ac.0.13 dec. in favour of Surendranath Mishra by means of a registered sale deed no.1168 of 1972, Ext.C. Surendranath sold the land to J. Jagyanarayana Prusti by means of a registered sale deed no.1025/1976, Ext.B. Thereafter J. Jagyanarayana Prusti sold the land to the defendant no.1 by means of a registered sale deed no.324 of 1979, Ext.A, and delivered possession of the property. Laxmi Charan sold Ac.0.02 dec. and 75 kadi in favour of Harimohan Panigrahi, plaintiff, by means of a registered sale deed no.1215 of 1965. The recital of said deed reveals that Dandasi purchased the land on Fasali, i.e., 1965 in Gregorian calendar. The deed does not reveal the total area of the property purchased by the original owner-Dandasi out of which he sold in favour of Laxmi Charan during 1965. Fasali is the urdu word which means year begins from July of the year ends with June of the next year. It is converted to Gregorian year by adding 590. In the present dispute 1375 Fasali would mean 1375+590=1965. The discrepancies occasioned due to non-appreciation of the boundary, which are different in respect of the property of the plaintiff with that of the defendant in Ext.1 and Ext.A. It was occasioned due to non-assignment of survey number/plot no. The settlement operation started during the year 1976. In the settlement, survey number was assigned for the first time. The finding of the learned lower appellate court that the boundaries of both the plots are same is perverse. The defendant is in possession of the schedule property. The plaintiff purchased a different plot, but claimed plot of the defendant, which is neither correct nor borne out of the deeds in Ext.1. The finding of the courts below is perverse. 7. Per contra, Mr. D.R. Mohapatra, learned Advocate on behalf of Mr. S.B. Jena, learned Advocate for the respondent no.1, submitted that both the courts below concurrently held that the plaintiff has title over the suit land. There is no perversity in the said finding. 8. The finding of the courts below is perverse. 7. Per contra, Mr. D.R. Mohapatra, learned Advocate on behalf of Mr. S.B. Jena, learned Advocate for the respondent no.1, submitted that both the courts below concurrently held that the plaintiff has title over the suit land. There is no perversity in the said finding. 8. On an anatomy of the pleadings and evidence on record, both the courts concurrently held that the boundary and description of the suit land given in the plaint tally with the description and boundary given in Ext.A. There is no dispute about the boundaries. In the written statement, it is stated that the suit land was originally the property of E. Dandasi. He sold the same to the defendant no.2. Thereafter, defendant no.2 sold the same to Surendranath Mishra. Surendranath Mishra sold the same to J. Jagyanarayana Prusti, whereafter J. Jagyanarayana sold the land to the plaintiff. The suit schedule land is the same, which was sold under Ext.1 and also later on under Exts.A, B, C, and D. The suit land belonged to defendant no.2. The document, Ext.A, and oral evidence of P.Ws.1 and 3 clearly shows that the land was sold to the plaintiff for a valid consideration. So title passed to the plaintiff in the year 1965. The sales under Exts.A, B, C and D are all subsequent to the purchase of the plaintiff. Neither the defendant no.2 nor the next purchaser had title over the suit land. The sale transaction would not convey any title either to Surendranath Mishra, Jagyanarayan Prusti or to the defendant no.1. The mutation ROR neither creates title nor extinguishes title. There is no perversity in the said finding. The substantial questions of law are answered accordingly. 9. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.