Jyotshnamayee Kanungo Vs a. Koramani Patra

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.40 of 2023

In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 16^th December, 2022 & 24^th December, 2022 respectively passed by the learned 3^rd Additional District Judge, Bhubaneswar in R.F.A. No.14/1 of 2016 setting the judgment and decree dated 11^th December, 2015 & 26^th December, 2015 respectively passed by the learned Senior Civil Judge, Bhubaneswar in C.S. No.1385 of 2010.

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----
….
Jyotshnamayee Kanungo Appellant
-versus-
A. Koramani Patra …. Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode)
========================================================
For Appellant - Mr. Prafulla Kumar Rath,
Senior Advocate.
For Respondent - Mr. Banshidhar Baug,
Advocate.

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CORAM:

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MR. JUSTICE D.DASH

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Date of Hearing : 21.11.2023 :: Date of Judgment: 29.01.2024 D.Dash,J. The Appellant, 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 and decree dated 16^th December, 2022 & 24^th December, 2022 respectively passed by the learned 3^rd

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Additional District Judge, Bhubaneswar in R.F.A. No.14/1 of 2016.

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The Respondent, as the Defendant, being aggrieved by the judgment and decree dated 11^th December, 2015 & 26^th December, 2015 respectively passed by the learned Senior Civil Judge, Bhubaneswar in C.S. No.1385 of 2010 instituted by the present Appellant as the Plaintiff had preferred the Appeal under Section- 96 of the Code. The First Appellate Court has set aside judgment and decree dated 11^th December, 2015 & 26^th December, 2015 respectively passed by the learned Senior Civil Judge, Bhubaneswar in C.S. No.1385 of 2010 in favour of the present Appellant (Plaintiff) and accordingly, the present Appellant-Plaintiff’s suit has been dismissed and she has been non-suited. Hence, the present Second Appeal is at the instance of the unsuccessful Plaintiff as the Appellant.

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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 suit involves a dispute as to title over the suit land and prayer for permanent injunction with other ancillary prayers. The Plaintiff states that the suit property is covered under the land assigned with sabik Plot No. 259 appertaining the sabik Khata No.179 of mouza:

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Laxmisagar and that according to her, corresponds to the land under Hal Khata No.137, Plot No.151/1312 Further corresponding the land under Khata No.150, Plot No.59/1301 out of Ac.0.900 decimals, Ac.0.099 decimals corresponding to mutation khata No.565/146. Plot No.59/1301/1869 of an area of Ac.0.088 decimals along with some other plots which stood jointly recorded in favour of Bika Behera, Kunja Bihari Mohanty, Lingaraj Moharana and Nagendra Prasad Das.

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It is stated that all the recorded owners alienated their respective 1/4^th share in favour of different purchasers. Bika Behera had sold the part falling in his share over the total land measuring Ac.0.099 decimals in favour of the Plaintiff by registered sale-deed dated 15.04.1958 and it is said that Bika Behera had delivered possession of the suit land and that was recorded during settlement operation in her name being assigned with plot No.59/1301 under khata No.150. The Plaintiff for certain personal reason could not pay the rents towards the suit property. In the year 2009, when the Plaintiff went to pay the rent, the local Revenue Inspector refused to accept the same citing the reason that Ac.0.088 decimals out of the purchased land of the Plaintiff had been recorded in the name of Defendant by an order passed in the mutation case.

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The Plaintiff then enquired into the matter and learnt that her purchased area has been recorded in favour of the

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Defendants by an order passed in Mutation Case No.2789/1997 and on the basis of the claim of the Defendant to have purchased the property from one Bishnu Charan Mohanty. The Plaintiff further ascertained that the recording of the land in favour of the Defendant is based on a void sale-deed, which is invalid being executed by his vendor-Bishnu Charan Mohanty (vendor therein) basing upon the decree passed in a suit i.e. O.S. No.32 of 1977 instituted at the instance of Kunja Bihari Mohanty; wherein the Plaintiff was not a party, though she had purchased the suit land way back in the year 1958 i.e. about 19 years before the suit and the vendor of the Plaintiff who had long since sold the properties to the Plaintiff being made a party to the said suit colluded with Kunja Bihari (the Plaintiff of that suit) and thus, did not file the written statement leaving the suit to be decided ex-parte as against him.

