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2018 DIGILAW 525 (ORI)

Niranjan Panda v. Susila Devi

2018-05-09

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Defendant no.1 is the appellant against a reversing judgment. 2. The plaintiffs-respondents 1 to 3 instituted the suit for permanent injunction. The case of the plaintiffs is that Udayanath Routray, father of defendant no.2, sold the suit property to defendant no.3 by means of a registered sale deed in the year 1959 and delivered possession to him. Defendant no.3 constructed a house thereon after approval of the building plan by the Municipality and stayed there. He used to pay the land revenue and municipal taxes. Thereafter defendant no.3 alienated A0.170 dec. of land to plaintiff nos.1 and 2 and A0.100 dec. of land to plaintiff no.3 by means of two registered sale deeds in the year 1964 for valid consideration and delivered possession to them. They are paying tax regularly. The land has been recorded in their names in the current settlement operation. After due enquiry, the settlement authority had carved out two new plots for the purchasers. The suit properties had been given on rent to different tenants. The sons of plaintiff nos.1 and 3 are residing in the house over the suit land. 3. Defendant no.1 filed written statement-cum-counter claim. The case of defendant no.1 is that the suit land originally belonged to Udayanath Routray, father of defendant no.2. Udayanath Routray had not sold the land to defendant no.3. Defendant no.3 managed to execute a fictitious sale deed through an imposter. The specific case of defendant no.1 is that defendant no.2 succeeded the suit property after death of his father. The suit land was recorded in his name in the R.O.R. published in the year 1962. Defendant no.2 used to pay rent to ex-landlord Sri Sri Lingaraj Mahaprabhu up till 1974. The estate vested in the State. Thereafter he paid rent to the Tahasildar, Bhubaneswar. To press his legal necessity, he alienated the land in favour of defendant no.1 on 29.10.1980 by means of a registered sale deed and delivered possession. The sale deed in favour of defendant no.3 is fictitious. Neither signature nor L.T.I. of Udayanath Routray appeared in the Siha Register maintained in the office of Sub3 Registrar. The registered sale deed no.10589 of 1959 was the outcome of malpractice. Defendant no.3 was not in possession of the land at any point of time. The sale deed in favour of defendant no.3 is fictitious. Neither signature nor L.T.I. of Udayanath Routray appeared in the Siha Register maintained in the office of Sub3 Registrar. The registered sale deed no.10589 of 1959 was the outcome of malpractice. Defendant no.3 was not in possession of the land at any point of time. With this factual scenario, he prayed to declare the sale deed nos.10589 of 1959, 6353 of 1964 and 6354 of 1964 are void, defendant no.3 and plaintiffs have no title over the suit land and further declaration that the sale deed dated 29.10.1980 executed by defendant no.2 in favour of defended no.1 is valid. Defendant no.2 filed written statement supporting the stand of defendant no.1. 4. On the inter se pleadings of the parties, learned trial court framed ten issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court held that from the relevant pages of Siha Register, Ext.J and J/1, it is evident that neither the vendor of defendant no.3 had signed on the register, nor put his thumb impression. The sale deed had not been registered as per the rules framed under the Indian Registration Act. The plaintiffs have no title over the suit land. Defendant no.1 has right, title and interest over the suit land. Held so, it dismissed the suit. Felt aggrieved, the plaintiffs filed Title Appeal No.32 of 1988 before the learned Additional Sub-Judge, Bhubaneswar. Learned appellate court allowed the appeal holding, inter alia, that the plaintiffs have adduced no evidence in support of execution of Ext.1. The sale deed bears the registration No.10859. In the register, Ext.J, one Rukuna Dei put her thumb impression as against document no.10589 on 28.10.59 in presence of Registering Officer. Ext.J/1 is another page, in which signatures and L.T.Is of other persons were taken on the same day in respect of the document no.10590. The plaintiffs have failed to prove that their vendor has acquired title over the suit land. Thus, they cannot claim title. The plaintiffs are in possession of the suit land for more than the statutory period. 5. The Second Appeal was admitted on the following substantial questions of law:- “1. Whether the lower appellate court was justified in holding that the plaintiffs have been able to establish possession for more than the statutory period ; and 2. The plaintiffs are in possession of the suit land for more than the statutory period. 5. The Second Appeal was admitted on the following substantial questions of law:- “1. Whether the lower appellate court was justified in holding that the plaintiffs have been able to establish possession for more than the statutory period ; and 2. Whether without any relief being sought for by the plaintiffs on the ground that they have perfected title by adverse possession, was the lower appellate court justified in ranting that right to acquisition of title by prescription ?” 6. Heard Mr. L.K. Moharana, learned Advocate on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellant. None appeared for the respondents. 7. Mr. Moharana, learned Advocate for the appellant submitted that the courts below concurrently held that the plaintiffs had no title over the suit land. But then learned appellate court committed a manifest illegality in holding that the plaintiffs are in possession of the suit land for more than statutory period. The finding of the learned appellate court on that score is perverse. The court below found that father of defendant no.2 had not put his L.T.I. in the Shia Register, Ext.J. 8. The plaintiffs assert that Udayanath Routray, father of defendant no.2 executed a registered sale deed no.10589 dated 28.10.1959 in favour of Hatakishore Tripathy, defendant no.3. Thereafter defendant no.3 alienated the said land in their favour. The registered sale deed no.10589 dated 28.10.1959 is marked as Ext.1. On the top portion of the sale deed, Ext.1 it is stated that “1059 Khurda Deed No.10589 vol.105 pages 105 to 107 CU”. However, thumb impression of the register contained in Vol.44 S.R.O. Khurda of the year 1959, Ext.J has been called for. In the column meant for thumb impression of deed no.10589, one Rukmani Dei put her initial. As it appears, Vol. no.105 of the year 1959 has not been called for. The findings of the courts below that neither the vendor of the plaintiffs had signed on the register, nor put thumb impression is perverse. 9. In the result, the judgments are set aside. The appeal is allowed. The matter is remitted back to the learned trial court for de novo hearing. It is open to the parties to adduce further evidence. In order to avoid further delay, the parties shall appear before the learned court below on 20th June, 2018. 9. In the result, the judgments are set aside. The appeal is allowed. The matter is remitted back to the learned trial court for de novo hearing. It is open to the parties to adduce further evidence. In order to avoid further delay, the parties shall appear before the learned court below on 20th June, 2018. Learned trial court shall conclude the hearing of the suit by end of December, 2018.