Dismissed

Smt.Mukta v. Chakradhar

Orissa HC18 Dec 2023SA/78/1992

Case brief

AI extract

What is this about?

In an appeal against a lower appellate court decree, the High Court upheld the title of the plaintiff over suit land. The Court found a cause of action existed to institute the suit regarding title, dismissing the appellant's contentions about lack of evidence on this issue and insufficient examination of cross-objections.

What did the court decide?

Impugned judgment and decree in the Second Appeal were upheld and the appeal was dismissed.

Smt.Mukta Vs Chakradhar — Partition | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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S.A No. 78 of 1992

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Smt. Mukta Sahu (since dead) By …. Appellants LRs Baishnab Charan Sahoo & others

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Mr. Ramakanta Mohanty, Senior Advocate

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-Versus-

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Chakradhar Parhy (since dead) By …. LRs Santi Parhy & others

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Respondents

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Mr. T.K. Sahoo, Advocate

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CORAM:

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JUSTICE R.K. PATTANAIK

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DATE OF JUDGMENT:18.12.2023

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1 . Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is filed by the appellant succeeded by the LRs challenging the impugned judgment promulgated in Title Appeal No. 26/251 of 1987 in Title Appeal No.26/251 of 1987 in challenging the impugned judgment and decree dated 13^th January, 1992, whereby, the decision of the learned Additional Munsif, Bhadrak in T.S. No.66/11 of 1985-I/11 of 1986-I was set aside to the extent indicated and for having decreed the suit on the grounds inter alia that there has been no cause of action to maintain the same.

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2 . The predecessor-in-interest of the respondents instituted the suit seeking declaration of right, title and interest and confirmation of possession in his favour over and in respect of the suit land and also to permanently injunct the defendants from entering into or causing any disturbance in peaceful possession of the same and in case found to have been dispossessed to recover such possession and to restore it through process of law. The said suit was contested by the defendants, the predecessor-in-interest of the

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S.A. No.78 of 1992 Page 1 of 5

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appellants. After considering the evidence on record with reference to the issues framed, learned Additional Munsif, Bhadrak reached at a conclusion that the Settlement Authority was at fault to record the name of the defendant in MS RoR and to the said extent, Ext.2 was wrong. Though the issues were answered in favour of the plaintiff, the suit was dismissed for want of cause of action. The said decision in the suit was challenged in Title Appeal No. 26/251 of 1987 and the Appeal was allowed with the decree in favour of the plaintiff with the conclusion that the learned Trial Court was not correct to hold that there was no cause of action to institute the suit. Against the aforesaid decision of learned Lower Appellate Court, the second appeal is filed by the defendant succeeded by the LRs.

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3 . This Court by order dated 23^rd April 1992 formulated the following substantial question of law such as;

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(i)Whether the learned Lower Appellate Court was justified in not considering the merits of cross-objection filed by the original appellant against the findings vis-à-vis issue Nos.2, 3, 4, 6 & 7?

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4 . Heard Mr. Mohanty, learned Senior Advocate appearing for the appellant and Mr. Sahoo learned counsel appearing for the respondent.

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5 . Learned Trial Court with the pleadings on record, framed as many as, eight issues to determine, whether, the plaintiff is entitled to right, title and interest over the suit land with a relief of permanent injunction and if the defendant with entry in MS RoR to be wrong in view of the counter claim advanced. All the issues after being answered, it was concluded that the defendant is not entitled to declare MS RoR i.e. Ext.2 as erroneous to the extent including the name of the plaintiff therein, however, dismissed the suit due to want of cause of action. In fact, the

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S.A. No.78 of 1992 Page 2 of 5

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learned Trial Court discussed the entire evidence adduced by both the sides. Though the suit was held to be maintainable but was dismissed for absence of cause of action. The counter claim of the defendant was also dismissed. The said finding on cause of action for the suit was interfered with by the learned Lower Appellate Court. It is claimed that the counter claim of the defendant was not examined by the learned Lower Appellate Court while upholding the findings on the issues in favour of the plaintiff. As stated before, the suit stands decreed by virtue of the impugned judgment in appeal.

