Sribash Sarkar Vs Hazirani Bain

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.139 of 2017

In the matter of an Appeal under Section 100 of the Code of Civil Procedure,1908 assailing the judgment dated 16^th February 2017 passed by the learned Additional District Judge, Malkangiri in R.F.A. No.17 of 2014 confirming the judgment and decree dated 10^th December 2014 and 9^th March 2015 respectively passed by the learned Civil Judge (Senior Division), Malkangiri in Civil Suit No.03 of 2014.

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…
….
Sribash Sarkar (Since Dead) by Appellants
his LRs, namely, Parul Sarkar &
Another
-versus-
Hazirani Bain & Another …. Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
=======================================================
-
For Appellants M/s.G.N. Mishra, J.K. Pradhan,
S.C. Sahoo & K.C. Pattnaik
(Advocates)

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-------------
For Respondents -
CORAM:

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MR. JUSTICE D. DASH

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Date of Hearing : 12.03.2024 : Date of Judgment : 22.03.2024 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of

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the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment & decree passed by the learned Additional District Judge, Malkangiri in R.F.A. No.17 of 2014.

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RSA No.139 of 2017

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The Respondents as the Plaintiffs had filed the suit (C.S. No.03 of 2014) in the Court of learned Senior Civil Judge, Malkangiri for recovery of possession of the suit land from the hands of the Appellants, who had been arraigned as the Defendants therein with further prayer for permanent injunction.

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The suit having been decreed by the Trial Court; these Appellants, as the Defendants, thus having been suffered from the same had carried the Appeal under Section-96 of the Code which has been dismissed. Hence, the present Second Appeal is at the instance of these Appellants, who are under the sufferance of the judgments and decrees passed by 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 Trial Court.

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3. The Plaintiff’s case is that the suit land stood recorded in the name of Nirapad Bain, who died sometime in the year 200102. The Plaintiff No.1 is the wife and Plaintiff No.2 is the daughter of said Naripad Bain and they are his legal heirs and successors. Plaintiff No.2 has been cultivating the suit land in view of the old age of Plaintiff No.1. The Plaintiffs had the right, title, interest as also possession over the suit land after the death of Nirapad. Since on 01.07.2012, the Defendant forcibly occupied

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a portion of the land under Plot No.924 and constructed a house over there and also forcibly occupied half portion of the land under Plot No.923, the said Plaintiffs have been compelled to file the suit.

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4 . The Defendants in their written statement while traversing the plaint averments have stated that they had purchased the land measuring Hc.1.227 appertaining to Khata Nos.138, Plot Nos. 923, 924, 277, 1337 & 1414 from that Nirapad Bain by a sale deed dated 25.04.1990 on payment of valuable consideration of Rs.8,000/-. It is further stated that Nirapad having sold the property, said Nirapad had delivered possession to them and as such they are in possession of the suit land by cultivating the same and it has been to the knowledge of the Plaintiffs from the very beginning.

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5 . The Trial Court on the above rival pleadings framed as many as five (5) issues. Coming to decide the crucial issue as regards the Plaintiffs claim of right, title and interest over the suit land and the projected case of the Defendants that they have purchased the suit property and acquired the right by virtue of same; upon examination of evidence and their evaluation, the decision has been rendered in favour of the Plaintiffs and against the Defendants. The Trial Court held that the Defendants have failed to prove that they have legally purchased the suit from Nirapad and as such have the right, title, interest and possession

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over the suit land. Having so held, the Trial Court decreed the suit.

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6 . The unsuccessful Defendants then carried the Appeal in challenging the findings of the Trial Court leading to the decree in favour of the Plaintiffs. The Frist Appellate Court on independent examination of evidence and their evaluations at its level has found no reason to differ with the findings of the Trial Court. In view of that, the First Appellate Court has accorded the seal of approval to the judgment and decree passed by the Trial Court in favour of the Plaintiffs.

