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2018 DIGILAW 647 (ORI)

Kusadev Sahu v. Mandardhar Sahu

2018-07-09

D.DASH

body2018
JUDGMENT The appellants in this appeal under Section 100 of the Code of Civil Procedure (for short ‘the Code’) has called in question the judgment and decree passed by the learned 2nd. Additional District Judge, Cuttack in R.F.A. No.112 of 2005 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division) 2nd. Court, Cuttack in Title Suit No.134 of 2002 by dismissing the first appeal filed present appellants (defendants) and declining to upset the judgment and decree restraining the appellants (defendants) permanently from interfering in the peaceful possession of the respondent (plaintiff) over the suit land in any manner and/or putting up any such construction over there. 2, For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial Court. 3. The plaintiffs case is that he had purchased Ac.0.01 decimals of land from out of sabik plot No.145; Ac.0.04 decimals of land from out of sabik plot No.157 and Ac.0.05 decimals of land from out of sabik plot No.158 under sabik Khata No.39 of mouza Tilakana under Salipur P.S. in the district of Cuttack by registered sale deed dated 20.09.1957. It is stated that since purchase, the plaintiff has been in possession of the property. One Saraswati Dibya, wife of Raysaheb Gopabandhu Choudhury of village Benipur was the owner in possession of the above land under three plots. She had transferred half portion from each of those three plots of the land to the plaintiff by the above registered sale deed dated 20.09.1957.The rest half of the land under those plots measuring Ac.0.010 decimals had been leased out by her to one Banchhu Sahu and Madan Sahu, who are the predecessors-in-interest of these defendants. It is further submitted that subsequently in an amicable settlement between the plaintiff and the predecessors-in-interest of the defendants, the plaintiff got Ac.0.05 decimals, those lands pertaining to sabik plot No.158 which had been leased out to Banchhu and Madan in exchange of his own purchased land measuring Ac.0.05 decimals, with the bifurcation – Ac.0.01 decimals (sabik plot No.145) and Ac.0.04 decimals (sabik plot No.157). It is stated that as per said amicable settlement, the plaintiff became the owner in possession of the entire land under sabik plot No.158, whereas predecessors-in-interest of the defendants remained in possession of the entire land under sabik plot Nos.145 and 157. In view of that, state of affairs in the field in so far as the possession of the land by the parties are concerned, the enjoyment of the same by them remained as per said settlement. Land measuring Ac.0.08 decimals from out of sabik plot lNo.158 was acquired and that was prior to the closure of this hal settlement operation of the year 1970. It is stated that the plaintiff remained in possession of the land measuring Ac.0.02 decimals from out of sabik plot No.158. However, this Ac.0.02 decimals of land appertaining to said sabik plot No.158 somehow was erroneously recorded in the name of Saraswati Dibya with a note of illegal possessions standing in favour of the plaintiff. It is stated that the error continued to be reflected in the records coming to be prepared during consolidation operation and as such, the suit land stood recorded in the name of Saraswati Dibya in the L.R. stage of the consolidation. The plaintiff filed an objection under Section 9 (3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, called, the OCH&PFL Act) before the Assistant Consolidation Officer for recording of the land in his favour by substituting the name of Saraswati Dibya on the basis of this registered sale deed executed by the Saraswati Dibya in his favour and in view of the fact that the possession of the same exclusively remains with the plaintiff. The objection was allowed, which was followed by a direction for recording of Ac.0.019 decimals of land from out of LR plot No.100 in favour of the plaintiff. The defendants had also filed an objection before the Assistant Consolidation Officer for recording of Ac.0.010 decimals of land from out of LR Plot No.100 in their names. That was also allowed and it was ordered therein that the balance area of Ac.0.009 decimals be recorded in the name of the plaintiff. This order was challenged by the plaintiff by filing the revision under Section 37 (1) of the OCH & PFL Act before the Commissioner, Consolidation in Revision Case Nos.1372 and 1373 of 1995. That was also allowed and it was ordered therein that the balance area of Ac.0.009 decimals be recorded in the name of the plaintiff. This order was challenged by the plaintiff by