Dismissed¶52

Dulal Ray v. Krushnapada Mandal

Orissa HC16 Jan 2024RSA/115/2023

Case brief

AI extract

What is this about?

Orissa HC (D. Dash, J., 16.01.2024), R.S.A. No.115/2023, Dulal Ray v. Krushnapada Mandal & Ors.: suit by title-claiming plaintiffs for negative declaration held maintainable; defendant's registered-sale-deed purchase claim disproved (Ext.11 copy bore no connection with suit land); First Appellate Court's recovery-of-possession decree upheld as proper moulding under Order 7 Rule 7 CPC; substantial question answered against defendant; appeal dismissed, lower-court decree confirmed.

What did the court decide?

None to the Appellant; the judgment and decree of the First Appellate Court stand confirmed, with no order as to cost. ¶52

Dulal Ray Vs Krushnapada Mandal — Specific Performance | Orissa HC (2024)

What the court decided

AI extract

Outcome

None to the Appellant; the judgment and decree of the First Appellate Court stand confirmed, with no order as to cost.

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Issue for consideration

Whether the Courts below were right in holding the suit maintainable when the Plaintiff, claiming title over the property in question, sought a negative declaration that the Defendants have no right, title and interest over the suit property.

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Court's answer

The substantial question of law is answered against the Defendant/Appellant, running in favour of confirmation of the judgment and decree passed by the First Appellate Court; i.e., the Courts below were right in holding the suit maintainable notwithstanding that the Plaintiff sought a negative declaration.

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Ratio / Principle

The Defendant failed to prove his claimed purchase of the suit land from the Plaintiffs' father; the sale deed copy (Ext.11) proved through the Plaintiffs from the Sub-Registrar's Register was found by the Courts below to have no connection with the suit land, so the Defendant's claim of ownership fell flat.

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Key takeaways

Since the title of the Plaintiffs over the suit land is not in dispute and the Defendant failed to prove his case of purchase, the Courts below committed no mistake in declaring that the Defendant has no right, title, interest over the suit land and that the right to possess it does not rest on him.ratio¶47
The First Appellate Court, having found the Defendant in illegal occupation without any right to possess (whether by purchase as claimed or by adverse possession), rightly moulded the relief by passing a decree for recovery of possession in favour of the Plaintiffs, which is within the power conferred under Order 7 Rule 7 CPC.ratio¶47

Detailed headnote1 paragraphs

Second appeal under Section 100 CPC (R.S.A. No.115 of 2023, High Court of Orissa at Cuttack; D. Dash, J.; decided 16.01.2024) by Dulal Ray against Krushnapada Mandal & Others, assailing the District Judge, Kendrapara's judgment/decree dated 22.12.2022 & 06.01.2023 in R.F.A. No.17 of 2019 confirming the Civil Judge, Kendrapara's decree in C.S. No.708 of 2015, whereby the defendant-appellant was declared to have no right, title or interest over suit land held by the plaintiffs' father on lease from the State, and possession was ordered to be handed over. Sole substantial question of law — whether the Courts below were right in holding the suit maintainable when a title-claiming plaintiff sought a negative declaration (a contention pressed against section 34, Specific Relief Act) — answered against the defendant: his claimed purchase from Nirmal Mandal by registered sale deed no.1764 dated 29.05.1994 was unproved, the sale deed copy (Ext.11) duly proved by the plaintiffs from the Sub-Registrar's Register kept under the Indian Registration Act bearing no connection with the suit land, plaintiffs' title standing undisputed; the mutated RoR was not accepted as a document of title. The First Appellate Court's moulding of relief to add a decree for recovery of possession was upheld as valid under Order 7 Rule 7 CPC. Appeal dismissed; no order as to cost.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A. No.115 of 2023

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In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 22.12.2022 & 06.01.2023 respectively, passed by the learned District Judge Kendrapara in R.F.A. No.17 of 2019, confirming the judgment and decree dated 20.03.2019 & 05.04.2019 respectively passed by the learned Civil Judge, Kendrapara in C.S. No.708 of 2015.

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----
….
Dulal Ray Appellant
-versus-
….
Krushnapada Mandal & Others Respondents
Appeared in this case by Hybrid Arrangement
:
(Virtual/Physical Mode)
For Appellant- M/s. A. R. Dash, S. Kar,
S. Kanungo, S. Mohanty.
Advocates
For Respondents - M/s. N. K. Sahu, B. Swain,
S. Ku. Nayak, A. Panda,
I. Ray, S. S. Sahu, N. R. Sahoo
Advocates

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CORAM:

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MR. JUSTICE D.DASH DATE OF HEARING :04.01.2024 ::DATE OF JUDGMENT:16.01.2024

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Page 1 of 9

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R.S.A. No.115 of 2023

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D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 22.12.2022 & 06.01.2023 respectively, passed by the learned District Judge Kendrapara in R.F.A. No.17 of 2019.

