Dismissed

Pravakar Sahu v. Pruthiraj Pattanayak

Orissa HC26 Oct 2021RSA/318/2018

Case brief

AI extract

What is this about?

In a second appeal regarding rival title claims over suit land, the High Court of Orissa dismissed the appeal. The Court rejected arguments that the suit was barred by limitation or that evidence was improperly admitted. It upheld the lower courts' decision declaring title and interest in favour of the Plaintiffs.

What did the court decide?

The appeal was dismissed; no order as to cost.

Pravakar Sahu Vs Pruthiraj Pattanayak — Property and Title | Orissa HC (2021)

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HIGH COURT OF ORISSA : CUTTACK RSA NO.318 OF 2018

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In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 08.05.2018 and 19.05.2018 respectively passed by the learned Additional District Judge, Balasore in RFA No.57/46 of 2010-2006 in dismissing the Appeal and thereby confirming the judgment and decree dated 06.03.2006 and 10.03.2006 passed by the learned Civil Judge (Sr. Division), Balasore in C.S. No.16 of 2004.

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………

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Pravakar Sahu & Another :::: Appellants. -:: VERSUS ::Pruthiviraj Pattnayak & Others :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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-----------------------------------------------------------------------------------------
For Appellants … M/s. D.P. Sahoo, Advocate,
M/s. Sailabala Jena, S. Mohanty,
T.P. Tripathy, Advocates
M/s. S.N. Mishra, B. Dash,
B.N. Mishra, K. Behera, Adv.
M/s. B.P. Tripathy, S. Ch. Behera,
P.R. Mishra, S. Acharya, Advocates.
For Respondents … --- --- --- ---
------

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P R E S E N T :

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THE HON’BLE MR. JUSTICE D.DASH

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--------------------------------------------------------------------------------------- Date of Hearing: 20.09.2021 :: Date of Judgment:26.10.2021 ---------------------------------------------------------------------------------------

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D.Dash,J . The Appellants, by filing this Appeal, under Section-100 of the

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Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed the judgment and decree dated 08.05.2018 and 19.05.2018 respectively

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passed by the learned Additional District Judge, Balasore in RFA No.57/46 of 2010-2006 in dismissing the Appeal and thereby confirming the judgment and decree dated 06.03.2006 and 10.03.2006 respectively passed by the learned Civil Judge (Sr. Division), Balasore in C.S. No.16 of 2004.

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2 . The Respondents as the Plaintiffs have filed the suit for declaration of right, title and interest over the suit land and issuance of permanent injunction by restraining the Appellants-Defendants from interfering in their peaceful possession over the said land.

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The Suit being decreed and the Defendants having suffered thereby

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had carried an Appeal under Section-96 of the Code. On hearing since said Appeal has been dismissed; they have approached this Court in carrying the Second Appeal.

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3 . For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

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4. Plaintiff’s Case :-

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One Bimala Damodar Raj being the owner had sold Ac.0.0183/4

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decimals of land to Amulya Ratan, Ram Ratan and Prema Ratan Das. In doing so, he has executed the registered sale-deed on 11.07.1977. The

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three purchasers as named possessed the suit land with other lands in total

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to the extent of Ac.0.027 decimals. Then, two years after their purchase,

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Page 2 of 12

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they sold the land to one Indumati Das under registered sale-deed dated 26.09.1979. Said Indumati having possessed the land measuring Ac.0.018 decimals which she had purchased right from the end of 1979; in the mid of the year, 1993, sold the land admeasuring Ac.0.018 decimals to the Plaintiff Nos.1 and 2 and the rest of Ac.0.009 decimals of land to the Plaintiff No.3. It is stated that the Defendants have somehow been able to obtain the registered sale-deed from Ram Ratan and Prem Ratan, the two of the vendors of Indumati on 26.10.1987. This transaction as also the registered sale-deed so obtained is attacked as invalid and inoperative and it is said that althrough despite said created and so obtained sale-deed, the Plaintiff Nos.1 and 2 as also Plaintiff No.3 have been in possession of their respective portions of land as owners thereof. During Raghupati Major Settlement, at the preliminary stage Not Final Record of Right had been issued in favour of the Plaintiffs. But thereafter at the final stage, the Defendants having gained over the Settlement Authority could manage in getting their names included with the Plaintiff No.1 and 2 as joint tenants in the Final Record of Right in respect of schedule-A land only. The Record of Right in respect of schedule –B land however was published showing the name of Plaintiff No.3 as the sole tenant. It is stated that the property described in schedule-B of the plaint stands under the M.S.

