Rabinarayan Jena Vs Sudhakar Mohanty

HIGH COURT OF ORISSA : CUTTACK RSA NO.197 OF 2023

In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 24.04.2023 passed by the learned Additional District Judge, Balasore in RFA No.38 of 2008 (199-2014) in confirming the judgment and decree dated 10.03.2008 and 24.03.2008 respectively passed by the learned Civil Judge (Junior Division), Balasore in T.S. No.102 of 1996-I.

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Rabinarayan Jena & Another Appellants.
-:: VERSUS ::-
::::
Sudhakar Mohanty & Others Respondents.
Advocate(s) who appeared in this case by hybrid arrangement
(virtual/physical) mode.
-----------------------------------------------------------------------------------------
For Appellants … M/s. K.K. Rath,
D.B.Rath & P. Panda
(Advocates)
… --- --- ---
For Respondents
------
CORAM :
MR. JUSTICE D.DASH

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Date of Hearing:05.03.2024 :: Date of Judgment:12.03.2024

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D.Dash,J . The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have

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assailed the judgment and decree passed by the learned Additional District Judge, Balasore in R.F.A. No.38/2008(1992014). The Predecessor-In-Interests of the Appellants as the sole Plaintiff had filed the suit (TS No.102/96-I) in the Court of the learned Civil Judge (Jr. Division), Balasore. During pendency of the suit, these Appellants in view of the death of the original Plaintiff came to be substituted and they pursued the suit. The suit stood dismissed. So, they had carried the Appeal under section 96 of the Code. That 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. 3. Plaintiffs case is that the property in schedule ‘Ka’ of the plaint assigned with Khata No.284 in the current settlement standing recorded in the name of Kanduri Jena and Narayan Jena having been succeeded by them and they are in possession of the same under an enclosure being the absolutes owners. In the current settlement record of right, possession notes find place.

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In the Major Settlement Operation, ‘Ka’ schedule property pertaining to C.S. Plot No.236/667 was recorded in their favour along with Major Settlement Plot No.833 measuring Ac.0.01 dec., Plot No.834 measuring Ac.0.056 dec. in toto and Ac.0.066 dec, vide M.S. Khata No.255. There was inclusion of Ac.0.017 dec. of land towards east out of the C.S. Plot No.235 in M.S. Plot No.834.

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It is stated that C.S. Plot No.231 stood located towards east of their land under C.S. Plot No.236/667. It is stated that one Shyama Jena was the owner in possession of the said land under C.S. Plot No.231. While said Shyama Jena was possessing the same, he alienated a portion therefrom. After his death, his legal heirs followed the path of said Shyama Jena and transferred the same to different vendees from time to time. The Defendants thus claims to have acquired some portions thereof from the legal heirs of Shyama. It is stated that the Plaintiffs later learnt about the recording of the M.S. Plot No.832 measuring Ac.0.10 dec and M.S. Plot No.837 measuring Ac.0.060 in toto Ac.0.16 dec. under M.S. Khata No.269 in the name of the Defendants. They assert that during the Major Settlement Operation, the Settlement Authority have illegally recorded Ac.0.01 dec. from C.S. Plot No.236/667 in M.S. Plot No.832 and 834 belonging to the Defendants. So far as Major Settlement Map is concerned, according to them, Major Settlement map in respect of the suit land and its adjoining plots do not give the true picture as it ought to be in as much as they are in possession of Ac.0.05 dec. appertaining to suit property as before. In view of such wrong publication of the Major Settlement map, the Defendants gave threat to cut down their eastern side fence standing on M.S. Plot No.236/667 as also to take away coconut from the trees standing over there with a view to dispossess them. When the Defendants

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started gathering materials for erection of the pucca boundary wall, the suit came to be filed.

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4 . The Defendant Nos.1 to 3 in their written statement took the stand that the suit property has not been properly described and, therefore, they expressed their inability to know the real area and location of the suit land. They questioned the claim/case of the Plaintiffs in further stating that the suit is for non-joinder of necessary parties.

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It is stated that initially C.S. Plot No.231 under C.S. Khata No.295 measuring Ac.1.30 dec. was of Shyama Jena. It is situated in Mouza-Karanjia on the eastern side of homestead property of the Plaintiffs. Shyama Jena alienated Ac.0.08 dec. of land towards North-East of C.S. Plot No.231 in favour of Banchha @ Banchhu Jena by Registered Sale Deed dated 08.02.1937 and delivered possession of the same. In the said registered sale deed, there was a mention to the effect that Kanduri Jena was the western side tenant of the land which was the subject matter of the deed. After death of Banchhu, his acquired property devolved upon his son Surendra and two daughters, namely, Rahasmani and Kunimani, who were in possession of Ac.0.10 dec. instead of Ac.0.08 dec. In the Major Settlement, their names were recorded as owners in respect of M.S. Plot No.832. With the prior permission of the S.D.O., Balasore as required under the provision of Orissa Land Reforms Act, 1960 in respect of Ac.0.08 dec. of land, the legal heirs of Banchhu transferred the same in favour of the