filing the revision under Section 37 (1) of the OCH & PFL Act before the Commissioner, Consolidation in Revision Case Nos.1372 and 1373 of 1995. It was prayed therein that the land measuring the area of Ac.0.019 decimals be recorded in favour of the plaintiff. The Commissioner after hearing, while quashing the impugned order, remitted the matter to the Consolidation Officer for hearing the objection cases afresh and pass appropriate order thereof. The Consolidation Officer after remand allowed the claim of the plaintiff and passed the order for recording of LR plot No.100 measuring an area Ac.0.019 decimals in his favour. There was no further challenge to the said order of Consolidation Officer. In pursuance of the said order, the consolidation record of right in respect of L.R. plot No.100 was prepared exclusively in the name of plaintiff in respect of the land under consolidation plot lNo.333 pertaining to consolidation Khata No.249; measuring an area of Ac.0.019 decimals. After publication of the record of right in the consolidation operation, the defendants questioned the same by carrying revision before the Commissioner, Consolidation under Section 37 (1) of the Act in Revision Case Nos.1372 and 1373 of 1995 which were dismissed. It is next stated that the plaintiff continued to possess the suit land as before and the defendants having no manner of right, title and interest, created disturbance in his peaceful possession of the suit land, they also threatened the plaintiff to put up construction over the same since they have already filed Revision Case No.405 of 2002 before the Commissioner Consolidation questioning the very order passed in Remand Case No.1372 and 1373 of 1995. In view of the above threat form the side of the defendants, the plaintiff filed the suit for permanent injunction. 4. The defendants besides the technical pleas as regards the maintainability of the suit on the ground of limitation and lack of cause of action for the plaintiff to file the suit; while traversing the plaint averments have pleaded that the suit land which relates to sabik Khata No.39 was the ex-Intermediary estate of Raysaheb Gopabandhu Choudhury and stood recorded under “Nijchas” status. It is their case that Banchhu (father of defendant No.1 and 2) land Madan (father of defendant No.3 and 5) had taken an area of Ac.0.005 decimals out of sabik plot No.158;Ac.0.04 decimals out of sabik plot No.157 and an area of Ac.0.02 decimals under plot No.145 on lease from Saraswati Dibya wife of Rayasaheb Gopabandhu Choudhury. It has been pleaded that since the entire land of Ac.0.02 decimals pertaining to Plot No.145 has been leased out by an un-registered deed dated 06.05.1945 in favour of the predecessors-in-interest of the defendants, there was no left out land available in the hands of Saraswati for being sold to the plaintiff in the year, 1957. It is stated that the plaintiff is entitled to get only Ac.0.09 decimals from out of sabik plot No.157 and 158 and as such he has no title over the Ac.0.01 decimal of land under sabik plot No.145 which he has asserted. It has been stated that the land measuring Ac.0.08 decimals was acquired by the State under that plot, the plaintiff have the right over Ac.0.05 decimals of land and their predecessors-in-interest had equal share over that land measuring Ac.0.01 decimals remaining as the balance area after acquisition of the land out of the said plot by the State. It is next stated that in the hal settlement operation in the year 1970, the balance area of Ac.0.02 decimals under sabik plot No.158 was recorded under plot No.100 assigned with the Khata No.216 in the name of Saraswati and the plaintiff as well as the predecessors-in-interest of the defendants are not lawful purchasers of the said land. In the consolidation operation, the said plot bearing No.100 under L.R. Khata lNo.157/2 was recorded in the name of Saraswati under “Bebandobasta” status with the note of illegal possession in favour of the plaintiff and the defendants. So, the defendants filed Objection Case No.2879 of 1991 under Section 9 (3) of the OCH & PFL Act to record the land measuring Ac.0.01 decimal in their favour and rest Ac.0.09 decimals in favour of the plaintiff. So, the defendants filed Objection Case No.2879 of 1991 under Section 9 (3) of the OCH & PFL Act to record the land measuring Ac.0.01 decimal in their favour and rest Ac.0.09 decimals in favour of the plaintiff. They say that the objection case was rightly allowed by the Consolidation Officer in their favour and after remand by virtue of the order passed by the Commissioner Consolidation Revision Cases, the Consolidation Officer passed erroneous order directing the