Dismissed

Jogeswar v. Dagili

Orissa HC11 Sept 2017SA/17/1998

Case brief

AI extract

What is this about?

This is a second appeal concerning a suit for declaration of title and recovery of possession. The appellant, who claimed ancestral ownership via Record of Rights, appealed the dismissal of his suit. The High Court held the trial courts did not err in dismissing the suit because the defendant was the great-grandson of the original owner, Meta Konhar.

What did the court decide?

The second appeal filed against the judgment and decree dismissing the suit for declaration of title and recovery of possession has been dismissed with no order as to costs.

Jogeswar Vs Dagili — Property and Title | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.17 of 1998

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From the judgment and decree dated 17.07.1997 and 24.07.1997 respectively passed by Shri D.K. Sahu, learned District Judge, Kandhamal-Boudh, Phulbani in T.A. No.4 of 1995 confirming the judgment and decree dated 14.11.1994 and 23.11.1994 respectively passed by Shri K.C. Rath, learned Addl. Civil Judge (Jr. Divn.), Phulbani in T.S. No.2/94/6/93.

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Jogeswara Konhar ….………… Appellant ---versus— Dagili @ Birma Konhar ……………… Respondent

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For Appellant : Mr. Jagannath Bhuyan, Advocate For Respondent : None

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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---------------------------------------------------------------------------Date of Hearing : 11.09.2017 │ Date of Judgment: 11.09.2017

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Dr. A.K. Rath, J. This is a plaintiff’s appeal against an affirming

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judgment in a suit for declaration of right, title and interest, confirmation of possession or in the alternative recovery of possession and permanent injunction.

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2. The case of the plaintiff is that the suit property is his ancestral property. His father was in possession of the same. After death of his father, he is in possession of the suit land. The land has

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been recorded in his name in the Record of Right and used to pay rent. The defendant, who had no semblance of right, title and interest over the same, threatened to dispossess him.

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3. The defendant filed a written statement denying the assertions made in the plaint. The specific case of the defendant is that the suit land originally belonged to one Meta Konhar. He is the great grandson of Meta Konhar. He inherited the property and is in possession of the same. Accordingly he filed a counter-claim for declaration of his title and confirmation of possession and in alternative for recovery of possession of the suit land from the plaintiff with a relief of injunction.

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4. On the interse pleadings of the parties, learned trial court struck twelve issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that Meta Konhar was the original owner of the suit land. Defendant being his great grandson inherited the suit property. He was in possession of the same. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, KandhamalBoudh, Phulbani in T.A. No.4 of 1995, which was eventually dismissed.

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5. The second appeal was admitted on the substantial

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questions of law enumerated in the appeal memo. The same are:

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“(i) Whether record-of-rights coupled with rent receipts are the evidences to prove possession along with other evidences ?

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(ii) Whether no consideration of material documents like record-of-rights and rent receipts vitiates the entire proceeding ?

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(iii) When the plaintiff has specifically pleaded and proved the question of adverse possession, no consideration of the same is illegal ?”

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6. Heard Mr. Jagannath Bhuyan, learned counsel on behalf of Mr. P.K. Routray, learned counsel for the appellant. None appears for the respondent.

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7. Mr. Bhuyan, learned counsel for the appellant submitted that Meta Konhar was the original recorded owner of the suit property. Meta Konhar on the last part of his life was ill. He was residing in the house of the plaintiff. The plaintiff used to take care of him. Meta Konhar died leaving behind no legal heir. The hal record of right has been published in the name of the plaintiff. The plaintiff had also paid rent to the landlord. He is in possession of the suit property. Both the courts below committed a manifest illegality in dismissing the suit.

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8. The submission of Mr. Bhuyan, learned counsel for the appellant is difficult to fathom. Admittedly, Meta Konhar was the

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owner of the suit property. Both the courts concurrently held that the defendant is the great grandson of Meta Konhar. The plaintiff is no way related to Meta Konhar. The suit property was recorded in the name of Meta Konhar in the sabak settlement ROR. But then in the hal settlement, the same has been recorded in the name of the plaintiff. Record of right neither creates title nor extinguishes title. Since the defendant is the great grandson of Meta Konhar, he succeeded to the property. The substantial questions of law are answered accordingly.

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9. Resultantly, the appeal fails and is dismissed. No costs.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack The 11^th September, 2017/Basanta

Jogeswar v. Dagili

Case brief

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Jogeswar v. Dagili

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