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The Respondents as the Plaintiffs had filed Civil Suit No.708 of 2015 in the Court of Civil Judge, Kendrapara seeking a declaration that the Appellant (Defendant) had no right, title, interest over the suit land with the consequential relief of permanent injunction in restraining the Appellant arraigned as the Defendant therein to come over the suit land.

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The suit having been decreed, the present Appellant had carried the Appeal under section 96 of the Code. The First Appellate Court while dismissing the Appeal, while confirming the judgment and decree passed by the Trial Court; has further directed the Appellant (Defendant) to hand over the possession of the suit land to the Respondents (Plaintiffs) within a time stipulated, failing which to face the process of law for being compelled to do so.

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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 Suit.

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R.S.A. No.115 of 2023

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3. Plaintiff’s case is that the land in suit stood recorded in the name of their father, namely, Nirmal Mandal. The State had granted the said land to him by way of lease. The Settlement Authorities recorded the name of the father of the Plaintiffs as the recorded tenant in respect of the suit land. The rent was being paid accordingly to the State and the land in suit had been in possession of the father of the Plaintiffs and after him with the Plaintiffs. It is stated that during the lifetime of the father of the Plaintiff, he had constructed a thatched (challia) house over the suit land and some members of their family were residing therein. In the year 1993, the Defendant approached him for work and as such, he was engaged in raising vegetable over the suit land and allowed to reside in the said thatched house, situated over the suit land. The Defendant after his marriage, approached the Plaintiff for permitting him to take shelter in the said house for short period till the arrangement of alternative accommodation for shifting of his family. The Plaintiffs allowed the Defendant to reside in the said house on a monthly rent of Rs.100/-. The Plaintiffs used to repair the said house on regular basis. The Defendant used to remain outside the village for his earning. In course of time, substantial amount remained outstanding towards the house rent to be paid by the Defendant to the Plaintiffs. When the Defendant was asked to pay the house rent, he flatly refused and on the other hand gave out that he had purchased the suit land from

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R.S.A. No.115 of 2023

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Nirmal Mandal, the father of the Plaintiffs. The Plaintiffs were then residing outside the State for earning their livelihood. They returned to the village sometime in October, 2015 and asked the Defendant to pay the arrear house rent, which the latter turned down. He then showed the Record of Right of the suit plot which stood mutated in his name. The Plaintiffs were surprised to take note of the said fact that in the meantime, the suit land has been mutated in the name of the Defendant. They later on came to know on enquiry that said mutation has been taken by using fake and bogus sale deed. In that situation, the Plaintiffs were compelled to file the suit.

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4. The Defendant while traversing the plaint averments in his written statement, has averred that the father of the Plaintiffs have sold the suit land by executing registered sale deed dated 29.05.1994 for valuable consideration of Rs.6000/-. It is stated that pursuant to the said sale, the delivery of possession of the suit land was given to the Defendant who is in possession of the since the date of his purchase. It is further stated that the Defendant is in open, peaceful and continuous possession of the suit land without any interruption from any quarter and as of right. He further pleaded to have constructed a house over the suit land where he is residing with his family members. According to him, the suit land has rightly been mutated in his name by order passed in Mutation Case No.2656 of 2014 and he has been paying the rent to the State. It is also stated that execution of

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R.S.A. No.115 of 2023

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the said sale deed by the father of the Plaintiffs was fully within the knowledge of the Plaintiffs who, in order to make windfall gain have set up the case to harass the Defendant, who has the right, title, interest and possession over the suit land. According to the Defendant, the Plaintiffs are residing in their house standing over the land under Plot No.323 which adjoins the suit plot. In course of time, a boundary dispute having arisen between them, the Plaintiffs being ill-advised, have initiated this speculative litigation.