recording of the land of Ac.0.019 decimals pertaining to L.R. Khata No.100 in favour of the plaintiff. Hence, the defendants filed a revision which is subjudice. They also state that a family settlement had been arrived at between the plaintiff and predecessors-in-interest of the defendants and as per the same, the plaintiff was allotted only Ac.0.05 decimals of land from out of sabik plot No.158 and Ac.0.04 decimals of land from out of sabik plot No.157.Thus, in total Ac.0.09 decimals of land as per his claim of purchase under the registered sale deed dated 20.09.1957. The predecessors-in-interest of the defendants were allowed with the balance area of land measuring Ac.0.05 decimals of land out of sabik plot No.158, Ac.0.04 decimals out of plot No.157 and the entire area of land under sabik plot No.145 measuring Ac.0.02 decimals along with another piece of their purchased land measuring Ac.0.02 decimals out of sabik plot No.146 and khata No.55 in the mouza i.e. Tilakana. Thus, it is stated that predecessors-in-interest of the defendants had been allotted with the land measuring Ac.0.03 decimals which was recorded under hal settlement of the year 1970 vide plot No.98 measuring an area of Ac.0.048 decimals and plot No.101 measuring land of Ac.0.08 decimals under Khata No.25.They say that though lthe area of plot No.98 has been recorded as Ac.0.48 decimals, they are in actual physical possession of land measuring Ac.0.040 decimals which is in tune with the area as ascertainable from the map. It is also stated that the hal plots were recorded as consolidation plot No.335 measuring an area of Ac.0.048 decimals and plot No.334 measuring an area of Ac.0.040 decimals in the name of the defendants under consolidation khata No.51 but as the predecessors-in-interest of the defendants were allowed with Ac.0.31 decimals of land from out sabik plot Nos. It is also stated that the hal plots were recorded as consolidation plot No.335 measuring an area of Ac.0.048 decimals and plot No.334 measuring an area of Ac.0.040 decimals in the name of the defendants under consolidation khata No.51 but as the predecessors-in-interest of the defendants were allowed with Ac.0.31 decimals of land from out sabik plot Nos. 158, 157, 145 and 146 and they are recorded as owners in respect of an land measuring Ac.0.012 decimals; they only claim from the consolidation plot No.333, land measuring Ac.0.019 decimals pertaining to Khata No.249, land allege that the entire suit land, has been wrongly recorded in the name of the plaintiff. Furthermore, in view of the pendency of the consolidation revision, they urge for dismissal of the suit. 5. Faced with the above rival pleadings, the trial Court has framed as many as five issues; out of which issue No. (III) and (IV) being crucial are quoted hereunder:- (III) Whether the plaintiff had purchased Ac.0.010 decimals of land i.e. Ac.010 dec out of sabik plot No.145 across Ac.0.04 dec. of land out of sabik plot No.157 and Ac.05 dec. of land out of sabik plot HNo.158 from his vendor Saraswati Dibya but his entitled to get only Ac.0.09 dec. of land and his vendor had already leased out the entire area i.e. Ac.02 dec. pertaining to sabik Plot No.145 to the predecessors-in-interest of the defendants much prior to the execution of said deed in favour of the plaintiff ? (IV) Whether the defendants having been entitled to Ac.11 dec. of land out of the three suits sabik plot i.e. 145, 157 and 158 by virtue of an un-registered deed of lease in favour the predecessors-in-interest are still the owner in possession in respect of Ac.01 decimal of land in suit sabik plot No.158 after acquisition of Ac.08 dec. of land out of the same plot by the Government. 6. On the rival pleadings and keeping in view the evidence on record, the trial Court after analyzing the same has answered both the issues in favour of the plaintiff and that has practically led to decree the suit. 7. The defendants being aggrieved by the same having carried first appeal under Section 96 of the Code of Civil Procedure, have not been successful in getting the said judgment and decree over turned. 7. The defendants being aggrieved by the same having carried first appeal under Section 96 of the Code of Civil Procedure, have not been successful in getting the said judgment and decree over turned. The lower appellate court as is seen from the judgment having gone to churn the evidence on record and upon analysis of the same in the touchstone of the rival case has concurred with the answers on the findings recorded by the Trial Court.That has led to the dismissal of the appeal and confirmation of the judgment and decree passed by the Trial Court. 