Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 721 (ORI)

Krushna Chandra Behera v. Laxmi Priya Panda

2018-08-07

D.DASH

body2018
JUDGMENT The unsuccessful plaintiff has filed this appeal under Section 100 of the Code of Civil Procedure questioning the judgment and decree passed by the learned Civil Judge, Puri in Title Appeal No.11/06/08 of 1994/1990/1989. The appellant as the plaintiff has filed the suit i.e. Title Suit No.120 of 1986 in the court of the learned Munsif, Puri by the said judgment and decree dated 09.12.1988 and 23.12.1988 respectively, the suit was decreed declaring the right, title and possession of the appellant (plaintiff) over the suit land and restraining the respondent No.1 ( defendant No.1) permanently from interfering with the plaintiff’s possession over the land as such. The respondent No.1 being aggrieved by said judgment and decree had carried an appeal under Section 96 of the Code as above numbered. The lower appellate has allowed the appeal and thus the appellant (plaintiff) has finally been non-suited. 2. For the sake of convenience, in order to avoid confusion and bring in clarify, the parties hereinafter have been referred to, as they have been arraigned in the trial Court. 3. The plaintiffs case is that he is the purchaser of the suit land from one Braja Mohan Mohanty in the year, 1981. It is stated that having been delivered with the possession of the suit land by the vendor, Braja Mohan, the plaintiff has been in possession of the same as such all along. As per his case, the suit land is a portion of the land under plot No.54 which corresponds to a portion of hal Plot No.587 of mouza Kumbharapada as per sabik record which has come under mouza Matiapada as per the hal record. It is stated that land under Sabik Plot No.54 is to the extent of Ac.3.67 decimals and it was ‘Mati Kharida’ land standing recorded in the name of Raja Mukunda Dev, the father of Raja Rama Chandra Dev. It is further stated that Raja Bira Kishore Dev succeeded his father Raja Rama Chandra Dev and at the same time when by virtue of the coming into force of the Orissa Estates Abolition Act, he had preferred a claim under Section 6 and 7 of the Act, particularly in respect of that land measuring Ac.3.76 decimals under Sabik plot No.54. Claim Case No.8143 of 1963-65 being registered which had been allowed in his favour. Claim Case No.8143 of 1963-65 being registered which had been allowed in his favour. It is only thereafter Raja Birakishore Dev transferred the entire area of land under Sabik Plot No.54 together with other properties to one Braja Mohan Mohanty of Puri.A potter namely, Brundaban Bisoi who used to supply Kaduas (earthen pots) for the purpose of Kothabhoga (food offerings to the Lord Jagannath, Balabhadra and Maa Subhadra from the side of the ruler) was in possession of a portion of that land in lieu of the service as he was rendering being so permitted. Raja Birakishore Dev having transferred the land as above to Braja Mohan Mohanty, he thereafter became the exclusive owner of that land under plot No.54.That potter Brundaban died leaving behind his son Fakira Bisoi and daughter Fakira Bewa. It is stated that prior to the death of that Brundaban, he gifted land of Ac.0.10 decimals out of plot No.54 in favour of his daughter Fakira Bewa and Ac.0.10 rest in favour of his son Fakira Bisoi, under two separate deeds of gifts. Braja Mohan Mohanty having purchased the entire land under plot No.54, Fakir Bewa and Fakira Bosoi did not prefer to fight with him since he happened to be an influential man of the locality. Having so decided, they purchased the piece of land from him including their own land. They purchased the land measuring Ac.0,22 decimals which included gifted land measuring Ac.0.20 decimals with a kacha house standing over it. Thereafter, Fakira Bisoi and Fakira Bewa sold their properties to different persons. When the matter stood thus, in the hal settlement operation, the land of Ac.0.22 decimals was recorded under hal plot No.587/1265, 587/1266, 587/1304, 587/1300, 587/1299, 588/586 and Ac.0.030 decimals under of hal plot Ho.587. It is stated that rest area i.e.Ac.0.015 decimals of land under plot No.587 is the subject matter of the suit. The plaintiff’s case is that he is in possession of the same and also remaining in a house which had been constructed two years prior to the suit. It is asserted that the defendant No.1 has no right, title and possession over the suit land and the description of the suit property given in the sale-deed in favour of the defendant No.1 said to have been executed by Fakira Bewa is wrong and does not tally. It is asserted that the defendant No.1 has no right, title and possession over the suit land and the description of the suit property given in the sale-deed in favour of the defendant No.1 said to have been executed