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2019 DIGILAW 561 (ORI)

Jaidhar @ Jaideb Pradhan v. Urkuli Kumar

2019-09-05

A.K.RATH

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JUDGMENT : A.K. Rath, J. Defendant no.5 is the appellant against the confirming judgment. 2. Manohara Kumra, predecessor-in-interest of respondent nos.1 to 7 instituted the suit for declaration of title, recovery of possession and consequential reliefs. The case of the plaintiff was that he had purchased the suit land from Gajendra Pradhan, father of defendant nos.12 and 13, Jaladhar Pradhan, father of defendant nos.18 to 21, Ratha Pradhan, defendant no.4 and his son Jaidhar 2 Pradhan, defendant no.5 by means of a registered sale deed dated 4.1.1962. He was in possession of the suit land. On 13.9.1971, the defendants forcibly dispossessed him from the suit land. Thereafter, a proceeding under Sec.145 Cr.P.C. was initiated before the Sub-Divisional Magistrate, Sundargarh. In the said proceeding, possession of the defendants was declared. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendant nos.1 and 8 filed written statement supporting the case of the plaintiff. Defendant no.5 filed written statement denying the assertions made in the plaint. His case was that the suit properties were the joint family properties. The properties were not partitioned by metes and bounds. He had not alienated the suit land in favour of the plaintiff. The sale deed is fabricated. 4. On the pleadings of the parties, learned trial court struck eight issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit in part holding that the plaintiff has title over the suit schedule properties. Unsuccessful defendant no.5 filed T.A.No.27 of 1986 before the learned District Judge, Sundargarh, which was eventually dismissed. It is apt to state here that during pendency of the suit, the plaintiff died, whereafter his legal representatives had been substituted. 5. This appeal was admitted on 2.5.1988 on the following substantial question of law: What is the effect of declaration of title of defendant no.5 in the proceeding under Section 145 Cr.P.C, Ext.17. 6. Heard Mr. Byomokesh Sahoo, learned Advocate for the appellant. None appears for the respondents. 7. Mr. Sahoo, learned Advocate for the appellant submits that the suit property is the ancestral property of defendant no.5. There was no partition between the co-sharers. Defendant no.5 had not executed the sale deed, Ext.3. In the proceeding under Sec.145 Cr.P.C., the Executive Magistrate declared the possession of the defendants and his co-sharers. None appears for the respondents. 7. Mr. Sahoo, learned Advocate for the appellant submits that the suit property is the ancestral property of defendant no.5. There was no partition between the co-sharers. Defendant no.5 had not executed the sale deed, Ext.3. In the proceeding under Sec.145 Cr.P.C., the Executive Magistrate declared the possession of the defendants and his co-sharers. Thus, by the time the suit was instituted, the plaintiff was not in possession of the suit land. 8. On an anatomy of the pleadings and evidence on record, learned appellate court held that the plaintiff had purchased the suit land by means of a registered sale deed dated 4.1.1962, Ext.3. Defendant nos.1 to 8 and other co-sharers had not challenged the said sale deed. In the written statement, defendant no.5 pleaded his ignorance about the sale and denied the signature appearing in the sale deed. He compared the signature of defendant no.5 appearing in the sale deed, Ext.3 with written statement, Ext.A, hazira, Ext.B, one petition, Ext.13 and came to hold that all the signatures appear to be one and the same person. The attesting witness had proved due execution of sale deed. Though he was subjected to extensive cross-examination, but nothing had been elicited from his mouth. Defendant no.5 had alienated the land along with his co-vendors to the plaintiffs by executing the sale deed, Ext.3 for a valid consideration. The sale deed is legal and valid. The plaintiff has acquired title by way of Ext.3. In the proceeding under Sec.145 Cr.P.C., the suit land was attached. In absence of any evidence as to when possession of the defendants was declared in the said proceeding and whether possession of the suit land was delivered to them in compliance with any order passed in that proceeding, the plaintiff cannot be held to have lost title on account of his non-possession of the same. Settlement R.O.R. has been published in the name of the plaintiff. The same has presumptive value with regard to possession of the plaintiff. These are essentially findings of fact. There is no perversity in the said findings. 9. Law is no more res integra that the civil court is not bound by the order passed by the Executive Magistrate in a proceeding under Sec.145 Cr.P.C. The substantial question of law is answered accordingly. 10. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. There is no perversity in the said findings. 9. Law is no more res integra that the civil court is not bound by the order passed by the Executive Magistrate in a proceeding under Sec.145 Cr.P.C. The substantial question of law is answered accordingly. 10. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.