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2024 DIGILAW 62 (ORI)

Rasogolla Jhankar v. Gobardhan Kuanar (Dead)

2024-05-20

A.C.BEHERA

body2024
JUDGMENT A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellant of this 2nd appeal was the defendant before the trial court in the suit vide T.S. No.13 of 1984 and she was the respondent before the 1st appellate court in the 1st appeal vide T.A. No.20 of 1987. 3. The respondents of this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.13 of 1984 and they were the respondents before the 1st appellate court in the 1st appeal vide T.A. No.20 of 1987. 4. The suit of the plaintiffs (respondents in this 2nd appeal) before the trial court vide T.S. No.13 of 1984 was a suit for declaration. 5. The case of the plaintiffs before the trial court in the suit vide T.S. No.13 of 1984 as per their pleadings against the defendant was that, Braja Kuanr was their common ancestor. Braja Kuanr died leaving behind his three sons, i.e., Khaga, Laxman and Padman. Khaga died issueless. Laman Kuanr died leaving behind his two sons, i.e., Bada and Sada. Bada died leaving behind his two sons, i.e., Gohardhan(plaintiff no.1) and Balabhadra(plaintiff no.2). Sada died leaving behind his one son, i.e., Rathi Kuanr and that Rathi died leaving behind his two sons, i.e., Chihiku and Tahayabi. Padamn died leaving behind his son Buddha. Budha died leaving behind his two sons, i.e. Jadu and Balabhadra. Jadu died leaving behind Rasogalla(defendant). In order to have a better appreciation, the genealogy of the parties is depicted hereunder for an instance reference:- The suit properties are Sabik Plot No.941 under Sabik Khata No.20 of 1936 settlement, which corresponds Hal Plot No.3120 under Hal Khata No.171 in Mouza Kukudahad under Kantabanji Police Station. The suit properties along with other properties were the ancestral properties of the parties. After the death of their common ancestor of Braja Kuanr, there was amicable partition of their all ancestral properties between three sons of Braja Kuanr, i.e., between Khaga, Laxman and Padamn. As per such partition between Khaga, Laxman and Padman, the settlement authorities of 1936 Sabik settlement noted their respective possession in the Sabik settlement RoR according to the allotments made in their favour in that partition prior to 1936 Sabik settlement. As per such partition between Khaga, Laxman and Padman, the settlement authorities of 1936 Sabik settlement noted their respective possession in the Sabik settlement RoR according to the allotments made in their favour in that partition prior to 1936 Sabik settlement. The possession of Laxman Kuanr was noted in respect of the suit Sabik plot, as the same along with some other properties had fallen in his share in such partition prior to 1936 Sabik settlement. The properties, those had fallen in the share of Laxman including the suit properties were partitioned between the plaintiffs and their uncle Sada, on the day of Akshyatrutiya in the year 1945. In the said partition, the suit properties had fallen into the share of the plaintiffs and since then, i.e., since 1945, the plaintiffs are possessing the suit properties being the owners thereof and they are continuing their ownership and possession on the same till date. The defendant has no manner of right, title, interest and possession over the suit properties. She (defendant) is a stranger to the suit properties, because, she (defendant) is a stranger to their family. Because, the plaintiffs belong to the branch of Laxman, but, the defendant belongs to the branch of Padman. In the last Hal major settlement, the suit properties have been recorded erroneously in the name of the defendant without any basis. When on the basis of the said erroneous recording of the suit properties in the Hal RoR in the name of defendant, she(defendant) claimed her title over the suit properties, then, the plaintiffs approached the civil court by filing the suit vide T.S. No.13 of 1984 against the defendant praying for declaration of their right, title and interest over the suit properties along with other relief, to which they (plaintiffs) are entitled for. 6. Having been noticed from the trial court in the suit vide T.S. No.13 of 1984, the defendant contested the same by filing her written statement denying the allegations alleged by the plaintiffs against her by taking her stands therein that, Budha Kuanr was the son of Padman. Budha had two sons, i.e., Jadu and Balabhadra. Khaga had adopted Jadu Kuanr (father of the defendant) observing the ceremonies including 'Duttak Homa'. Her husband is Chitaman Jhankar. The wife of Khaga Kuanr was Chena Kuanr. Budha had two sons, i.e., Jadu and Balabhadra. Khaga had adopted Jadu Kuanr (father of the defendant) observing the ceremonies including 'Duttak Homa'. Her husband is Chitaman Jhankar. The wife of Khaga Kuanr was Chena Kuanr. After marriage of defendant with Chitaman Jhankar, she and her husband stayed with the wife of Khaga, i.e., Chena Kuanr as 'Gharajwain' and maintained the widow Chena Kuanr till her death. According to her(defendant), there was never any partition by metes and bounds between the three sons of Braja Kuanr, i.e., between Khaga, Laxman and Padman prior to 1936 Sabik settlement. But, there was partition among the successors of Braja Kuanr during the time of Hal settlement operation and on the basis of such partition during Hal settlement, the suit properties were recorded in her name exclusively in Hal settlement. She (defendant) also denied about any partition between the plaintiffs and their uncle Sada Kuanr in the year 1945. The suit properties had never fallen into the share of any of the plaintiffs in any partition and the plaintiffs were/are not in possession over any portion of the suit properties. But, in fact, she(defendant) had/has been possessing the suit properties along with other properties being the successors of Jadu Kuanr. She(defendant) also challenged the suit of the plaintiffs on the ground of non-joinder and mis-joinder of the parties and also on the ground of limitation, res judicata and estoppel. As per her aforesaid pleadings, she(defendant) claimed for dismissal of the suit of the plaintiffs. