Dismissed

Basudeb Panda v. Harekrushna Mishra

Orissa HC15 Feb 2024RSA/107/2016

Case brief

AI extract

What is this about?

This High Court dismissed an appeal by a plaintiff who sought only a permanent injunction without praying for a declaration of title. The Court held that such a suit is not maintainable where title is clouded due to rival purchase claims from brothers' shares, and the plaintiff failed to establish lawful possession at the time of suit.

What did the court decide?

No relief; appeal dismissed, no order as to cost.

Basudeb Panda Vs Harekrushna Mishra — Specific Performance | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A. NO.107 OF 2016

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In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 04.12.2015 and 11.12.2015 respectively passed by the learned District Judge, Bhadrak in R.F.A. No.88 of 2012 confirming the judgment and decree dated 28.09.2012 and 12.10.2012 respectively passed by the learned Civil Judge (Junior Division), Bhadrak in Civil Suit No.184 of 2009.

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----
Basudeb Panda …. Appellant
-versus-
Harekrushna Mishra & Others …. Respondents

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Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ================================================ For Appellant - Mr. Sanatan Das, Advocate. ------------------------- For Respondents -

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CORAM:

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MR. JUSTICE D.DASH Date of Hearing : 08.02.2024 :: Date of Judgment:15.02.2024

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D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 04.12.2015 and

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RSA No.107 of 2016

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11.12.2015 respectively passed by the learned Additional District Judge, Bhubaneswar in R.F.A. No.88 of 2012.

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The Appellant as the Plaintiff had filed the suit (Civil Suit No.184 of 2009 in the Court of Civil Judge (Junior Division), Bhadrak seeking permanent injunction as against the Respondents being arraigned as the Defendants therein. The suit having been dismissed by the Trial Court; this Appellant as the unsuccessful Plaintiff had carried the Appeal under section-96 of the Code. The Appeal has also been dismissed.

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2 . 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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3. The Plaintiff’s case is that one Paramananda Pani had two sons namely, Bhagirathi and Laxmidhar. The ancestral properties of the family had been partitioned between the two brothers namely, Bhagirathi and Laxmidhar. Accordingly, the suit property had been allotted to the share of Laxmidhar and he was in possession of the same. Laxmidhar sold the suit property to the Plaintiff by registered sale deed bearing no.3380 for valuable consideration of Rs.1300/-. The Plaintiff claims to be in peaceful possession of the suit land since the date of his purchase. It is stated that he has been cultivating the suit land raising different varieties of crops. The Plaintiff then filed

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RSA No.107 of 2016

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mutation case before the Tahasildar, Dhamnagar, which came to be numbered as Mutation Case No.1471 of 2003. The suit land stood mutated in the name of the Plaintiff by order dated 10.04.2003. Accordingly mutated the ROR in respect of the suit land was issued in the name of the Plaintiff.

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The Defendant being complete stranger to the suit land was having eye over the property and he had wanted to purchase the same from Laxmidhar. As that attempt failed, on 10.08.2009, the Defendants threatened to forcibly dispossess the Plaintiff from the suit land. The Plaintiff therefore finding no other alternative was compelled to file the suit.

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4 . The Defendants in their written statement whiling traversing the plaint averments pleaded that the said land belongs to Paramananda Pani. It is however stated that the suit property was exclusively possessed by Bhagirathi. Accordingly, son of Bhagirathi namely, Purusottam sold the suit property to the father of the Defendants by registered sale-deed dated 11.02.1983. In that sale, the schedule of the purchased property was wrongly indicated. So, again Purusottam sold the suit property to the father of the Defendants by executing registered sale deed on 21.03.1983 for a consideration of Rs.1500/- and delivered possession of the suit property to the father of the Defendants. The Defendants since then are in possession over