8. The defendants thus having been unsuccessful in the first appeal have filed the present appeal under Section 100 of the Code impeaching the concurrent finding of the Trial Court as well as the First Appellate court and the final outcome of the suit. 9. The appeal has been admitted on the following substantial question of law :- “Whether the findings of the courts below that the plaintiff is entitled to the land measuring Ac.0.02 decimals out of plot No.158 after acquisition of Ac.0.08 decimals from plot No.158 can sustain in the eye of law in the absence of any document being filed by the plaintiff relating to the amicable settlement which is projected as the basis of such claim and merely by relying on some stray statement of the parties without receiving corroboration from any other source ?” 10. (a) Learned Counsel for the appellants submitted that the courts below have erred in law by recording the findings in favour of the basis/substratum of the claim of the plaintiff over the land in suit. He, therefore, submitted that since the basis of the claim of the plaintiffs right over the property is the amicable settlement which is not acceptable, the suit has to fall. (b) Learned Counsel for the respondent submitted all in favour of the findings recorded by the Trial Court, and the judgment and decree passed subsequent thereto in appeal being based upon the findings arrived at upon proper analysis and being appreciated correctly. He further submitted that in view of the registered sale deed under Ext.1, admitted family settlement between the plaintiff and the predecessors-in-interest of the defendants, the settlement record of right, Ext. He further submitted that in view of the registered sale deed under Ext.1, admitted family settlement between the plaintiff and the predecessors-in-interest of the defendants, the settlement record of right, Ext. 2, the plaintiff has valid title over the suit land which has been finally determined by the competent authority available under the OCH & PFL Act and those having attained finality are no more open to challenge in the suit. It was also submitted that the plaintiff’s right having also been established/recognised as per the order of the OEA Collector-Tahasildar under Ext. 14, the judgment and decree are unassailable. He contended that it being a suit for permanent injunction, ignoring the rival case of the parties with regard to right, title and interest over the suit properties and without framing any issue and answering same, relying upon the entries in the record of right of consolidation operation as the document of title, the same has to be decreed and therefore, the ultimate decision decreeing the suit has to stand. He further submitted that even accepting for the sake of argument that the intermediary had no right to convey the property which he has done and say, accordingly terming it to be void, the plaintiff by virtue his purchase can well be said to have acquired the right by remaining all along in possession since then. He next submitted that the suit land having been settled under Ext. 13 fixing the rent; the same establishes the title of the plaintiff. He submitted that when the family settlement stands admitted, the court below did commit no mistake by accepting the same keeping in view the conduct of the parties in clearly showing that the settlement has been acted upon. Referring to para-17 of the deposition of the D.W. 1 which runs as under :- “It is fact that we do not have any right, title and interest over the disputed land after the said land was recorded in the name of plaintiff along in consolidation authority in the Cons.ROR”; it was contended that the above evidence is enough to hold plaintiff’s title, over the suit land by saying that the defendants have no title and interest over the same and thus are to be injuncted which has been very rightly done by the court below.” 11. The suit is one for permanent injunction with the subject matter remaining the land described in the schedule of plaint that is in mouza Tilakana under Salipur police station under Khata No.249 assigned with plot No.333 measuring an area Ac.0.019 decimals. Admittedly, in the record of right of the hal settlement published in the year 1970, this land is under hal Khata no.216 of plot No.100 measuring area of Ac.0.019 decimal. Rightly or wrongly, it stood recorded in the name of Saraswati Bewa with the illegal note of possession standing in favour of the plaintiff and the predecessors-in-interest of the defendants, namely, Banchh Sahu and Madan Sahu. In L.R. stage, this land was recorded under Khata No.157/2 and plot No.100 measuring Ac.0.019 decimals. The record being reiterated in the name of Saraswati Dibya, the