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2018 DIGILAW 565 (ORI)

PRAHARAJ PALATASINGH v. ARJUNA FATESINGH

2018-05-16

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J - This is a plaintiff's appeal against the affirming judgment in a suit for permanent injunction. 2. Case of the plaintiff is that the suit property originally belonged to one Jagannath Rath. The plaintiff and defendant no.3 purchased the same from Jagannath Rath by means of a registered sale deed. They are in possession of the suit land. They used to grow paddy and seasonal vegetables over the same. The defendants have no semblance of right, title and interest over the same. They created disturbance in their possession. 3. Defendants 1 and 2 filed written statement denying the assertions made in the plaint. According to them, plaintiff and defendant no.3 had purchased sabik plot no.573 which corresponds to hal plot no.507. Sabik plot no.563 had been wrongly mentioned in the sale deed. Possession of the suit land had not been delivered to them. It was further pleaded that one Dambarudhar Samantaray was the original owner of sabik plot nos.573 and 563. He sold sabik plot no.573 to one Jagannath Rath by means of a registered sale deed dated 8.9.1953, Ext.4. Instead of plot no.573, plot no.563 had been mentioned in the sale deed. Thereafter, Jagannath Rath sold the suit land to the plaintiff and defendant no.3. According to them, they are in possession of sabik plot no.563, whereas plaintiff and defendant no.3 are in possession of sabik plot no.573. 4. On the inter se pleadings of the parties, learned trial court framed seven issues. Parties led evidence. Learned trial court dismissed the suit with the finding that the defendants are in possession of the suit land. Unsuccessful plaintiff filed T.A.No.4 of 1985 before the learned Subordinate Judge, Khurda, which met the same fate. 5. The Second Appeal was admitted on the substantial questions of law enumerated in grounds no.A, B & D of the appeal memo. The same are: "A. For that the contesting defendants are no way related to original transferer viz. Dambarudhara Samantaray and they have no semblance of right title and interest in respect of the suit land. 5. The Second Appeal was admitted on the substantial questions of law enumerated in grounds no.A, B & D of the appeal memo. The same are: "A. For that the contesting defendants are no way related to original transferer viz. Dambarudhara Samantaray and they have no semblance of right title and interest in respect of the suit land. Except the allegation that they are in possession of the suit land along with the descendants of Dambarudhara Samantaray i.e. original owner of the suit land and while the descendants of Dambarudhara Samantaray have not challenged the sale deed, Ext.4 dated 8.9.1953 sale deed, Ext.1 dated 12.4.1958 on the ground that the mistake plot has been noted in the sale deed., at any time before the settlement authority or before this court, and further also they have not challenged the same or adduce the evidence in the present suit and hence, the contesting defendants have no locustandy to challenge that plot no.563 corresponds to current survey settlement plot no.487 has not been sold to the plaintiff and current settlement plot no.507 in fact sold to the plaintiff. The learned Court below without considering the aforesaid position dismissed the suit, and appeal which is bad and illegal and is liable to be set aside. B. For that the plot number and area tally the term of the deed and there is no uncertainty about it and its identity is unquestionable in the fact and circumstance of the case and the fact that the suit land originally was belonged to Dambarudhara Samantaray is admitted. It is settled law that if independently of the boundaries the property can be sufficiently identified, any error of mis-description in boundaries can not affect either the suit or the decrees. The area and plot no.1 under Ext.4 and Ext.1 is sufficiently identifiable in survey of settlement land and the record of rights. And it is also the admitted case that the said land is identifiable at the spot with reference to the plot number and area in question and as such the oral evidence adduced by the contesting defendants is hit by section 92 of the evidence Act and the learned Courts below made an error in law of holding that the plaintiff have purchased plot no.507 and not the plot no.563 is bad and illegal. D. For that Ext.4 and Ext.1 are the title deeds in favour of plaintiff and Ext.2 is the record of right showing plaintiff as the owner in possession of the suit land and Ext.2 has a statutory presumption of correctness until and unless it is rebutted and it is to be held good title in favour of the record of royat. Ext.3 to 3/c series are rent receipts in token of the payment of land revenue of the suit land by the plaintiff which is the documentary evidence showing the possession of the plaintiff in the suit land. And in additional to this, plaintiff has produced including himself 5 witnesses who speak about the possession of the plaintiff over the suit land. The learned Courts below without taking into consideration the aforesaid documents and fact of possession and without any evidence came to the conclusion that the contesting defendants are in possession of the suit land. The aforesaid conclusion is based on no evidence. The learned Courts below relied on Ext.H, the report of the Commissioner has not given the description of the suit land, stating therein that the Barapali Latrine and Cow dungs are situated in the suit land. Hence, the Commissioner report has no relevancy for ascertaining that contesting defendants are in possession and the learned courts below without considering the Commissioner report properly held that defendant no.1 and 2 are in possession of the suit land." 6. Heard Mr.Sambit Rath, learned Advocate on behalf of Mr.Ganeswar Rath, learned Senior Advocate for the appellant and Mr.Debasis Chhotray, learned Advocate on behalf of Mr.Bijan Ray, learned Senior Advocate for the respondents. 7. Mr.Rath, learned Advocate for the appellant, submitted that the suit land originally belonged to Dambarudhar Samantray. He alienated the same to one Jagannath Rath by means of a registered sale deed dated 8.9.1953, Ext.4. Thereafter, Jagannath Rath alienated the suit land to the plaintiff and defendant no.3 by means of a registered sale deed dated 12.4.1958, Ext.1. They used to pay rent. They are in possession of the said land. He further submitted that description of the boundary mentioned in Ext.4 refers to sabik plot no.573 corresponding to hal plot no.507. Hal Plot no.507 was amalgamated with the land purchased by the plaintiff. Plot no.563 corresponding to hal plot no.487 khata no.77 mentioned in the sale deed does not tally. They are in possession of the said land. He further submitted that description of the boundary mentioned in Ext.4 refers to sabik plot no.573 corresponding to hal plot no.507. Hal Plot no.507 was amalgamated with the land purchased by the plaintiff. Plot no.563 corresponding to hal plot no.487 khata no.77 mentioned in the sale deed does not tally. But then Ext.4 is a document of thirty years old. Such discrepancy in the sale deed cannot be allowed to stand. He further submitted that when there is a discrepancy in the khata number, plot number and boundary, the boundary will prevail. To buttress the submission, he placed reliance on a decision of this Court in the case of Babaji Dehuri and others v. Biranchi Ananta and others, (1996) AIR(Ori) 183. 8. Per contra, Mr.Chhotray, learned Advocate for the respondents submitted that the plaintiff had not purchased plot no.563. He purchased plot no.573. The courts below concurrently held that the plaintiff is not in possession of the suit land. Thus, the suit for permanent injunction is not maintainable. 9. Learned appellate came to hold that plaintiff and his father, P.Ws.4 & 5 have admitted in their cross-examination that sabik plot no.563 is in possession of defendant nos. 1 and 2. Both the courts below concurrently held that the plaintiff is not in possession of the suit land. This is essentially a finding of fact. There is no perversity in the same. 10. In Bruce v. Silva Raj and others, (1987) Supp1 SCC 161, the apex Court held that injunction can be obtained on the basis of possession. Where possession of the adversary has been confirmed, no injunction can be granted. In Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs. and another, (2007) AIR(Supreme Court) 900, the apex Court held that under Sec.38 of the Specific Relief Act, 1963, an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In view of the discussions made above, the substantial questions of law do not arise for consideration. 11. Resultantly, the appeal fails and is dismissed. No costs. Final Result : Dismissed