Second Appeal dismissed. Court held appellants lacked locus to challenge a registered sale deed and failed to plead or prove adverse possession or entitlement to Section 53-A protection under the Transfer of Property Act.
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HIGH COURT OF ORISSA : CUTTACK RSA No.61 of 2005
In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 24.12.2004 and 11.01.2005 respectively passed by the learned Additional District Judge, Kendrapara in RFA No.27 of 2000 confirming the judgment and decree dated 31.07.2000 and 05.08.2000 respectively passed by the Civil Judge (J.D.), Kendrapara in T.S. No.10 of 1977.
………
Gourahari Das (Dead) and his LRs. and Bansidhar Das (Dead) and his LRs.
… Appellants.
-:: VERSUS ::-
Smt. Gavi Dibya and others … Respondents.
Advocate(s) who appeared in this case by video conferencing mode.
----------------------------------------------------------------------------------------For Appellants … M/s. R.K. Mohanty, D.K. Mohanty, A.P. Bose, S.N. Biswal, P.K. Samantaray, S. Mohanty and M.R. Dash, advocates For Respondents … M/s. P.K. Patnaik, A.K. Dwivedy, S.N. Senapati and G.M. Rath, Advocates. ………
P R E S E N T :
THE HON’BLE MR. JUSTICE D.DASH
--------------------------------------------------------------------------------------- Date of Hearing: 20.04.2021 :: Date of Judgment: 03.05.2021
Code of Civil Procedure (for short, ‘the Code’) seeks to assail the judgment and decree dated 24.12.2004 and 11.01.2005 respectively
passed by the learned Additional District Judge, Kendrapara in RFA
No.27 of 2000.
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By the same, the judgment and decree dated 31.7.200 and
Nirakar Das, Bramhananda Das and Kalpataru Das have filed the
suit as the Plaintiffs. The suit is for partition, demarcation of their share and delivery separate possession of portion of the property which is the suit property to them. Gourhari Das and Bansidhar Das are the defendants. The suit having been disposed of; the Defendants being aggrieved thereby had carried an Appeal under section 96 of the Code. The Appeal has also been dismissed. Therefore, those unsuccessful Defendants before the courts below, as the Appellants have filed this Second Appeal. During pendency of the Appeal, the Appellant Nos. 1 and 2 being dead, their legal representatives have come to be substituted and are now pursuing the Appeal. It may be stated here that Plaintiff Nirakar and Bramhananda having died during pendency of the First Appeal, their legal representatives have been brought on record. Among the parties Kalpataru, the Plaintiff No. 3 is living and thus in this Appeal stands arraigned as the Respondent No.11.
arraigned in the Trial Court.
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Nos. 1 and 2 and rest Ac.0.06 dec. to the southern side with the house standing thereon remained his possession. It is stated that after the death of Kinu, his wife Kanchan having succeded to his property became the absolute owner and remained in possession of that Ac.0.06 dec. of land with the house standing thereon. On 8.12.76 Kanchan Dibya, Defendant No. 3 sold the land with the house to the Plaintiffs for consideration of Rs.1000/- by executing the sale deed which was duly registered and gave delivery of possession of the same to them. Plaintiffs thus continued to possess the said land, when Defendant Nos. 1 and 2 remained in possession of Ac.0.004 dec. out of the said plot. It is stated that Defendant Nos. 1 and 2 created disturbance in the enjoyment and possession of the purchase property by the Plaintiffs. So request was made for partition by way of demarcation to put an end to the dispute permanently. That being declined, the suit was filed.
the plaint averments have stated that Kanchan Dibya wife of Kinu, the original owner of the land had deserted Kinu shortly after i.e. about six
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months of marriage as Kinu was suffering from leprosy. It is stated that Kanchan was separately leading life on her own being aloof from all such affairs of Kinu. They state that Kinu transferred Ac.0.04 dec. of land to them and subsequently had entered into an agreement for sale of the remaining Ac.0.06 dec. with the house standing thereon for consideration of Rs.500/-. He in two parts and stages had thus delivered possession of the entire suit plot measuring Ac.0.10 dec. to them. They claim to be in possession of that land measuring Ac.0.06 dec. openly, peacefully and without interpretation to the knowledge of the true owner since the date of delivery of possession pursuant to the agreement for sale executed by Kinu. They state that Record of Rights prepared in current settlement stands in their favour. However, one Biswanath has managed to procure a fraudulent sale deed from Kanchan, wife of Kinu when Kanchan had no subsisting title and alienable right over the land. So it is said that by such sale deed dated 8.12.76, the title in respect of the suit land has not changed the hands and the Plaintiffs have no right, title and interest over the suit land and nor they are in possession or the right to possess on the basis of so called transaction.
as many as ten issues. On analysis of evidence, at the first round, the Trial Court had recorded the findings that Defendant Nos.1 and 2 have acquired title by adverse possession in respect of the suit land which is
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claimed by the Plaintiffs to have been purchased by registered sale deed dated 8.12.1976. Consequentially, the sale deed dated 8.12.1976 was held to be of no value in the eye of law as the vendor-Defendant No.3 had no alienable right over the property in question at the time of the sale said to have been made by her.