by Fakira Bewa is wrong and does not tally. The plaintiff’s case is that he has purchased it from Braja Mohan Mohanty under registered sale-deed dated 13.11.1988 and in possession of the same as such. It is alleged that during hal settlement operation, erroneously half of the land under plot No.587/1304 with an area of Ac.0.015 decimals has been wrongly recorded in the name of the plaintiff, although the same belongs to defendant No.1 who is also in possession of the same. It is the case that the husband of the defendant No.1 in collusion with the settlement staff has managed to record the suit property in the name of his wife i.e. defendant No.1 and fraudulently got the land under hal Plot No.587/1304 recorded in the name of the plaintiff although, it is the defendant No.1 who is the exclusive owner in possession of the land under hal Plot No.587/1304. So, the plaintiff’s claim is that such wrong entry made in the record of the settlement operation remaining at the draft stage as such is not binding on him. Alleging that the defendant No.1 on the basis of such record has been attempting to take forceful possession of that land in suit which is in possession of the plaintiff and projecting that as the cause of action, the suit has been filed. 4. The defendant No.1 contested the suit. In the written statement she has asserted that the suit land is in her possession and it is on the strength of her purchase from Fakira Bewa. It is her case that after purchase having constructed a house over the land, she is now residing therein. According to the case of the defendant No.1, in the year 1981, Fakira Bewa was in possession of Ac.0.011 decimals of land having got the same by way of gift since 25.04.1941 and her father namely, Brundaban was a permanent tenant in respect of the said property having got the registered document in his favour being executed by Raja of Puri on 22.11.1911. It is stated that, Fakira Bewa was residing there over the suit land. It is stated that, Fakira Bewa was residing there over the suit land. The suit area was sub-divided into three plots as per the record of hal settlement which are plot Nos.588, 587 and 587/1300. It is stated that all the plots have been made keeping in view the sale made by the Fakira Bewa in favour of the defendant No.1, Gopal Chandra Mishra, and Minati Barik. This defendant No.1 has specifically stated that draft record of right is wholly in consonance with the possession of the parties in so far as the lands are concerned. Fakira Bewa is the exclusive owner of these lands and no property was with Braja Mohan Mohanty in that area. So, it is stated that there is no possibility for the plaintiff to acquire this property within this area demarcated as plot No.587 in the hal settlement. This defendant No.1 claims to have renovated the house of Fakira Bewa where she is now residing. The move of the plaintiff by filing the suit is said to be with an intention to grab a portion of the property. The defendant No.1 has questioned that the sketch map given in the plaint does not reflected the correct position of the respective plots as in the field. According to her, the plaintiff has never possessed the suit land and as per the possession of the land in the field, the settlement authority have proceeded in the matter of preparation of record after thorough measurement and demarcation. For all these, the defendant No.1 has prayed to non-suit the plaintiff. 5. On the above rival pleadings, the trial Court has framed as many as seven issues; out of which the trial Court is found to have rightly taken up issue Nos.4,5 and 6 for decision at first. These issues refer to the claim of the plaintiff having right, title, interest and possession over the suit land as also the description of the property as given is identifiable or not. The trial Court after analysis of evidence at its level has found that the suit land is the purchased land under Ext.1, the sale-deed executed by Braja Mohan Mohanty and as such has said that the plaintiff has the right, title, interest and possession over the same. The suit accordingly been decreed; the defendant no.1 therein carried a first appeal. The trial Court after analysis of evidence at its level has found that the suit land is the purchased land under Ext.1, the sale-deed executed by Braja Mohan Mohanty and as such has said that the plaintiff has the right, title, interest and possession over the same. The suit accordingly been decreed; the defendant no.1 therein carried a first appeal. The lower appellate Court upon detail examination and analysis of evidence both oral and documentary has found Ext. G, the sale-deed executed by Braja Mohan Mohanty in favour of Banamali Mohapatra in respect of land measuring plot No.589 which is to the east of plot No.587 and west of plot No.589 is the land of Gopal Mishra under plot