Dismissed

Subash Ch.Panigrahi v. Madhusudan Prusty

Orissa HC16 Apr 2018SA/13/1989

Case brief

AI extract

What is this about?

High Court allowed the appeal against the defendant's challenge, dismissing the previous appeal. The court held that a suit for permanent injunction is maintainable when there is no valid proof of a rival claim to the property, rejecting the request to admit additional evidence as the appellants failed to substantiate their purchase. The substantial question of law was answered affirmatively.

What did the court decide?

Appeal against the defendant's challenge dismissed; no order as to costs.

Subash Ch.Panigrahi Vs Madhusudan Prusty — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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SA No.13 of 1989

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From the judgment and decree dated 20.9.1988 and 6.10.1988 respectively passed by Sri A.K. Das Pattnaik, learned Subordinate Judge, Aska in T.A. No.22 of 1985 confirming the judgment and decree dated 21.9.1985 and 04.10.1985 respectively passed by Sri S.C. Mishra, learned Munsif, Kodala in Title Suit No.49 of 1984.

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Subash Chandra Panigrahi & another …. Appellants Versus Madhusudan Prusty & another …. Respondents For Appellants … Mr. D.P. Mohanty, Adv. For Respondents … None

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing: 06.04.2018 : Date of judgment: 16.04.2018

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Dr. A.K.Rath, J This is an appeal by defendants 1 and 3 against confirming judgment.

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2. Plaintiff-respondent no.1 instituted the suit for permanent injunction. Case of the plaintiff was that Survey No.60 appertaining to C.P No.115-A/65 measuring Ac.0.11 cents of Mouza-Lunighati-Gopinathpur originally belonged to the deity Sri Sri Gopinath Mahaprabhu. On 29.1.1971, one Sridhar Panigrahy purchased the suit land from the manager of the deity. He was in possession of the land. He alienated Ac.0.01-5/8 cents measuring 5 cubits from east to west and 61 cubits from north to south out of Ac.0.11 cents to the plaintiff. On the same day, he sold 10

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cubits breadth from east to west from the eastern side to Bhagaban Prusty and 15 cubits breadth from the western side to Adrusanti Pradhan and delivered possession to the vendees. After obtaining approval from N.A.C., Polasara, he laid the foundation stone on a portion of the suit land. The remaining portion is used as kitchen garden. The settlement operation in the area, where the land falls, started in the year 1979. He filed an application before the Assistant Settlement Officer to record the land in his favour. Defendant no.1 produced a copy of the registered sale deed dated 23.2.1979 claiming that he had purchased the entire Ac.0.11 dec. of land from Sridhar. Sridhar, vendor of the plaintiff, appeared before the settlement officer and denied execution of sale deed to defendant no.1. He admitted the transfer made in favour of the plaintiff and other two transferees. The sale deed dated 23.2.1979 is a fictitious one and has been procured by impersonation. When Sridhar came to know about the forged document, he lodged an FIR before the Buguda Police Station. After investigation, the witnesses and scribe of the alleged documents had been charge sheeted. G.R Case No.372 of 1979 is sub judice. It was further pleaded that in the settlement operation, defendant no.1 had not produced the original sale deed dated 23.2.1979 for verification. In the certified copy, the vendor has been described to be 27 years of age though he was 62 years in the year 1979. After spot verification, the Assistant Settlement Officer recorded the land in favour of the plaintiff and other alienees. The order had attained finality. Defendants had no semblance of right, title and interest over the suit land.

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3. Defendants 1 and 3, who are mother and son, entered contest and filed a written statement stating, inter alia, that Sridhar was in occupation of Ac.0.11 of house site. On 23.2.1979,

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Sridhar sold the entire Ac.0.11 cent of land to defendant no.1 for a valid consideration and delivered possession. Originally the suit land was a paddy field. Gradually the same was converted to house site. He applied to the N.A.C. for approval of the house plan, but the same was not approved. He filed an application before the Director, Urban Development Department against the action of the N.A.C. In anticipation of the approval, he constructed a building on the west of an area of 10 cubits from east to west and 30 cubits from north to south.