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Khata No.88 and comprises of Plot No.297 measuring Ac.0.06 decimals which corresponds to RMS Khata No.144, Plot No.125, measuring

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Page 3 of 12

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Ac.0.06 decimals as against the total of Ac.0.012 decimals which is the

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purchased property of Plaintiff No.3. Similarly, ‘A’ schedule property under M.S. Khata No.79, Plot No.300 corresponds to RMS Khata No.121, Plot No.129 and the same measures Ac.0.06 decimals. That schedule –A

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property corresponds to M.S. Khata No.114, Plot No.125 in respect to land measuring Ac.0.06decimals out of Ac.0.012 decimals which is the purchased property of the Plaintiff No.1 and 2. Thus the Plaintiffs claim that they are the owners in possession of schedule-A property and Plaintiff No.3 is the owner in possession of schedule-B property. Accordingly, in this suit, they have sought for the reliefs of declaration of their right, title and interest and injunction.

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5. Case of the Defendants :-

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The Defendants purchased Ac.0.40¾ decimals including the

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Schedule-A & B lands from Ram Ratan and Prem Ratan. Said Ram Ratan and Prem Ratan during their minority being represented by their father guardian Pulin Behari had purchased the property from Damodar Raj and others. In the Raghupati Settlement during the initial stage, when their claim was disallowed, they had filed the Appeal and finally the land under RMS Khata No.114 has been recorded jointly in their name and the Plaintiff Nos.1 and 2.

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6 . Given the rival pleadings, the Trial Court having framed in total eight issues has proceeded to answer those by scrutinizing the evidence

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Page 4 of 12

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both oral and documentary on record in the backdrop of the rival case in support of the respective claims.

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The Trial Court’s finding on Issue Nos. 4 & 5 have been in favour of the Plaintiffs that they have got the right, title and interest over the property in question on the strength of their purchase as the owners and that they are in possession of the same. Coming to the other two issues; relating to the one of which is specifically on the claim of the Plaintiff Nos. 3, the same has also been answered in the affirmative. Accordingly, the Plaintiffs have been successful in getting the Suit decreed in full.

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7 . Grieved by the result of the suit, causing sufferance, the Defendants preferred the First Appeal. The lower Appellate Court addressing the rival contentions raised before it, having gone to judge the sustainability of the findings on all those four issues after completion of the exercise of appreciation of evidence at its level has ultimately arrived at the same answers as returned by the Trial Court. The Defendants contention as also their case and claim having thus been repelled, the result of the Suit in the Trial Court in passing the decree in favour of the Plaintiffs has withstood the tests. Hence, the present Appeal.

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8 . Learned counsel for the Appellants (Defendants) submitted that the documents produced by the Plaintiffs having not been duly proved and admitted in evidence as required under the law, those have been erroneously marked as Exts. 2 to 12 and in that view of the matter, said

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Exts. 2 to 12 are not to be looked into at all for any purpose in the present suit and for that the claim of the Plaintiffs based on the documents

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marked Exts.2 to 12 ought to have been disallowed. He submitted that the courts below having lost sight of above important aspect touching the root of the matter have committed grave error by not holding that the right, title, interest as also possession over the suit land of the Plaintiffs has not been established. He also submitted that on a plain reading of the averments of the plaint, when it reveals that the suit for the reliefs claimed is barred by limitation, the Courts below ought to have dismissed the suit on that score..