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The plaintiff thus pleaded that the judgment and decree passed in the said suit of the year 1977 behind her back are not binding on her and so also the order passed in the mutation proceeding which was also without notice to her and that too cannot stand against her. The Plaintiff thus came to file the suit, when the Defendant on the strength of said record all of a sudden on a fine morning came over the suit land and wanted to dig earth from the same.

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4 . The Defendant, in the written statement, while traversing the plaint averments had stated that the suit land was the exclusive property of Bishnu Charan Mohanty and Smt. Basanta Kumari Mohanty, which was allotted in their favour in a partition which had taken place in O.S. No.32 of 1977 and they had finally been delivered with the possession of the same by the order passed in Execution Case No.18 of 1985. They being as such in possession of the suit land have sold the same to the Defendant by registered sale-deed dated 14.08.1987 for valuable consideration followed by delivery of possession. The Defendant’s claim is that on the strength of said purchase, he has rightly got the land recorded in his favour in the mutation proceeding and is in possession of the same by paying rent to the State. It is further stated that land under pre-sabik suit plot was recorded jointly and there was no partition by metes and bounds and the partition had been affected only in the O.S. Case No.32 of 1977.

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Next, it is stated that the Plaintiff might have purchased the suit land, but that has no nexus with the suit land and the vendor of the Plaintiff had no right to transfer any portion of the suit land as on 15.04.1958. Thus, it is said that the Plaintiff has not been clothed with any right, title and interest over the same by that sale deed. The Defendant claims to have rightly been recorded with the purchased land.

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5 . On the above rival pleadings, the Trial Court in total framed eleven (11) issues which are read as under:-

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i) Is the suit maintainable? ii) Whether there is any cause of action to file the suit?

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iii) Whether the suit is barred by law of limitation?

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iv) Whether the defendant has no right, title, interest and possession over the suit land?

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v) Whether the mutation authority has jurisdiction to correct the settlement ROR on the basis of registered sale deed executed in favour of the defendant after final publication of the ROR without any final publication of the ROR without any revision under the Orissa Survey and Settlement Act?

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vi) Whether the defendant has acquired any right, title, interest in respect of the suit land by means of the decree passed in T.S. No.32/1977 and order passed in mutation case No.2789/97?

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vii) Whether the judgment and decree passed in T.S. No.32/1977 is binding on the plaintiff?

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viii) Whether the sale deed executed in favour of the defendant bearing RSD No.7613 dated 14.08.1987 will confer any right, title, interest in respect of the suit land in favour of the defendant?

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ix) Whether the plaintiff has right, title, interest and possession over the suit land?

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x) Whether the plaintiff is entitled to recovery of possession of the suit land if she is found dispossessed during pendency of the suit and after recovery of

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possession she is entitled to the relief of permanent injunction?

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xi) To what other reliefs, the parties are entitled?

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6 . The competing claim of right, title and interest over the suit land as advanced by the Plaintiff as well as the Defendant being covered under the Issue nos.4 and 9; the Trial Court very rightly taken those two together for decision at first. On detail discussion of evidence in the backdrop of the rival pleadings, the issues have been answered in favour of the Plaintiff. Then having come to the other issues as to the suit being barred by limitation and its maintainability, the Trial Court has also held in favour of the Plaintiff. So the Trial Court decreed the suit.

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7 . The Defendant being aggrieved by the judgment and decree passed by the Trial Court had carried the First Appeal, which stood numbered as RFA No.14/1 of 2016. The First Appellate Court after hearing framed one more additional issue which reads as under:-

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“Whether the Plaintiffs purchased land under registered sale-deed dated 15.04.1998 is the same land as recorded in her name in the record in the ROR?”

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The First Appellate Court, having framed the issue as above, banking upon the provision contained in Oreder 41 Rule 25 of the Code, had returned the case record to the Trial Court under with a direction to record the finding on that issue further

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permitting the parties to lead further evidence. The Trial Court following the direction of the First Appellate Court also answered that issue in favour of the Plaintiff.