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6 . Mr. Mohanty, learned Senior Advocate appearing for the appellants submits that the learned Lower Appellate Court erred in law in having decreed the suit despite absence of cause of action when none of the parties led evidence in that regard. It is also submitted that the cross-objection of the defendant was not examined while disposing of the appeal, hence therefore, the impugned judgment in Title Suit No. T.S. No.66/11 of 1985-I/11 of 1986-I deserves to be set aside in the interest of justice with a remand for rehearing and its disposal of according to law.

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7 . Mr. Sahoo, learned counsel for the respondent on the other hand submits that the cross-objection of the defendant was dismissed with the result that the suit stands decreed. It is further submitted that the plaintiff to be the rightful owner in respect of the schedule land, which has been held by both the learned courts below but unfortunately, learned Trial Court on an erroneous findings held that there not to be any cause of action to institute the suit. It is contended that in the year 1945, the father of the respondent had approached the local Zamindar to lease out the land in question and in the same year, the Ex-Landlord leased it out in favour of the father of the respondent and in that connection, after some time, a lease deed was executed and from

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S.A. No.78 of 1992 Page 3 of 5

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the date of said lease, the respondent to be in possession. It is claimed that the name of the original appellant was wrongly included in the MS RoR, whereas, the suit land to be a Stitiban property of the respondent, hence, it is contended that the decision of the learned Lower Appellate Court since does not suffer for any illegal infirmity, the impugned judgment ought not to be disturbed.

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8 . The plaintiff examined himself as P.W.1 and deposed that he obtained the suit land by way of a lease and later through a sale deed. Notwithstanding the fact that a copy of the said deed was produced, it has been held that the plaintiff on the strength of Ext.1 has the title over the suit land and also confirmed the possession accepting the rent receipt i.e. Ext.4 though contention was raised that MS RoR i.e. Ext.2 was published on 23^rd July, 1979 leaving no scope for issuance of such a receipt. In other words, the plaintiff’s possession was accepted by learned Trial Court considering the oral and documentary evidence on record. In so far as the counter claim of the defendant is concerned which was based on Ext.A was disbelieved with a finding that recording as per Ext.2, it is not sustainable to the extent as there was no basis for the Settlement Authority to record his name along with the plaintiff. The entire of the evidence has been discussed by learned Trial Court and rejected the plea of the defendant advanced of the basis of a Hatapatta i.e. Ext.A. Interestingly, despite the findings in favour of the plaintiff, the suit was dismissed as no cause of action was found to institute the same.

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9 . In so far as the decision of the learned Lower Appellate Court is concerned, the cross-objection has been dealt with and dismissed discussing the relevant evidence on record. The genuineness of Ext.A was examined by learned Lower Appellate Court and it was held that the same is a spurious document. The possession of the

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S.A. No.78 of 1992 Page 4 of 5

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suit land has already been held in favour of the plaintiff. The claim of the defendant about the renovation of the tank though revealed by the defendant but it was not accepted as against the title of the plaintiff under Ext.1. The Court finds that learned Lower Appellate Court since was in agreement with the decision of the learned Trial court and considering the entire evidence on counter claim as well upheld the title of the plaintiff, no ground is really made out by the appellant to interfere with the same. As to the absence of cause of action, it was duly examined by the learned Lower Appellate Court with reference to Order 7 Rule 7 C.P.C. and concluded that the conclusion of the learned Trial court to be erroneous. Since the name of the defendant was inserted in MS RoR and the exclusive title of the plaintiff was in question, it was rightly held that there was a cause of action to institute the suit. A decision reported in 1971 Vol.2(1) C.W.R 831 has been referred to by learned Lower Appellate Court. Even though, the aforesaid citation does not directly apply to the case at hand, there is no escape from the conclusion that a cause of existed to maintain the suit. Consequently, the substantial question of law is answered.

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10 . Hence, it is ordered.

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11 . In the result, the appeal is dismissed, however, in the circumstances, without any order as to costs.

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Balaram

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S.A. No.78 of 1992 Page 5 of 5

Smt.Mukta v. Chakradhar

Case brief

What is this about?

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Smt.Mukta v. Chakradhar

Case brief

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What did the court decide?

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