No.588 and that of defendant No.1 under plot No.587, the sale-deed has been found to have been executed on 31.08.1982 which is after the execution of sale-deed under Ext. 1 and Ext. B. It has been stated that Braja Mohan Mohanty had admitted that the land under Plot No.587 is the plot of the defendant No.1.Accordingly, he found that the plaintiff cannot claim a portion of land under plot No.587 as his purchased land. Having found as above, it has categorically stated that it cannot be said that the plaintiff had purchased any portion of the land under plot No.587. It has also gone to say that the description of the suit land does not satisfy the legal requirement so as to be held as identifiable. Accordingly, the plaintiff has been non-suited. 6. Learned Counsel for the appellant (plaintiff) submits that the lower appellate court has not considered the fact that in the sale in favour of the plaintiff, the entire property purchased has been shown and the suit is for a part of it which has been so described; therefore, the same ought not to have been adversely viewed. He further submits that the lower appellate Court has unnecessarily given emphasis upon the records of the settlement which admittedly were then at the draft stage and not made final. According to him, the lower appellate Court could not have applied the legal presumption as to the correctness of the said recording as those had not attained finality. He further submits that the lower appellate Court has unnecessarily given emphasis upon the records of the settlement which admittedly were then at the draft stage and not made final. According to him, the lower appellate Court could not have applied the legal presumption as to the correctness of the said recording as those had not attained finality. The above having heavily weighed in the mind of the lower appellate Court to set aside the well reasoned findings recorded by the trial court, he submits that those arise as the substantial questions of law for being formulated to be answered. 7. Learned counsel for the respondent No.1 submitted all in support of the examination given by the lower appellate Court. He further submitted that both oral and documentary evidence have been critically analyzed by the lower appellate Court in the backdrop of the rival case projected by the parties in their respective pleadings and a categorical finding has been returned that the suit land is not the purchased land of the plaintiff and in fact his vendor was not having the suit land to his credit at the time of execution of the sale-deed in favour of the plaintiff. He submitted that the lower appellate Court at para-7 of its judgment although has referred to the map showing the land in the suit and that it has taken to be a map of the hal settlement, the same cannot be said to have been taken as the sole basis of the finding or its foundation. He next submitted that though, the lower appellate Court has laid some emphasis upon the recording of the land in the settlement operation in arriving at a satisfaction as to the possession of the parties, at paragraph-8 of the judgment, it has stated that presumption stands in favour of such record which have been prepared after due enquiry. 8. In order to address the submission of the leaned counsel for the appellant, it is now to be seen if such observation given by the lower appellate Court as regards the ROR of the land in question and other records has heavily impacted upon the decision on issue No.2,4, 5 and 6 or that if such findings returned by the lower appellate Court holding contrary to the one held by the trial Court are the outcome of perverse appreciation of the evidence. 9. 9. It is the case of the plaintiff that the land under sabik plot No.54 was comprising an area of Ac.3.67 decimals, the entire plot had been purchased by Braja Mohan Mohanty, who had sold Ac.0.11 decimals of land to Fakira Bewa on 13.04.1966 under sale-deed, Exec.8.The boundary of the land under the said sale-deed as has been described therein. Now Fakira Bisoi has purchased Ac.0.11 decimals from out of the land under that sabik plot from Braja Mohan Mohanty who is also the vendor of Fakira Bewa; the sister of Fakira Bisoi. Said sale deed has of course not seen the light of the day, though it was, in view of nature of dispute incumbent on the part of the plaintiff to prove the same in showing the description of the boundary of the land covered under that sale-deed taken by Fakira Bisoi. Now this Fakira has sold Ac.0.11 decimals of land to defendant nos.1 to 3 and this defendant No.1 is the purchaser of land measuring Ac.0.045 decimals,; the boundary of the land therein shows that to the north, it is the land of Fakira Bewa under plot No.558; south-road; east-land of Braja Mohan under plot No.589; and west-land of Minati Barik, the defendant No.2 under plot