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the trial court in the suit vide T.S. No.13 of 1984 and the said issues are:- ISSUES 1. Whether the defendant's father, i.e., Jadu is the adopted son of Khaga and if so whether the defendant succeeded to the suit land through Khaga in that right? 2. Whether Braja Kuanr's son Khaga, Laxman and Padman devided their land in Khata No.20 prior to 1936 settlement and the suit land fell into the share of Laxman and subsequently to the share of the plaintiffs in the partition in 1945 between Sada and the plaintiffs? 3. Who is in possession of the suit land and has the plaintiffs perfected their title by adverse possessions over the suit land? 4. Is there any cause of action for the suit? 5. 3. Who is in possession of the suit land and has the plaintiffs perfected their title by adverse possessions over the suit land? 4. Is there any cause of action for the suit? 5. Is the suit under valued? 6. Is the suit bad for non-joinder of necessary parties? 7. Is the suit maintainable? 8. To what relief, plaintiff, are entitled to? 8. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendant, they (plaintiffs) examined two witnesses from their side including the plaintiff no.1 as P.W.1 and relied upon the documents vide Exts.1 to 5 on their behalf. On the contrary, in order to defeat/nullify the suit of the plaintiffs, the defendant examined three witnesses on her behalf including herself as D.W.1 and relied upon the documents from her side vide Exts.A to F. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiffs and against the defendant and decreed the suit of the plaintiffs vide T.S. No.13 of 1984 on contest against the defendant as per its judgment and decree dated 16.05.1987 and 10.07.1987 respectively and declared the right, title and interest of the plaintiffs over the suit properties assigning the reasons that, the well corroborated evidence adduced on behalf of the plaintiffs in support of their pleadings coupled with the note of separate possession in favour of the plaintiffs in respect of the suit properties in Sabik 1936 RoR are establishing partition of their all ancestral properties including the suit properties between three sons of Braja Kuanr, i.e., Khaga, Laxman and Padman and as per such partition, the note of possession was indicated in favour of the plaintiffs in respect of the suit properties in 1936 Sabik settlement RoR and as such, the Suit Plot No.941 had fallen into the share of the predecessor of the plaintiffs, i.e., Laxman Kuanr. Thereafter all, the joint properties between the plaintiffs and Sada Kuanr were partitioned in the year 1945 and in such partition, the suit properties had fallen into the share of the plaintiffs and accordingly since 1945, the plaintiffs are in possession over the suit properties being the owners thereof, but the defendant has never possessed the same. Thereafter all, the joint properties between the plaintiffs and Sada Kuanr were partitioned in the year 1945 and in such partition, the suit properties had fallen into the share of the plaintiffs and accordingly since 1945, the plaintiffs are in possession over the suit properties being the owners thereof, but the defendant has never possessed the same. In the Hal settlement, the suit properties have been recorded erroneously in the name of the defendant without any basis, though the suit properties are in possession of the plaintiffs and they are possessing the same being the owners thereof on the basis of partition in the year 1945. Therefore, the recording of the suit properties in favour of the defendant in the Hal settlement is baseless. The defendant has also not been able to establish the adoption his father by Khaga Kuanr, for which, the plaintiffs are entitled for the decree of declaration of their right, title and interest over the suit properties, because they (plaintiffs) being two brothers, they are the owners of the same. 10. On being dissatisfied with the aforesaid judgment and decree dated 16.05.1987 and 10.07.1987 respectively passed by the trial court in T.S. No.13 of 1984 in favour of the plaintiffs and against the defendant, she (defendant) challenged the same by preferring the 1st appeal being the appellant vide T.A. No.20 of 1987 against the plaintiffs by arraying them(plaintiffs) as respondents. After hearing from both the sides, the 1st appellate court dismissed that 1st appeal of the defendant vide T.A. No.20 of 1987 on contest as per its judgment and decree dated 16.09.1988 and 30.09.1988 respectively and confirmed the judgment and decree passed by the trial court in T.S. No.20 of 1987. