Dismissed

Gita Mishra v. Premananda Mishra

Orissa HC19 Mar 2021RSA/318/2019

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed against the judgment and decree confirming the Plaintiff's title to suit land. The Court held that the unchallenged Consolidation Record of Right in the Plaintiff's name conclusively established title and possession, barring admission of the appeal as no substantial question of law arose.

What did the court decide?

No substantial question of law was found; appeal dismissed with no order as to costs.

Gita Mishra Vs Premananda Mishra — Partition | Orissa HC (2021)

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HIGH COURT OF ORISSA, CUTTACK

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R.S.A. NO. 318 OF 2019

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From the judgment passed by the learned District Judge, Jagatsinghpur in RFA No.39 of 2010 (89 of 2014) confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Jagatsinghpur in T.S. No. 183 of 1986.

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………

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Gita Mishra :::: Appellant. -:: VERSUS ::-

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Premananda Mishra & Others :::: Respondents.

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For Appellant :::: M/s. Bhaktahari Mohanty, Sr. Advocate, D.P.Mohanty,T.K. Mohanty, P.K. Swain, M. Pal, Advocates. For Respondents :::: ------- ………

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PRESENT :

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THE HON’BLE MR. JUSTICE D.DASH

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----------------------------------------------------------------------------------------Date of Hearing :: 15.03.2021 :: Date of Judgment :: 19.03.2021

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-----------------------------------------------------------------------------------------

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The Appellant by filing this Appeal under Section-100 of the

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Code of Civil Procedure (hereinafter called as ‘the Code’) has assailed

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the judgment and decree dated 16.07.2019 & 30.07.2019 respectively

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passed by the learned District Judge, Jagatsinghpur in RFA No.39 of 2010 (89 of 2014).

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// 2 //

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2 . By the said judgment and decree, the lower Appellate Court

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has confirmed the judgment and decree passed by the learned Civil Judge (Junior Division) in Title Suit No.183 of 1986.

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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. Case of the plaintiff is that one Jadumani Mishra was the owner of the suit land. He had sold the land in Schedule-C which is the subject matter of the suit to Ram Chandra Mishra, who happens to be the father of the Plaintiff. Having purchased the land, Ram Chandra became the owner of the property and possessed the same. He died leaving behind his son, the plaintiff as his sole heir and successor and thus he became the owner of the suit property and continued to possess the same as before. It is sated that the suit land has accordingly been recorded in the name of the Plaintiff in the Record of Right published in the Consolidation Operation.

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It is the further case of the Plaintiff that the Defendant No.1

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has somehow managed to take out the sale-deed from the wife and daughter of Jadumani Mishra who had no right, title and interest over the suit property at that point of time. It is stated that the so called sale-deed

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// 3 //

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executed by the Defendant Nos.2 & 3 on 27.06.1986 in favour of the Defendant No.1 has no value in the eye of law as the vendors i.e. the Defendant Nos.2 & 3 has no subsisting right, title, interest and possession over the land in question in question in view of the sale made by their predecessor-in-interest through whom they claim to have derived the title. The plaintiff claims that the purchasers i.e. Defendant No.1 derived no title over the suit land on the basis of said sale-deed and the land had

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been sold by Jadumani to the father of the Plaintiff for which the wife of Jadumani and her daughter had nothing to do with the same. The Defendant No.1 being armed with that sale-deed when attempted to create disturbance in the peaceful possession of the suit land by the Plaintiff; the suit with the prayer to permanently injunct the Defendants

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from coming over the land in suit and possess the same has come to be filed by the Plaintiff.

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5 . The Defendant No.1, contested the suit by filing written statement. It is stated that the Plaintiff has somehow managed to get the recording of the suit land in his name during Consolidation Operation by the order passed in Consolidation Appeal No.317 of 1992 and it is behind the back of the Defendants by practicing fraud. It is her case that original land owner Jadumani had never executed any sale-deed in favour of

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// 4 //

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Rama Chandra Mishra; the father of the Plaintiff at any point of time during his lifetime. It is also stated that Defendant No.1 had filed objection in the Consolidation Proceeding for the suit land being recorded in her name as she is the rightful owner and has purchased the property from the Defendant No.2 & 3, the legal heirs and successors-ininterest of Jadumani.

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6. The Trial Court on the above rival pleadings framing four issues has answered all those in favour of the Plaintiff. It has finally been held that when the Consolidation Record of Right in relation to the suit land stands in the name of the Plaintiff showing his right, title and interest as also the possession and when the evidence on record does not go to show that the Defendant No.1 is in possession of the property, the Plaintiff is entitled to the relief as claimed.

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7. The unsuccessful Defendant No.1 having preferred the appeal under section-96 of the Code has not been able to non-suit the Plaintiff. The lower Appellate Court in addressing the contentions raised before it and keeping in view the un-challenged Record of Right published in the Consolidation Operation, further taking into account the value of such Consolidation Record of Right in the eye of law has affirmed the findings

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// 5 //

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of the Trial Court. Consequently, the judgment and decree passed in the suit in favour of the Plaintiff have received the confirmation.

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8. Mr. D.P. Mohanty, learned counsel for the Appellant (Defendant No.1) submitted that here the Courts below have committed grave error by decreeing the suit for permanent injunction simplicitor when the Defendant No.1 has challenged the title of the Plaintiff. That according to him is the substantial question of law which finds utterance in the case for its answer. He, therefore, urged for admission of this Appeal.

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Admittedly, the Record of Right in respect of the suit land prepared in the Consolidation Operation stands in the name of the Plaintiff. Although the Defendant No.1 projects Ext.A, the registered saledeed said to have executed Defendant No.2 & 3 in her favour as the document of title; the same has not been recognized in the Consolidation Operation. Not it is shown that any further legal remedy as provided in law has been resorted to in the matter.

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The settled position of law stands that the Consolidation Record of Right holds good for the right, title and interest in respect of the property so recorded therein in favour of the holder of the said Record of Right as the Authorities under the Act have all the powers to adjudicate

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// 6 //

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and decide upon those disputed questions. This being the position, the possession in respect of the suit land also stands presumed in favour of the holder of the said Record of Right which in the given case would be taken to be with the Plaintiff. Thus it appears that within the ambit and scope of the suit for permanent injunction, the Courts below did commit no error in permanently restraining the Defendants from interfering with the possession of the Plaintiff over the suit land when the said Record of Right published in the Consolidation Operation has not faced the challenge althrough since its publication.

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Thus, the submission of the learned counsel for the Appellant as to involvement of substantial question of law for admission of the Appeal fails.

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10 . For the aforesaid discussion and reasons, the appeal stands dismissed as no such substantial questions of law is found to be surfacing in the case so as to be certified for its admission. There is however no order as to cost.

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…………………….. D. Dash, J.

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Orissa High Court, Cuttack Date 19^th March, 2021/ Narayan .

Gita Mishra v. Premananda Mishra

Case brief

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Gita Mishra v. Premananda Mishra

Case brief

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