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4. Stemming on the pleadings of the parties, learned trial court has framed six issues. Parties led evidence, both oral and documentary to substantiate their case. Learned trial court held that the admitted case is that Sridhar was the owner in possession of land admeasuring Ac.0.11 cents appertaining to Survey No.60. Defendant no.1 has failed to produce the sale deed. The plaintiff has proved the certified copy of the sale deed, vide Ext.3. The plaintiff has title over the suit land. Except rent receipts, vide Ext.A series, no other documents had been filed by defendant no.1 to prove the possession. The suit land is identifiable. Held so, it decreed the suit. Unsuccessful defendants filed T.A. No.22 of 1985 before the learned Subordinate Judge, Aska, which was eventually dismissed.

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5. The second appeal was admitted on the following substantial question of law;

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“Whether the suit purely for permanent injunction is at all maintainable in a case where there is rival claim to the property by two sets of persons, one claiming earlier in point of time than others ?”

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6. Heard Mr. D.P. Mohanty on behalf of Mr. B.H. Mohanty, learned Senior Advocate for the appellants. None appeared for the respondents.

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7. Mr. Mohanty, learned counsel for the appellants submitted that admittedly Sridhar was the original owner of the entire suit land. The sale in favour of defendant no.1 is earlier than that of the plaintiff. Since there are two rival claimants, the suit for permanent injunction is not maintainable. He further submitted that the counsel of the defendants was involved in a criminal case. Defendants could not get time to engage another lawyer. Defendants conducted the matter themselves. They were not aware of the niceties of the law. They could not exhibit the sale deed. Though an application for additional evidence had been filed, but then the same was rejected by the learned appellate court on jejune grounds. He further submitted that an application for additional evidence has been filed before this Court. The defendants have made out a case for acceptance of additional evidence. The application may be allowed and the matter remitted back to the learned trial court for de novo trial.

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8. Certified copy of the sale deed exhibited by Sridhar in favour of the plaintiff has been marked as Ext.3. Though defendants assert that Sridhar sold a portion of the suit land to them, but no sale deed had been exhibited. Defendants examined four witnesses including defendant no.1 and on their behalf, three documents had been exhibited.

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9. Misc. Case No.255 of 1989 has been filed before this Court to admit the certified copy of the sale deed dated 23.2.1979 as secondary evidence, send the specimen signature of Sridhar preserved in the office of the Sub-Registrar to show that he has in fact exhibited the document, summon and examine the scribe and attesting witnesses of the sale deed dated 23.2.1979 to prove that Sridhar had executed the document, depute a survey knowing commissioner and adduce evidence.

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10. In K.Venkataramiah v. A.Seetharma Reddy and others, AIR 1963 SC 1526, Order 41, Rule 27 C.P.C. was the subject-matter of interpretation before the apex Court. The Constitution Bench of the apex Court held that section 107 of the Code of Civil Procedure empowers the appellate court "to take additional evidence or to require such evidence to be taken", "subject to such conditions and limitations as may be prescribed". Rule 27 of Or. 41 of the Code of Civil Procedure prescribe the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is where the appellate court requires such additional evidence for itself-either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate court the court shall record the reason for its admission. It was further held that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one

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for allowing additional evidence "for any other substantial cause" under R.27 (1) (b) of the Code.

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11. In N.Kamalam (dead) and another v. Ayyasamy and another, (2001) 7 SCC 503, the apex Court held that the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal-it does not authorize any lacunae or gaps in evidence to be filled up.

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12. As held above, the defendants have examined four witnesses and on their behalf three documents had been exhibited. The provisions of Order 41 Rule 27 CPC are not intended to patch up the lacuna. Accordingly, the petition is rejected. The offshoot of the above discussion is that the plaintiff has proved title over the suit land. The defendants could not substantiate their plea of purchase. Thus there is no rival claim to the property by two set of persons. The suit for permanent injunction is maintainable. The substantial question of law is answered accordingly.

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13. A priori, the appeal fails and is dismissed. There shall be no order as to costs.

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……………………….. DR. A.K.RATH, J

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Orissa High Court, Cuttack. Dated the 16^th April, 2018/Pradeep

Subash Ch.Panigrahi v. Madhusudan Prusty

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Subash Ch.Panigrahi v. Madhusudan Prusty

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