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the defendant vide T.A. No. 20 of 1987, she (defendant) challenged the same by preferring this 2nd appeal being the appellant against the plaintiffs by arraying the them(plaintiffs) as respondents. 12. As during the pendency of the 2nd appeal, the respondent no.1 (who was the plaintiff no.1) expired, then his legal heirs have been substituted in his place. 13. This 2nd appeal was admitted on formulation of the following substantial questions of law :- (i) Whether the courts below are justified in passing the decree, once the finding is arrived that, the suit is under-valued? 13. This 2nd appeal was admitted on formulation of the following substantial questions of law :- (i) Whether the courts below are justified in passing the decree, once the finding is arrived that, the suit is under-valued? (ii) Whether the suit was couched as a suit for declaration, for correction of the settlement entries? (iii) Whether the declaratory suit is maintainable in view of Section 34 of the Specific Relief Act? 14. I have already heard from the learned counsels of both the sides. 15. In order to have just decision of this 2nd appeal, the above substantial questions of law are required to be answered one after another serially and chronologically. 16. So far as the 1st formulated substantial question of law, i.e., whether the courts below are justified in passing the decree, once the finding is arrived that, suit is under-valued. At the time of answering issue no.5 relating to this matter, the trial court has observed that, as per the value of the suit properties, the plaintiffs are required to pay Rs.150/- only as court fee, but, they have paid Rs.22.50P, for which, the trial court directed the plaintiffs to pay the deficit court fee before the decree is drawn up. The said observations of the trial court made in the issue no.5 regarding the direction to the plaintiffs to pay the deficit court fees before the decree is drawn up was confirmed by the 1st appellate court. 17. As per the provisions of law envisaged in Section 149 of the C.P.C., 1908 that, 'Court has the authority to call upon the plaintiffs to make payment of necessary court fee and such authority of court can be exercised at any stage of the suit. 18. The law on this aspect has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:- (i) 2012(3) Civil Court Cases-850(S.C.) : A Nawab John and others vrs. V.N. Subranimam-C.P.C., 1908-Section 149-Deficit court fee-Extension of time-Court has authority to call upon the plaintiff to make payment of necessary court fees and such authority of court, can be exercised at any stage of the suit. (ii) 2021(2) Civil Court Cases-780 (Karnataka)-J. Rajiv Kumar vrs. V.N. Subranimam-C.P.C., 1908-Section 149-Deficit court fee-Extension of time-Court has authority to call upon the plaintiff to make payment of necessary court fees and such authority of court, can be exercised at any stage of the suit. (ii) 2021(2) Civil Court Cases-780 (Karnataka)-J. Rajiv Kumar vrs. G.A. Leelavathi-C.P.C., 1908-Section 149- Payment of deficit court fee-Extension of time-Power of court, to make up deficiency of court fee is subject to discretion of court and is not claimable as of right by a party- Said discretion cannot be interfered with unless exercised in violation of recognized principles of law or cause grave injustice. (iii) 2021(1) Apex Court Judgments-80(S.C.) : Atma Ram vrs. Charanjit Singh-C.P.C., 1908-Section 149-Payment of deficient court fee-Section 149 of C.P.C. confers discretion upon court to allow a person to pay the deficient court fee at any stage. Once the courts exercises such a discretion and payment of court fees is made in accordance with said decision, document under Section 149, C.P.C. shall have same force and effect as if, such fee had been made in 1st instance. 19. Here in this suit/appeal at hand, when the trial court at the time of answering issue no.5 concerning the matter relating to under-valuation directed the plaintiffs to pay the deficit court fee, i.e., Rs.127.50P before the decree is drawn up, then, in view of the principles of law enunciated in the ratio of the aforesaid decisions, it cannot be held that, the courts below were not justified in passing the decree, because, there was no finding by the trial court that, the suit was under-valued. Rather, the trial court has exercised its jurisdiction lawfully being authorized under Section 149 of the C.P.C. directing the plaintiffs to pay deficit court fees, i.e., Rs.127.50P before the decree is drawn up. So, the said observations and the findings made by the trial court and the 1st appellate court in respect of issue no.5 cannot be held as incorrect. 