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In order to highlight the first limb of submission, he contended that

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the documentary evidence marked Exts.2 to 12 from the side of the Plaintiffs are inadmissible in law as none of the Plaintiffs witness has come to state in getting those admitted in evidence. It was next submitted that the Courts below under the circumstance ought not to have looked into those documents Exts.2 to 12 for any purpose whatsoever in support of the Plaintiffs case as projected. According to him, these are the substantial questions of law which stand to be answered here in this Appeal. He therefore, urged for admission of this Appeal.

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9 . Keeping in view the submissions made, I have carefully gone

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through the judgments passed by the Trial Court as well as the Appellate

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Page 6 of 12

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Court as also the deposition of the witnesses examined by the parties as placed on record.

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In the backdrop of above, the exercise of search as to if the substantial questions of law as contended by the learned counsel for the Appellants are so arising for being answered hereby has now to commence.

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10 . As against the case of the Plaintiffs as stated in the foregoing paragraph as also the case advanced by the Defendants, the parties have pilotted evidence at length. From the side of the Plaintiffs, while two witnesses have been examined, the Defendants have also examined two from their side. Out of the two, from each side, one is the independent witness and the other one is one among the respective parties. The oral evidence on record from the side of the Plaintiffs thus having come from the lips of two witnesses, and so also from the two examined from the side of the Defendants; the documentary evidence let in by them are voluminous. When the Plaintiffs have admitted 16 (sixteen) nos. of documents marked Exts.1 to 16; the Defendants do not also lag behind. They have proved 12 (twelve) nos. of documents marked as Exts.A to L. Both sides having filed the affidavits as required under Order-18 Rule-4 of the Code as to the statement of their respective witnesses’ in-chief,

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cross-examination has been made by the adversary.

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Page 7 of 12

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On going through the depositions, it is seen that they had referred

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to the documents and the parties were well aware of all those which had been filed and had full knowledge thereof as none has complained to have not received the respective list of documents beforehand. The Plaintiffs witnesses have been cross-examined from the side of the Defendants. This contention that the documents admitted in evidence and marked Exts.1 to 16 from the side of the Plaintiffs are not in conformity with the law has neither been raised at the time of argument before the Trial Court nor has been so contended before the First Appellate Court in seisin of continuation of the Suit having all the power as that of the Trial Court. In such situation, for the first time consideration on this aspect at the stage of Second Appeal, in my considered view, is permissible only when grave prejudice is shown to have been caused thereby to the Defendants or it is shown that there has been flagrant violation of justice.

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In the case at hand as it appears even when the Plaintiffs witnesses

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have been cross-examined at length from the side of the Defendants, this aspect was not put to them directly nor even been hinted at them indirectly, more particularly at the Plaintiff No.3 when he had been on the witness box as P.W.1.

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At any time before the Trial Court no such objection has been given

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nor it was argued. Thus, even though it is said that the legal procedure has

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been deviated at some point of time, the Defendants appear to have

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Page 8 of 12

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waived the objection on that score from that stage of hearing and onwards. For that it has to be deemed to have been so done as by that they were not prejudiced. The first limb of submissions of the learned counsel for the Appellants thus is found to be of no force.

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11 . As regards the contention in relation to the Suit being barred by limitation, it is seen that the Defendants while contesting the suit and pursuing the Appeal have not specifically raised this issue. It was submitted by the learned counsel for the Appellants that even if the party does not raise this question of limitation standing on the way of the Suit or proceeding, keeping in view the factual settings as also the reliefs claimed, the Courts were under legal obligation to rule over the same.

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12. In addressing the above contention above, first of all the Memorandum of Appeal filed before this Court is required to be seen to ascertain as to for what reason and why it is claimed that the Suit is barred by limitation. The said aspect is found to have been highlighted at paragraph-4 of the Memorandum of Appeal.