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7 . Mr. G.N. Mishra learned Counsel for the Appellants submitted that the Defendants, having specifically pleaded to have purchased the property in suit by sale deed dated 25.04.1990 for valuable consideration of Rs.8,000/- and pursuant to that had taken the possession of the suit land being so delivered by their vendor, Nirapad Bain, the predecessors-ininterest of the Plaintiffs; though the Trial Court as well as the First Appellate Court are right in holding that the sale-deed being unregistered, the right, title and interest over the suit land by that had not passed in favour of the Defendants, yet a specific issue ought to have been framed and answered that whether the Defendants by remaining the possession of the suit property with effect from 25.04.1990 on the strength of invalid purchase has acquired right, title and interest over the suit property by

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virtue of adverse possession or not. He, therefore, submitted that when on the face that the pleadings, such an issue ought to have been framed and decided it’s a fit case for remand of the suit to the Trial Court to frame that particular issue and decide the suit afresh by rendering decision on that issue after providing due opportunity to the parties to lead further evidence and hearing them. He, therefore, submitted for admission of this Appeal to answer the above as the substantial question of law.

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8 . Keeping in view the submissions made, I have carefully read the judgments passed by the Trial Court as well as the First Appellate Court. I have also perused the pleadings.

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9 . The antecedent title of Nirapad Bain over the suit land stands admitted. When the Plaintiffs claim to have succeeded to the property of Nirapad being his legal heirs and successors and state that they being in possession for sometime thereafter, the Defendants forcibly entered upon the suit land and are in unauthorized occupation of the same; the Defendants case is that they have purchased the property from Nirapad Bain by sale deed dated 25.04.1990 on payment of consideration of Rs.8,000/-. They have next pleaded to have been physical possession of the said purchased land peacefully without any objection.

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The so-called sale deed has been produced and proved from the side of the Defendants and it has been admitted in evidence and marked Ext.A. The Trial Court has examined that

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Ext.A and found the same to be merely a declaration on a plain paper and according to the Trial Court, it cannot be construed to be a sale deed. It has been stated by the Trial Court as under:-

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“8. Now, it is time to find out whether the suit land had been purchased by the defendants? For providing title, what evidence the defendants had given needs to be seen. The specific contention of the defendants is that they had purchased the suit land from the Nirapad Bain, who is the father of the plaintiff No.2(P.W.1), but they had not filed any sale deed in support of their claim that the suit land had been purchased by them. Their stand upon Ext.A which is merely a declaration on a plan paper without showing the definition of sale deed is not perceivable. Whether the document fulfills the ingredients of sale deed for mortgage deed or agreement to sale is not understood from the body of the document. The document prima facie does not show that it is a sale deed. So, what is the intention of such a document?”

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The document is an unregistered one. When it has been said by the Defendants that have purchased the suit land by such document, even if, for a moment, it is stated to be a sale deed then also under that document, the right, title and interest in respect of the suit land has not been transferred from the hands of Nirapad to the hands of the Defendants. Thus, the claim of the Defendants as regards their purchase of the suit land falls flat on the ground.

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When the Defendants have claimed to have acquired ownership over the property having purchased the same from

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the original owner, the very document evidencing the transaction, is not found to be a document executed by the vendor intending to transfer his right, title, interest and possession over the suit land in favour of the Defendants. Thus, it cannot be said that the Defendants came to possess the suit land as its owner in the eye of law.

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10 . Furthermore, the Defendants in their written statement have not set up the case of acquisition of title over the suit land by adverse possession as an alternative one and their claim of purchase by pleading on those detail facts touching upon the ingredients as to acquisition of title by adverse possession.

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In view of all these aforesaid, this Court is not in a position to countenance with the submission of the learned Counsel for the Appellants (Defendants) that arises substantial question for being answered meriting admission of this Appeal as in the absence of clear pleading from the side of the Defendants, there was no occasion for framing an issue on that score of adverse possession for decision.

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11 . In the result, the Appeal stands dismissed. There shall however be no order as to cost.

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Signature Not Verified

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(D. Dash), Judge.

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Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Narayan Date: 22-Mar-2024 17:04:17

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RSA No.139 of 2017