20. So far as the 2nd formulated substantial question of law, i.e., whether the suit was couched as a suit for declaration, for correction of statement entries is concerned, the plaintiffs have filed a suit vide T.S. No.13 of 1984 praying for declaration of their title over the suit properties. The suit of the plaintiffs is not for correction of the settlement RoR. 21. The suit of the plaintiffs is not for correction of the settlement RoR. 21. Now, it will be seen, whether the suit of the plaintiffs for declaration of their title over the suit properties after publication of the Hal RoR of major settlement in respect of the suit properties in favour of the defendant is maintainable under law? On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) 1978(I) CWR-209 : State of Orissa vrs. Smt. Pana Mali-Specific Relief Act, 1963-Section 34 read with Orissa Survey and Settlement Act, 1958-Section 42-Suit based on title does not come within the ambit of Section 42- The plaintiff's suit being based on antecedent title, they are entitled to succeed, unless, the defendants establish loss of plaintiffs title by adverse possession. (ii) 64(1987) CLT-523 : Radhika Bewa & Radha Dei and others vrs. Panchanan Sahu & others-Specific Relief Act, 1963-Section 34 read with Orissa Survey and Settlement Act, 1958-Section 42-The Civil courts can go behind the settlement entries and determine the right, title and interest of any party in respect of the land. The entries by themselves either do not create title or extinguish it and hence it is always open to the Civil Courts to find the real holder of the title despite any entries in settlement papers. (iii) 2019(II) CLR-833 : Dharmananda Sahu (Dead) through LRs. vrs. State of Orissa and others-Orissa Survey and Settlement Act, 1958-Section 42-Suit being not for correction of RoR, limitation prescribed under Section 42 does not apply. (iv) 2019(I) CLR-1107 : Chitrasen Majhi and others vrs. State of Orissa and others-Orissa Survey and Settlement Act, 1958-Section 42-The plaintiff's suit for declaration of title, not for correction of RoR, the suit is governed under Article 58 of the Limitation Act. The period of limitation is three years, when the right to sue first occurrences, i.e., when threat is given on the basis of the RoR. (Para-14) 22. State of Orissa and others-Orissa Survey and Settlement Act, 1958-Section 42-The plaintiff's suit for declaration of title, not for correction of RoR, the suit is governed under Article 58 of the Limitation Act. The period of limitation is three years, when the right to sue first occurrences, i.e., when threat is given on the basis of the RoR. (Para-14) 22. Here in this suit /appeal at hand, when the plaintiffs have prayed for declaration of their right, title and interest over the suit properties without any prayer for correction of major settlement Hal record of right in respect of the suit properties recorded in favour of the defendant and when as per law, the entries in the settlement themselves neither creates title nor extinguishes it and it is always open to the civil court to find the real holder of title of the suit properties despite entries made in the settlement papers, then, at this juncture, it cannot be held that, the plaintiffs have filed the suit for declaration couching the same indirectly for the correction of Hal major settlement RoR of the suit properties. For which, the suit of the plaintiffs is not hit and bar under Section 42 of Orissa Survey and Settlement Act. Therefore, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the suit of the plaintiffs for declaration of their right, title and interest over the suit properties is maintainable under law. 23. Therefore, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the suit of the plaintiffs for declaration of their right, title and interest over the suit properties is maintainable under law. 23. So far as the third formulated substantial question of that, i.e., whether the declaratory suit filed by the plaintiffs vide T.S. No.13 of 1984 is maintainable in view of Section 34 of the Specific Relief Act is concerned, when it is the settled propositions of law that, the entries made in the settlement RoR in favour of any party does not create or extinguish title, but the same is a medium for correction of land revenue and it is always open to the civil court to find out the real title holder of the suit properties despite entries made in the settlement papers and when as per the concurrent findings of the trial court and 1st appellate court on facts after appreciating the oral and documentary evidence of the parties that, the plaintiffs are the owners and in possession over the suit properties and the defendant has no title or possession on the same, then at this juncture, it cannot be held that, the suit filed by the plaintiffs for declaration their right, title and interest over the suit properties was not maintainable under law. Rather, the concurrent findings of facts by the trial court and 1st appellate court are ultimately going to show that, the declaratory suit filed by the plaintiffs seeking the relief under Section 34 of the Specific Relief Act, 1963 in respect of the suit properties against the defendant is maintainable under law. When the answers of the above three formulated substantial questions of law are in favour of the plaintiffs and when the concurrent findings made by the trial court and 1st appellate court are in favour of the plaintiffs and against the defendant concerning the title and possession of the plaintiffs over the suit properties, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellant (defendant) does not arise. Therefore, this 2nd appeal filed by the appellant (defendant) must fail. 24. In result, the 2nd appeal filed by the appellant(defendant) is dismissed on contest against the respondents (plaintiffs), but without cost. 25. Therefore, this 2nd appeal filed by the appellant (defendant) must fail. 24. In result, the 2nd appeal filed by the appellant(defendant) is dismissed on contest against the respondents (plaintiffs), but without cost. 25. The judgment and decree passed by the trial court in T.S. No. 13 of 1984 and the confirmation of the same by the 1st appeal court in T.A. No. 20 of 1987 are confirmed.