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Defendants by executing registered sale deed on 22.02.1975. Though the sale deed discloses about transfer of Ac.0.08 dec. yet at the spot the vendees remained in possession of Ac.0.10 dec. As per the direction of the S.D.O. Balasore, Ratnakar Jena and Juluki Jena Successor-In-Interest of Shyama Jena sold away Ac.0.01 ½ dec. out of C.S. Plot No.231 to them on 13.08.1982 under registered sale deed for valuable consideration and since then they are in possession of the same. In the same process, said Ratnakar and Juluki further disposed of Ac.0.05 dec. of land from C.S. Plot No.231 to them by registered sale deed dated 12.10.1985 for valuable consideration and they are in possession of the same. The Defendants are the owners in possession of their acquired property of Ac.0.10 dec. under M.S. Plot No.832. They got rest of their land mutated as of their acquired property to the extent of Ac.0.06 ½ dec. with corrected M.S. Plot No.824 /1240 under Khata No.299/72 as per the order in Mutation Case No.552/1987. After publication of the M.S.ROR, Ratnakar Jena transferred Ac,0.04 dec in favour of Defendant No.2 and Ac.0.04 dec. in favour of Defendant No.3 by Registered Sale Deed dated 21.04.1983. Since then they are in possession of the same. It is further stated that Kanduri Jena and Narayan Jena were the owners in possession of the property appertaining to C.S. Khata No.284. Kanduri was in possession of some plots thereunder and so was Narayan. Accordingly, note of possession was reflected therein. Particularly the land under C.S. Plot No.232 was shown to be in

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possession of Narayan who alienated the same in favour of Nalu. Said Nalu disposed of the same in favour of Upendra Rout by executing registered sale deed on 19.08.1964. Said Upendra transferred Ac.0.06 dec. towards west thereof to one Lambodar Ratha, who sold away to them on 04.02.1976. In Major settlement, the said land was recorded under M.S.Plot No.837 assigned to M.S. Khata No.269. According to the Defendants, they were residing over their acquired property, i.e., land under C.S. Khata No.232 since 1976. It is also stated that C.S. Plot No.231 has been recorded as M.S. Plot No.832. In addition C.S. Khata No.232 covered under some portion of M.S. Plot No.837 and over that the Defendants have got their pucca house for more than fifteen years. Their further case is that the Plaintiffs have got their land adjacent to western side of the acquired property of the Defendants appertaining to C.S. Plot No.231. There was green fencing towards the west of their acquired property. The Plaintiffs having not agreed to their proposal for erecting a permanent boundary, they were compelled to erect the boundary wall of 16 ft. of length and put up some concrete pillars towards the north of the said land. Similarly, on acquisition of land towards south, they also put up concrete pillars on western and southern boundary line. All such pillars five in number as also pucca wall standing located on the eastern side of the green fence justify the boundary wall. The Plaintiffs neither resisted nor raised any voice when such pucca wall and concrete pillars were

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put. It is also stated that the Plaintiffs have unilaterally damaged the green fence existing between Plot No.832 and 833. So the local police was informed and a criminal case was initiated. The Defendants assert that they have got the right, title and possession over the acquired property. They have also set up an alternative claim as to have acquired title over the property by way of adverse possession.

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5 . The Trial Court upon examination of evidence on record and their evaluation in the backdrop of the pleadings decided the crucial issue as to the claim/case of the Plaintiffs against them. The maintainable of the suit for non-joinder of necessary party and the Plaintiffs claim of declaration that ‘Kha’ schedule property is a part and parcel of ‘Ka’ schedule property and thereby to declare their right, title and interest over the same have been answered against the Plaintiffs.

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6 . Learned counsel for the Appellants being handicapped for non-mention of the substantial question of law in the Memorandum of Appeal submitted that the Courts below ought not to have dismissed the suit on the ground of non-joinder of necessary party without providing any opportunity to the Plaintiffs to implead them under Order-1, Rule-10 of the Code. He further submitted that the Courts below on the face of the evidence on record have committed grave error in holding that the Plaintiffs have no right, title and interest over the ‘Kha’

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schedule property. He, therefore, urged for admission of the 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 gone through the judgments passed by the Courts below.

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8 . The most important point standing to be addressed as to if the Plaintiffs are entitled to Ac.0.008 dec. from out of the plot No.832 and Ac.0.02 dec. from out of the Plot No.824.

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Pot No.824 is recorded in the name of Ratnakar Jena and Juluki Jena son of Shyama Jena. The Plaintiffs have not impleaded the above recorded tenants as parties to the suit. When some portion of land under Plot No.824 has been purchased by the Defendants and subsequently, mutated in their name under Plot No.824/1240 measuring Ac.0.065 dec., the plaint, however, does not find mention of the corresponding M.S. Plot number nor that is there in the relay map admitted in evidence and marked Ext.6 even that is not indicated in the relay map filed by the Defendants admitted in evidence and marked as Ext.DD. When the Plaintiffs state that about M.S. Plot No.824, the recorded tenants of the said plot ought to have been joined as parties from the beginning. The Plaintiffs being fully aware about the said position have neither taken any step during the Trial of the suit nor filed any application in the First Appeal. So here the Plaintiff had all such opportunity to implead them as parties to the suit and rather as it appears that the Plaintiffs have chosen to carry that risk in going ahead with the Suit and First Appeal for their

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culmination without any change. The First Appellate Court on detail discussion of evidence on record has arrived at a conclusion that neither Plaintiffs have established that their lost lands has gone to M.S. Plot Nos.833 and 834 nor they could establish that the Defendants have gained the said land illegally as it has gone into their lands. This finding appears to have been arrived at upon detail discussion of evidence mainly the documentary evidence on record. The finding of the First Appellate Court is that the Plaintiffs have failed to prove that M.S. Settlement map in relation to Plot Nos.833 and 834 is wrong. The Trial Court as well as the Appellate Court having so held against the case of the Plaintiffs upon detail discussion of the evidence which the parties had led; this Court finds no perversity therein. Therefore, the submission of the learned counsel for the Appellants that there arises the substantial question of law for being answered in this Appeal meriting its admission cannot be accepted.

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

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(D. Dash), Judge.

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Signature Not Verified

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Digitally Signed Himansu Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 21-Mar-2024 12:43:32

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Rabinarayan Jena v. Sudhakar Mohanty

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Rabinarayan Jena v. Sudhakar Mohanty

Case brief

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