Dismissed

Chandu v. Laxman

Orissa HC8 Sept 2017SA/176/1989

Case brief

AI extract

What is this about?

The High Court of Orissa, Cuttack dismissed the second appeal filed by defendants against a confirming judgment and decree. The court upheld the suit for declaration of title and permanent injunction, rejecting the claim that the suit was barred by limitation under Section 42 of the Orissa Survey and Settlement Act. The court affirmed the findings that plaintiffs had title and possession.

What did the court decide?

No order as to costs. The appeal is dismissed.

Chandu Vs Laxman — Property and Title | Orissa HC (2017)

¶1

HIGH COURT OF ORISSA: CUTTACK

¶2

S.A. No.176 of 1989

¶3

From the judgment and decree dated 17.2.1989 and 8.3.1989 respectively passed by Shri D.K. Pradhan, learned Subordinate Judge, Anandapur in T.A. No.7 of 1980 confirming the judgment and decree dated 22.9.1980 and 30.9.1980 respectively passed by Sri S.K. Dhal, learned Munsif, Anandapur in T.S. No.51 of 1978.

¶4

Chandu Majhi and others ………...…… Appellants

¶5

---versus—

¶6

Laxman Majhi and others ……….……… Respondents

¶7

For Appellants : Mr. Ramakanta Mohanty, Senior Advocate For Respondents : Mr. Pratap Chandra Rout, Advocate

¶8

J U D G M E N T

¶9

P R E S E N T:

¶10

THE HON’BLE DR. JUSTICE A.K. RATH

¶11

---------------------------------------------------------------------------Date of Hearing :30.08.2017 │ Date of Judgment:08.09.2017

¶12

¶13

Dr. A.K. Rath, J. Defendants are the appellants against a confirming judgment.

¶14

02. The respondents as plaintiffs instituted T.S. No.51 of 1978 in the court of the learned, Munsif, Anandapur for declaration of right, title, interest, declaration of the settlement entry made in favour of the defendant nos.1 and 3 as invalid and permanent injunction impleading the appellants as defendants. The case of the plaintiffs is that the suit land appertaining to C.S. khata no.5 measuring Ac.1.07 dec. of mouza-Sikabeda described in the plaint ‘Ka’ schedule, corresponding to khata no.30 area Ac.0.99 dec.

¶15

¶16

originally belonged to one Sauna Majhi. In the year 1940, Kuanra Majhi, father of plaintiff no.1, purchased the same by way of auction sale. The land was mutated in his favour. He was in possession of the land and used to pay rent. After his death, his three sons, the plaintiffs are in joint possession of the land. The defendants, taking advantage of the wrong entry of their names in the ROR, forcibly entered the suit land on 14.7.1977. They have no semblance of right, title and interest over the same.

¶17

03. The defendant nos.1 to 3 filed a written statement denying the assertions made in the plaint. The case of the defendant nos.1 to 3 is that Kanhu Majhi was their common ancestor. He died leaving behind three sons, namely, Jadu, Sauna and Jasmat @ Matal. Jadu died leaving behind his three sons, Kanhu, Kache and Kanda. Kanda died issueless. Kache died leaving behind Gumudi (D.2). Kanhu died leaving behind his four sons, Jadu, Chandu(D.1), Phulrai and Dasarathi (D.3). Phulrai died leaving Kundi (D.5). Sauna died leaving behind his only son Kanhu. Jasmat died issueless. When Jadu, Sauna and Jasmat were living in joint mess, Jasmat died. Jasmat died issueless. Thereafter the suit land, which was their ancestral property, was in possession of Sauna and Jadu. The same was recorded in the name of Sauna Majhi in the hal settlement ROR, while the other lands stood recorded in the name of Jadu and Jasmat. After the death of Sauna’s son Kanhu and Jadu, the suit was jointly possessed by Jadu’s sons Kanhu, Kache, Kanda and Sauna. On the death of Sauna, Kanhu, Kache and Kanda jointly possessed the suit land. After death of Kanhu, Kache, Kanda and Phulrai and the defendants were in possession of the suit land. The further case of the defendant nos.1 to 3 is that one Barial Majhi, who was the grandfather of plaintiff no.1, happened to be the brother of Sauna Majhi. Phulrai Majhi, son of Sauna Majhi was the

¶18

¶19

‘Pradhan’ of Sikabeda mouza under whom Kuanar Majhi, the father of the plaintiff no.1 was acting as a Kothia. Kuanar Majhi with the help of the Pradhan Phulrai Majhi fraudulently got the suit land with other lands measuring Ac.15.81 dec. for Rs.6/- in an auction sale in the year 1939-40. Thereafter, Kuanar Majhi got the suit land recorded in his favour. He was not in possession of the suit land. The suit land is all along in the possession of the defendants.

¶20

04. The defendant no.4 also filed a written statement. He died issueless during pendency of the suit. G.A.L. was appointed for defendant no.5, who was a minor. A written statement was filed by him denying the assertions made in the plaint.

¶21

05. On the interse pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that plaintiffs have right, title and interest and possession over the suit land. Held so, it decreed the suit. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Anandapur in T.A. No.7 of 1980, which was eventually dismissed.

¶22

06. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the memorandum of appeal.

¶23

“2. Whether the plaintiff-respondents’ suit is barred under Section 42 of the Orissa Survey and Settlement Act ?

¶24

Whether a specific issue as to whether Sauna Majhi held the suit property jointly with the defendants-appellants’ as their ancestral property at the time of the alleged auction, is necessary ?”

¶25

¶26

07. Heard Mr. Ramakanta Mohanty, learned Senior Advocate along with Mr. Kalyan Kumar Mohapatra, learned Advocate for the appellants and Mr. Pratap Chandra Rout, learned Advocate for the respondents.

¶27

08. Mr. Mohanty, learned Senior Advocate for the appellants submitted that the record of right was published in the name of Kanhu Majhi, father of the defendant nos.1 and 3 on 11.4.1975. The suit was instituted on 26.7.1978. Under Sec.42 of the Orissa Survey and Settlement Act, the period of limitation for correction of record of right is three years. Thus the suit is barred by limitation. The courts below committed a manifest illegality in decreeing the suit.

¶28

09. Per contra, Mr. Rout, learned Advocate for the respondents submitted that the record of right neither creates title nor extinguishes title. Plaintiffs had instituted the suit for declaration of title. Both the courts concurrently held that plaintiffs have title over the same.

¶29

10. The plaintiffs assert that the property originally belonged to one Sauna Majhi. In a court auction, he purchased the property. The plaintiffs are in possession of the same and used to pay rent. The defendants tried to forcibly occupy the land on 14.7.1977. Thereafter they instituted the suit for declaration of title. Under Article 58 of the Limitation Act, the period of limitation is three years from the date of cause of action. Thus, the suit was within time. Record of right neither creates title nor extinguishes title. On a threadbare analysis of record, both oral and documentary, and pleadings, both the courts came to hold that the plaintiffs have title over the suit property. They are in possession of the same. There is no perversity or illegality in the findings of the courts below.

¶30

¶31

11. In the ultimate analysis, the appeal fails and is dismissed. There shall be no order as to costs.

¶32

………………………………. Dr. A.K. Rath,J.

¶33

Orissa High Court, Cuttack

¶34

The 8^th September, 2017/Basanta

Chandu v. Laxman

Case brief

What is this about?

What did the court decide?

Chandu v. Laxman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jagannath Vs Naru

Chitta Ranjan Rath Vs Sradhamani Mishra

Bhika Vs Purnami

Manik Vs State

Narendra Vs State

Rajanikanta Panda Vs State