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RSA No.107 of 2016

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the suit property. It is stated that the father of the Defendants having purchased the suit property had sought for mutation of the said land in his name in Mutation Case No.580 of 2006. During that mutation proceeding, it came to light that the Plaintiff had already mutated the suit land in his name as per order passed in Mutation Case no.1471 of 2003. In that situation, the mutation case filed by the father of the Defendants did not find favour with. The Defendants preferred two mutation appeals. The Appellate Authority disposed of both the Appeals directing the Tahasildar to record the suit land in the name of the Defendants. As per the order of the Appellate Authority, the suit land was finally recorded in the name of the Defendants. 5 . The Trial Court with the above rival pleadings framed as many as five (5) issues. Rightly taking up two crucial issues as regards the entitlement of the Plaintiff to be principal relief as against the Defendants in respect of the suit land; upon examination of the evidence in the backdrop of the rival pleadings, the answers have been returned against the Plaintiff. These answers have practically led the Trial Court to dismiss the suit.

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The Plaintiff thus being non-suited having carried the First Appeal has also lost therein. The First Appellate Court addressing the contentions raised by the Plaintiff for negating the findings of the Trial Court, on an independent examination

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RSA No.107 of 2016

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of evidence at its level; keeping in view the rival pleadings has found no justifiable reason to disturb the findings of the Trial Court.

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6 . Mr. Sanatan Das, learned Counsel for the Appellant submitted that the Courts below are not right in arriving at a conclusion that in the facts and circumstances emanating from the pleadings and evidence, the suit for injunction simplicitor is not maintainable without seeking declaration of title. He submitted that when the title in respect of the suit land has already been perpetuated with the Plaintiff by virtue of the registered sale-deed No.3380 followed by mutation, the Courts below ought not to have held the suit for permanent injunction simplicitor as not maintainable. He next submitted that the title coupled with the possession in respect of the suit land when very much rest with the Plaintiff, the view taken by the Courts below is erroneous. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.

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7 . Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them.

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8 . The suit at the instance of the Plaintiff being with the prayer for permanent injunction; the Plaintiff is under the legal

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RSA No.107 of 2016

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obligation to establish that on the date of institution of the suit, he has been in lawful/ settled possession of the suit property. The Plaintiff herein claims to have purchased the suit from Laxmidhar Pani; whereas the Defendants claim to be the title holder of the suit land having purchased the same from Purusottam Pani, the son of Bhagirathi, who happens to be the other brother of Laxmidhar Pani.

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The Defendants case is that there was a bilateral mistake in their sale-deed in respect of the description of the property, for which by a supplementary measure, another registered sale deed has been executed by Paramananda Pani, after that bilateral mistake was detected. So, when they stake their claim over the suit property as the purchaser of the same at a prior point of time than that of the purchase of the Plaintiff, when the Plaintiff’s claims that the suit land was in the share of Laxmidhar Pani, the Defendants claim that the suit land was in the share of Bhagirathi Pani, the brother of Laxmidhar. So, the crucial issue is whether there was a partition of the property between Laxmidhar and Bhagirathi; if at all that, whether the suit property had fallen to the share of Laxmidhar or to the share of Bhagirathi. When the Plaintiff claims to have got the possession of the suit land from Laxmidhar, the Defendants claims to have got the possession of the land from the Purusottam, the son of Bhagirathi. Thus, in order to decide the

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RSA No.107 of 2016

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factum of possession, the entry over the property as stated by the parties, the finding on the above score is necessitated since both sides claim their possession on the basis of their respective purchases, not from one person but from two persons who are brothers.

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9. In view of the above, there stands thick cloud on the title of the property whether would be resting with the Plaintiff or the Defendants. It does not appear to be a case that the Defendants have raised a colourable claim so as to simply thwart the suit on such score. Therefore, the Courts below in my considered view have rightly held that the suit for permanent injunction simplicitor as instituted by the Plaintiff is not maintainable. The Plaintiff having not made the prayer for declaration of the right, title, interest and as such, the right to possess has rightly been non-suited.

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10. In the result, the Appeal stands dismissed. However, there shall be no order as to cost.

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(D. Dash), Judge.

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Narayan

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Signature Not Verified

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Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 19-Feb-2024 16:26:09

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RSA No.107 of 2016

Basudeb Panda v. Harekrushna Mishra

Case brief

What is this about?

What did the court decide?

Basudeb Panda v. Harekrushna Mishra

Case brief

What is this about?

What did the court decide?

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