Dismissed

Mitrabhanu Bariik v. Amruta Naik

Orissa HC11 Mar 2024RSA/133/2016

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed a second appeal filed by a plaintiff challenging the dismissal of his suit for declaration of title. The Court held that no substantial question of law arose regarding an unregistered sale deed as no case of adverse possession was projected.

What did the court decide?

The second appeal is dismissed, and the impugned judgment and decree of the Additional District Judge are affirmed.

Mitrabhanu Bariik Vs Amruta Naik — Property and Title | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A. No.133 of 2016

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In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 07.12.2015 & 28.12.2015 respectively passed by the learned Additional District Judge, Padampur, in R.F.A. No.46/44 of 2010/2013, confirming the judgment and decree dated 17.07.2010 & 29.07.2010 respectively passed by the learned Additional Civil Judge, (Junior Division), Sohela in Civil Suit No.82 of 2005.

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----
Mitrabhanu Barik …. Appellant
-versus-
Amruta Naik & Others …. Respondents
Appeared in this case by Hybrid Arrangement
:
(Virtual/Physical Mode)
For Appellant - Mr. S. K. Dash
Advocate
…………..
For Respondents -

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CORAM: MR. JUSTICE D.DASH Date of Hearing : 29.02.2024 :: Date of Judgment: 11 .03.2024

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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 challenged the judgment and decree dated 07.12.2015 & 28.12.2015 respectively

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R.S.A. No.133 of 2016

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passed by the learned Additional District Judge, Padampur, in R.F.A. No.46/44 of 2010/2013.

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The Appellant as the Plaintiff had filed the suit (Civil Suit No.82 of 2005) for declaration of his right, title, interest over the suit land as described in the schedule of the plaint. The suit arraigning the Respondents as the Defendants therein having been dismissed, the Appellant as the unsuccessful Plaintiff had carried an Appeal under section 96 of the Code, which has also been dismissed. Hence the present Second Appeal is at the instance of the Appellant, who has remained unsuccessful as the Plaintiff before the Trial Court as well as the First Appellate Court.

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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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3. The case of the Plaintiffs is that one Ganda Barik was the owner in possession of the suit land and it was also recorded in his name. During the life time, Ganda sold the suit land to Chandra Sekhar Barik by executing an unregistered sale deed on 16.12.1933. It is stated that from that day onwards, Chandra Sekhar remained in possession of the suit land and accordingly, his name was reflected in the remarks column of Hamid Settlement Record under Khata No.18/2 as to be in possession of the same. Said Ganda died issue less. Mukunda

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R.S.A. No.133 of 2016

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Barik is the cousin of said Ganda Barik. Chandra Sekhar Barik died leaving behind his four sons, namely, Jogeswar, Dhubaleswar, Lokanath and Mitrabhanu.

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Mitrabhanu is the Plaintiff whereas Lokanath is Defendant No.2; the Defendant No.4, 5 & 7 are the sons of Dhubaleswar whereas the Defendant No.3 is the son of Jogeswar. It is stated that the Plaintiff and Defendant No.3, 4, 5 & 7 have been possessing the suit land as of their right exercising the right, title and interest since in the year 2005. The Defendants created disturbance in the possession of the suit land by the Plaintiff who then on enquiry, came to know that the suit land was recorded in the name of the Kunja Bihari, the husband of Defendant No.1 and father of Defendant No.1 (b) to 1(f). The Plaintiff also came to know that the suit land was originally recorded in the name of Mukunda Barik cousin of Ganda Barik and subsequently, in the name of Rukmani Barik, wife of Mukunda Barik.

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The daughters of Mukunda Barik had filed Title Suit No.24/85 in the Court of Sub-Judge, Padampur (as was then) to delete the name of Indra, the grandfather of Defendant No.1(b) to 1(f) and accordingly, the prayer was allowed when ultimately name of Indra was deleted. But surprisingly, name of Kunja Bihari, the father of the Defendant No.1(b) to 1(f) was again recorded in a mutation proceeding. The Plaintiff states that the recording of the land in the name of the father of Defendant No.1(b) to 1(f) is illegal. It has been

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R.S.A. No.133 of 2016

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pleaded that the Defendants have no right, title, interest over the suit land and they have never possessed the same.

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4. The Defendant No.1 Kunja Bihari having died during pendency of the suit, his legal representatives have come on record as Defendant No.1(b) to 1(f). In the written statement filed by them, they have denied the case/claim of the Plaintiff and have stated that Ganda Barik had no right and authority to alienate the suit land. It is also said that the sale deed was a fabricated one. It is stated that the vendor of the said sale deed was never in possession of the suit land.

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5. On the above rival pleadings, the Trial Court has framed as many as six issues. Answering issues relating to the Plaintiff’s claim of right, title, interest over the suit land and also the rival claim of possession of the parties in one go and rightly so; upon examination of evidence and their evaluation, the answer has been recorded against the Plaintiff that he has failed to prove his case so as to get a declaration of his right, title, interest over the suit land. The suit accordingly stood dismissed.

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The First Appellate Court being moved by the unsuccessful Plaintiff, no fruitful result has yielded for them.

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6. Learned counsel for the Appellant submitted that the judgment of the First Appellate Court having been rendered ignoring Ext.5, the unregistered sale deed dated 16.12.1933 the same cannot be

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R.S.A. No.133 of 2016

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sustained. It was also submitted that both the Trial Court as well as the First Appellate Court have committed the illegality by overruling the plea of title on the basis of possession even though the sale deed is taken to be invalid one. He thus 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.

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8. The Plaintiff’s claim is based upon purchase of the suit land and flows from that unregistered sale deed Ext.5, which is dated 16.12.1933. There is no pleading to the effect even being set up in the alternative that there has been acquisition of title over the suit land by way of adverse possession in view of the open, peaceful and continuous and uninterrupted possession of the suit land from that time onwards exercising all the rights of ownership. The sale deed in relation to immovable property being unregistered is not admissible in evidence since in that very sale deed, the consideration involved has been quoted as Rs.149/- which is above the ceiling placed under law as per section 17 of the Registration Act, 1908. Thus the Courts below are found to have rightly stated that even if said document is accepted, that cannot be the basis to say that the vendee therein had acquired the right, title, interest over the land in question by virtue of

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the same. As already stated, there being no projection of a case of acquisition of title over the suit land by way of adverse possession by

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R.S.A. No.133 of 2016

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pleading all the facts touching the required ingredients, in a suit of this nature, it is not legally permissible to make out a case in that regard for the Plaintiff.

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9. In the wake of aforesaid, this Court is of the view that there surfaces no such substantial question of law for being answered meriting admission of this appeal.

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10. In the result the Appeal stands dismissed. No order as to cost.

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(D. Dash),
Judge.
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: 19-Mar-2024 11:26:37

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R.S.A. No.133 of 2016

Mitrabhanu Bariik v. Amruta Naik

Case brief

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Mitrabhanu Bariik v. Amruta Naik

Case brief

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