plaintiff filed objection vide Objection Case No.1984 of 1991 under Section 9 (3) of the OCH & PFL Act before the Assistant Consolidation Officer claiming the recording of the said land in his favour on the strength of the registered sale-deed and possession in pursuance of the same. The Assistant Consolidation Officer allowed the objection case and ordered for recording of the land in favour of the plaintiff. It is borne out from the record that Objection Case No.2579 of 1991 was also filed before the Assistant consolidation Officer under Section 9 (3) of the OCH & PFL Act with the prayer to record the Ac.0.010 decimals of land in favour of the defendants and rest Ac.0.09 decimals in favour of the plaintiff pertaining to that from L.R. Khata No.100 and plot No.157/2. In that objection case, order was passed for recording of Ac.0.09 decimals of land in favour of the plaintiff and rest Ac.0.010 decimals of land in favour of the defendants. This order has been challenged by the plaintiff in Revision Case Nos.1372 and 1372 of 1995 before the Commissioner consolidation under Section 37 (1) of the OCH & PFL Act. The plaintiff therein claimed to record the entire land measuring Ac.0.019 decimals in his favour. The matter stood remanded to the Consolidation Officer for hearing and disposal of both the objection cases i.e. Objection Case Nos.2579 of 1991 and 1984 of 1994 afresh. The Consolidation Officer has allowed the claim of the plaintiff in directing the recording of land measuring Ac.0.019 decimals under L.R. plot No.100 in her favour. The matter stood remanded to the Consolidation Officer for hearing and disposal of both the objection cases i.e. Objection Case Nos.2579 of 1991 and 1984 of 1994 afresh. The Consolidation Officer has allowed the claim of the plaintiff in directing the recording of land measuring Ac.0.019 decimals under L.R. plot No.100 in her favour. Neither any appeal nor revision was carried by the defendants. Thus, it goes without saying that the order has attained finality in all respect. The final record of right has accordingly been published. The record of land under Consolidation Khata No.249, Plot No.333 measuring Ac.0.019 decimals is in favour of the plaintiff. It is stated that only after publication of that record of right in the year 1999; Revision Case No.760 of 1999 was filed before the Commissioner, Consolidation challenging the order passed in the Remand Revision Case No.1372 and 1373 of 1995, which have been dismissed. Thus, the final order of the Commissioner Consolidation in respect of the recording of the land in suit holds the field; which has been admitted in clear terms by the defendant No.1 in his deposition before the Trial Court. The suit land in the meantime has been settled with the plaintiff under Sthitiban status by the order of the OEA-cum-Additional Tahasildar, rent has been fixed and challenge to the same has also failed. The D.W. 1, who is none other than defendant No.5 has admitted in his evidence that they do not have any right, title and interest over the disputed land which has been recorded in the name of the plaintiff alone by the order of the consolidation authority which has the jurisdiction to decide the rival claim of right, title land interest laid by the parties pertaining to the land in question. The record of right finally prepared in the said operation shows the suit land to have been recorded in the name of the plaintiff. In the above state of affairs, in my considered view, the Courts below have committed no mistake/error in answering those two issues i.e,. issue Ns. (III) and (IV) favour of the plaintiff; that to having undertaken a detail exercise in answering those issues, which was not that necessary. In the above state of affairs, in my considered view, the Courts below have committed no mistake/error in answering those two issues i.e,. issue Ns. (III) and (IV) favour of the plaintiff; that to having undertaken a detail exercise in answering those issues, which was not that necessary. The suit being one for permanent injunction, when the consolidation record of right in respect of the land in suit has been finally published and the challenges to the same has failed and the forums available under the OCH & PFL Act, have decided and declared the claim of the plaintiff’s right, title and interest over the property in question, negating the defendants claim of right over the property, the plaintiff’s suit is found to have been rightly decreed by passing a decree for permanent injunction. The substantial question of law stands accordingly answered. 12. Resultantly, the appeal stands dismissed and in the facts and circumstances without cost. Appeal dismissed.