No.587/1300.That sale-deed is dated 09.10.1980 admitted in evidence and marked as Ext. B. The land transferred under the sale-deed was having house, gadia (small pond) and standing trees, whereas the land purported to have been sold to the plaintiff is described as ‘Gadia Bruti’ with the boundary of as under : East – Braja Mohan Mohanty – Plot No.589; West – Defendant No.2 – Plot No.587/1300; North – Defendant No.1 – portion of plot No.586; and South –Road. That, the description in the sale-deed dated 02.10.1980 (Ext.B) in favour of defendant No.1 has been asserted by the plaintiff as wrong, whereas the defendant no.1 asserts to the contrary that the description of the property in the sale-deed in favour of the plaintiff under Ext.1 is wrong. The lower appellate Court in the above situation has gone to see the description of the land as has been given in the plaint that it is only a part of plot No.587.The sketch map shows the part being marked as red. The lower appellate Court in the above situation has gone to see the description of the land as has been given in the plaint that it is only a part of plot No.587.The sketch map shows the part being marked as red. In that situation, the conclusion has been that of the description of the suit property is taken as per the plaint, then the description given in the sale-deed Ext. 1 which is the trump card for the plaintiff cannot be taken as correct and if that is taken as correct, the description given in the plaint cannot be accepted. It has further gone to analyse that the sketch map when shows that purchased land is to the west, the land of defendant No.2 has been shown to be in the west of plot No.587 in the sale-deed. Thus no fault is found with the view taken that the sketch map submitted by the plaintiff does not appear to be consistent with the description of the land given in the sale deed. The lower appellate has gone for further examination of oral evidence in greater detail and the conclusion is as under : Xxxxx xxxx xxxx xxxx Xxxx xxxx xxxx xxxx From Ext. G which is a sale-deed executed by Braja Mohan Mohanty in favour of Banamali Mohapatra in respect of plot No.589 which is to the east of plot No.587, it appears that to the west of plot No.589 is the land of Gopal Mishra (plot No.588) and that of the defendant no.1 (plot No.587).This sale-deed was executed on 31.8.1982, that is after the execution of the sale deeds under Ext.1 and Ext. B. So Braja Mohan Mohanty the vendor of the plaintiff has admitted that plot No.587 is the plot of the defendant No.1 and not that of the plaintiff. So in view of the admission of the vendor in Ext. G the plaintiff cannot claim a portion of plot No.587 as his purchased land.” 10. B. So Braja Mohan Mohanty the vendor of the plaintiff has admitted that plot No.587 is the plot of the defendant No.1 and not that of the plaintiff. So in view of the admission of the vendor in Ext. G the plaintiff cannot claim a portion of plot No.587 as his purchased land.” 10. Next finding of the lower appellate Court on discussion of evidence is categorical on the point that the plaintiff has failed to prove that she has purchased any part of land under plot No.587.Goling through the said paragraph this Court rather finds that when the trial Court had been swayed away by the description of the land given in the plaint without verifying as to whether it confirm with the descripti9on of the land given in the sale-deed and keeping in view other relevant facts emanating from the evidence as aforesaid; the lower appellate Court has undertaken the rigorous exercise in that regard. The conclusions arrived at the ultimatum are not found to have been solely based upon the not final records of the hal settlement which appears to have been inadvertently referred to as such to have attained finality. The lower appellate Court is not found to have been at fault in saying that such draft record of right being the result of field enquiry and verification of records etc. have come weight in so far as the description of the land as per the record is concerned. The trial Court having not taken into account as to whether the suit land given in the plaint, is identifiable, the lower appellate Court has rectified the said glaring mistake committed by the trial Court. The conclusions of the lower appellate Court appear to have been based on just and proper appreciation of evidence on record after having undertaken a thorough and detail exercise and the same is not found to be suffering from the vice of perversity. For the aforesaid, I am unable to accept the submission of the learned counsel for the appellant that there arises substantial question of law so as to be formulated for being answered, meriting admission of the appeal. 11. In the result, the appeal stands dismissed and in the facts and circumstances without cost. Appeal dismissed.