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It is thus reproduced hereunder:-

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“4.. That, the Defendants/Appellants contested the aforesaid suit for filing their joint written statement inter alia denying the averments made in the plaint. In the written statement the present Appellants being the Defendants in the Court below have stated that they purchased Ac.0.40 ¾ dec.

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Page 9 of 12

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of land including the suit land from Rama Ratan and Prema Ratan, sons of Pulin Bihari Das, who purchased the suit land from Damodar Raj. During Raghupati Major Settlement operation as the Settlement Authority disallowed claim of the defendants, they preferred Settlement Appeal No.192/94 &194/94. After hearing both sides final RMS ROR in respect of Khata No.114 was published in the names of defendants but RMS Khata No.121 was wrongly published in the joint names of the Plaintiffs and Defendants. The Defendants/ Appellants further pleaded that they are in possession over the suit land since the date of their purchase and therefore prayed for dismissal of the suit with cost as the same is also barred by limitation .”

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13 . It has been stated that the Defendants always claimed to have purchased Ac.40.3/4 decimals of land including the suit land from Ram Ratan and Prem Ratan sons of Pulin Behari and the vendors to have acquired the suit land on the strength of purchase from one Damodar Raj. In Raghupati Major Settlement Operation at the initial stage, the claim of the Defendants was disallowed and upon Appeal, it has been allowed in part. That is in so far as the land under Khata No.114, in the schedule-A, the record of right has been issued showing the Plaintiff Nos.1 and 2 and Defendants as joint tenants whereas in respect of schedule-‘B’ the record of right stands in the name of Plaintiff No.3. The lands under both the schedules are the suit land. When the Plaintiffs claim their right, title and interest over the lands under both the Khatas being described in Schedule-

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Page 10 of 12

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A & B of the plaint; the Defendants also so advance their rival claim that

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they have the right, title and interest and possession over the suit land. The Suit being one for a decision as to the rival claim of title, non-filing of any Suit or proceeding in challenging the record of rights published in the settlement operation within this period stipulated under the Orissa Survey and Settlement Act as also absence of any specific prayer on that score of correction of record of right are of no such legal significance falling fatal to the Suit. Despite the Record of Rights standing for quite some period, the suit based on title and possession is not barred by limitation.

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It has been stated in the paragraph-4 in an evasive manner that since the Defendants have claimed the possession over the suit land since the date of their purchase, the suit ought to have been held to be barred by limitation. The Courts below have decided the right, title and interest over the suit land in favour of the Plaintiffs. In that view of the matter and in the absence of any specific case being projected by the Defendants even in the alternative as to their perfection of title over the same by adverse possession, the submission of the learned counsel for the Appellants that the Courts below ought to have held the Suit as barred by limitation squarely fails.

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Coming to examine the sustainability of the finding on the right, title and interest over the suit land, the lower Appellate Court has dealt the

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Page 11 of 12

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matter at paragraph-11 of its judgment. The discussion of evidence for the purpose appears to be vivid.

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When admittedly that father guardian Pulin Behari had purchased the land in favour of their minor sons by spending funds from his own purse and when as provided under Section-60 of the Limitation Act, none of the sons has filed any suit for declaration that the sale made by their father without permission as required under the provision of Section-8(1) of the Hindu Minority and Guardianship Act is void or that they have avoided the sale by exhibiting positive conduct in support of avoidance of the transaction that sale of the suit land by Ram Ratan, Amulya Ratan and Prem Ratan through their father guardian to meet their educational expenses and for purchasing other lands has been held as valid in holding the field. The view taken by the lower Appellate Court is found to be well in order and thus there also surfaces no such substantial question of law touching that aspect.

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In the wake of aforesaid, the judgments and decrees passed by the

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Courts below hereby receive the seal of approval.

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14 . Resultantly, the Appeal stands dismissed. No order as to cost.

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(D. Dash), Judge.

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Narayan

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Pravakar Sahu v. Pruthiraj Pattanayak

Case brief

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Pravakar Sahu v. Pruthiraj Pattanayak

Case brief

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