The unsuccessful Plaintiffs had preferred the First Appeal. The First Appellate court, on that round, confirmed the judgment and decree passed by the Trial Court. The Plaintiffs then carried the matter to this Court by preferring Second Appeal. In Second Appeal No.11 of 1985, this Court set aside the findings recorded by the Courts below and holding the judgments and decrees passed in the Suit filed by the Plaintiffs as unsustainable in the eye of law, remanded the matter to the Trial Court with certain observations. Being so directed to hear the suit and dispose of the same afresh in accordance with law further keeping in view the observations; the Trial Court then decreed the Suit holding the Defendants to be having no locus to impeach the registered sale deed (Ext.1) standing in favour of the Plaintiffs. It next found that the evidence on record do not justify for a finding that the Defendants have acquired any right over the property in question. So, the Plaintiffs’ prayer for division of entire property in two parts one measuring Ac.0.04 decimals and other measuring Ac.0.06 decimals in terms of respective registered sale deeds was allowed with direction for
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demarcation of the respect lands and delivery of possession of the suit land to the Plaintiffs. The Trial Court also restrained the Defendants from creating any disturbances thereto in the possession of the Plaintiffs on their purchased land as demarcated. The First Appellate Court being moved by the unsuccessful Defendants, has yielded no result.
the Courts below are not right in refusing to adjudicate upon the plea of adverse possession set up by the Defendant Nos.1 and 2. According to her, that approach is founded upon an erroneous view that said question has been concluded by this Court while disposing S.A. No.11 of 1985. She submitted that this court having made an open remand of the Suit to the Trial Court, before the Courts below there was no impediment for answering all the framed issues in favour of the Defendants. She further submitted that the Courts below have lost sight of the provision of Section-53-A of the Transfer of Property Act and have erred in law in finally depriving the Defendants of the protection as to their possession of the suit land.
It was next submitted that the view taken by the Courts below that
the Defendant Nos.1 and 2 have no locus to question the registered sale deed dated 8.12.1976 said to have been executed by Defendant No.3 in favour of the Plaintiffs is wholly erroneous. She submitted that the
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above are the substantial questions of law involved in this case for being answered in this Appeal.
Learned counsel entering appearance on behalf of the Respondent
Nos. 1 to 5 (Plaintiffs) in assisting the Court in the matter of hearing on admission submitted all in favour of the judgments rendered by the Courts below after remand by order of this Court passed in S.A. No.11 of 1985.
Court in S.A. No.11 of 1985.
To start with, let us examine the question of locus of Defendant
Nos.1 and 2 in impeaching the registered sale deed dated 8.12.1976 executed by Defendant No.3 in favour of the Plaintiffs in respect of the land measuring Ac.0.06 decimals that it is of no value in the eye of law.
The Defendant Nos.1 and 2 are not parties to the transaction nor they have acquired the said property or succeeded to the same in any manner
at any point of time. The Defendant No.3 being the vendor under the sale deed did not contest the Suit. The Defendant Nos.1 and 2 being armed with an unregistered agreement dated 03.12.1964 claimed to be having the interest over the said property. Although it is said that the
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agreement was executed by Kinu, they have never taken any such step
for completion of the transaction pursuant to that agreement. The evidence on that score is lacking. The Courts below have concurrently negated the claim of acquisition of title over the suit land by the Defendant Nos.1 and 2. The Defendant Nos. 1 and 2 have not so pleaded in clear terms so as to seek the protection as to their possession in consonance with the provision of section 53-A of the Transfer of Property Act. Not only that the pleadings are deficient on that score but also there is absolutely no satisfactory evidence on record for availing
the said protection. The essential ingredients required pleaded and established through satisfactory evidence for the grant of relief as to the protection under said section are lacking in the case at hand and attempt to build up such a case at this stage of Second Appeal thus fails. Under the circumstance, when the Plaintiffs are found to be having title over the suit land and none-else such as their vendor or successor/ in interest
is coming to challenge the same, this Court finds that no substantial question of law is involved in the case meriting admission of this Appeal. The submission of the learned counsel for the Appellants falls flat.
As the restrictions due to resurgence of COVID-19 situation are
continuing, learned counsel for the parties may utilize a printout of the
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order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No. 4587 dated 25th March, 2020 as modified by Court’s Notice No. 4798 dated 15th April, 2021.
…………………..
D. Dash, J.
Orissa High Court, Cuttack
Dated the 3 rd May, 2021/ Aks
Gourahari Das (Dead) and his LRs. and Bansidhar Das (Dead) and his LRs.
Smt. Gavi Dibya and others
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