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5. On the above rival pleadings, the Trial Court framed five issues. Answering the crucial Issue No.3, which relates to the claim of the Defendant as having the right, title, interest over the suit land by virtue of registered sale deed dated 25.09.1994, the Trial Court upon examination of evidence and their evaluation, more particularly, viewing the copy of the sale deed projected by the Defendant proved through the Plaintiff and marked Ext.11, has found the same to have no connection with the suit property. The Trial Court has ultimately found that the Defendant has failed to prove the document of title i.e. the registered sale deed in respect of the suit property which is the base upon which their entire claim stands. Having held so, the Trial Court refused to accept the mutated RoR as the document of title in holding the Defendants to be having the right, title, interest over the suit land on the strength of the same. Practically, such finding has led

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R.S.A. No.115 of 2023

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the Trial Court to decree the suit. Accordingly, the suit stood decreed by the following order:-

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“The suit of the Plaintiffs be and the same is herewith decreed contest against defendant without any cost. The defendant has no right, title & Interest over the suit land and he is permanently restrained to entre upon the suit plot or possess the same in any manner what so ever.”

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6. The First Appellate Court being moved by the aggrieved Defendant having affirmed the finding of the Trial Court has also dealt the contention as to the maintainability of the suit seeking a negative declaration as pointed out to be contrary to the provision contained in section 34 of the Specific Relief Act, and has answered against the Defendant. The First Appellate Court finding the Plaintiff to be out of possession of the suit land, on account of the failure of the Defendant to establish his claim of right, title, interest and as such the right to possess, when the title of the Plaintiffs thereby stood admitted has also directed for recovery of possession of the suit land. The First Appellate Court has passed the following order:-

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“The judgment dated 26.03.2019 and the decree dated 05.04.2019 passed by the Civil Judge, Kendrapara in Civil Suit No.708 of 2015 are confirmed. It is hereby declared that the defendant has no right, title, interest over the suit land. The defendant is directed to handover the possession of the suit land to the plaintiffs within two months from today, failing which the plaintiffs are at liberty to recover the same by the process of law to be undertaken before the learned Court below. The Defendant is permanently restrained

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R.S.A. No.115 of 2023

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from entering upon the suit land and interfering in the possession of the plaintiffs thereon in any manner once the possession of the same (the suit land) is made over to the Plaintiffs, as stated above. With these modifications, the judgment and the decree, passed by the Civil Judge, Kendrapara in CS No.708 of 2015, is confirmed. Consequently, the appeal fails and is dismissed on contest but, without cost.”

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7. The Appeal has been admitted to answer the following substantial question of law:-

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“Whether the Courts below are right in holding suit as maintainable, when the Plaintiff claiming title over the property in question have sought for a negative declaration that the Defendants have no right, title and interest over the suit property?”

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8. Heard Mr. S. Kar, learned Counsel for the Appellant and Mr. N. K. Sahu, learned Counsel for the Respondents at length.

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9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.

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10. It is not in dispute that the suit land belong to Nirmal Mandal, the father of the Plaintiff, who had got the same by way of lease from the paramount owner of the property i.e the State. The land accordingly stood recorded in his name in the Settlement Record of Right. The Defendant in their written statement has stated to have purchased the suit land from that Nirmal by registered sale deed no.1764 dated 29.05.1994 for valuable consideration. The Defendant

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R.S.A. No.115 of 2023

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has however not proved the original sale deed from his side. The Plaintiffs calling for the relevant Register from the Sub-Registrar’s Office which contained the entries relating to that sale deed and prepared and preserved under the statutory provisions of the Indian Registration Act has duly proved it which has been marked as Ext.11. The Courts below have found that said sale deed has no connection with the suit land. Therefore, the case of the Defendant that he is the owner of the suit land having purchased the same from the father of the Plaintiff has fallen flat on the ground. So when the title of the Plaintiffs over the suit land is not in dispute and the Defendant has failed to prove his case of purchase of the suit land from the father of the Plaintiffs, the Courts below did commit no mistake in declaring that the Defendants has no right, title, interest over the suit land and as such in further saying that the right to possess the suit land does not rest on him. The First Appellate Court having thus found the Defendant to be in illegal occupation of the suit land having absolutely no right to possess the same, having not derived the right, title, interest over the same either by virtue of purchase as claimed or in the alternative by way of adverse possession has rightly moulded the relief in passing a decree for recovery of possession of the suit land in favour of the Plaintiff which is within the power conferred under Order 7 Rule 7 of the Code.

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R.S.A. No.115 of 2023

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11. The substantial question of law is accordingly answered against the Defendant which runs in favour of the confirmation of judgment and decree passed by the First Appellate Court.

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

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(D. Dash), Judge.

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Gitanjali

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Signature Not Verified

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Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 17-Jan-2024 11:37:54

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