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8 . The First Appellate Court as it appears from the judgment has approached the matter taking a view that since the Plaintiff is the suitor in the suit for declaration of her right, title, interest and possession over the suit land and the Defendant advances a competing claim that he has the right, title, interest and possession over the same, the onus lies on the Defendant to prove that he has the right, title, interest and possession over the suit land. With such view, the First Appellate Court as would be seen has simply gone through the evidence adduced by the Defendant both oral and documentary and come to a conclusion as quoted hereunder:-

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“In view of the above documentary evidences and oral evidences of D.W.1 and D.W.2, the Defendant proved his right, title, interest and possession over the suit land.”

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Having said so, the First Appellate Court has next proceeded to examine as to the onus which has shifted upon the Plaintiff to prove that the Defendants has any right, title, interest and possession over the suit land has how far been discharged. It’s conclusion at the end of such exercise are the followings:-

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(a) Plaintiff had not adduced any such evidence that soon after the execution and registration of the sale

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deed, the possession of the alleged land was delivered to her;

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(b) the evidence indicates that the Defendant is in possession of the suit land prior to the filing of the suit. The suit land being recorded by the Settlement Authority in the name of the Defendant in the year 1989 presumption as to its correctness sands attached in view of the provision contained in section-13 of the Orissa Survey and Settlement Act;

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(c) the ROR having not been challenged within three years, the Defendant will not be dis-entitled from the possession of the suit land in view of his purchase by registered sale deed dated 14.08.1987;

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(d) the suit is barred by limitation by virtue of the provision contained in Article-58 of the Limitation Act and the suit would not be covered under the Article-65 of the Limitation Act; and

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(e) the suit having been filed on 10.08.2010, when it should have been filed on or before 21.02.1987 is thus barred by limitation.

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9 . The Appeal has been admitted to answer the following substantial questions of law:-

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(1) Whether the First Appellate Court is correct in accepting the Defendant’s case which has its base upon the mutated record of right, over-turning the record of right prepared by the Settlement Authority in the year 1989?; and

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(2) Whether the First Appellate Court has committed the error in law by dismissing the suit filed by the present Appellant (Plaintiff) in view of the preliminary decree passed in O.S. No.32 of 1977 wherein the

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Plaintiff was not a party and when the preliminary decree has been attacked as collusive?

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10 . Heard Mr. P.K. Rath, learned Senior Counsel for the Appellant and Mr. Banshidhar Baug, learned Counsel for the Respondent at length. I have carefully read the judgments passed by the Courts below. I have also perused plaint, written statements and travelled extensively through the evidence both oral and documentary let in by the parties.

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11 . The claim of the Plaintiff as having the right, title, interest and possession over the suit land is based upon the registered sale deed dated 16.04.1958, which has been admitted in evidence and marked Ext.3 executed by Bika Behera in her favour. It is her further case that basing upon that sale deed in the year 1989, the record of right has been published in the settlement operation upon ascertainment of the right, title and interest over the suit land in the above manner. The Plaintiff has attacked the registered sale-deed dated 14.08.1987 (Ext.A) executed by Bishnu Chandra Mohanty and Smt. Basanta Kumari Mohanty, the successors of Kunja Bihari Mohanty, one of the recorded tenants in respect of the suit land measuring Ac.0.88 decimals as void and so also the consequential mutated record of right issued in favour of the Defendant by virtue of order passed in mutation Case No.7789 of 1997, Ext.D, to be invalid as being ordered without any jurisdiction and authority.

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The Defendant’s case is that he has purchased the suit property by registered sale deed from Bishnu Charan Mohanty and Smt. Basanta Kumari Mohanty, which has been admitted in evidence and marked Ext.A and it is said that the suit land stood allotted in favour of his vendors in Title Suit No.32 of 1977. The Defendant claims to have been in possession of the suit land deriving the right, title and interest by virtue of the same and having rightly got it mutated in Mutation Case No.7789 of 1997.

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12. Indisputedly, the land in question originally stood recorded in the name of four persons and they are Bika Behera, Kunja Bihari Mohanty, Lingaraj Moharana and Nagendra Prasad Das. The Plaintiff has proved the plot index, Ext.2; verification of the same with the registered sale-deed Ext.3 executed by Bika Behera in favour of the Plaintiff and also the description of the suit land given in the schedule of the plaint reveals that the suit land is the same land which has been purchased by the Plaintiff from Bika Behera which also derives further support from the evidence of D.W. 1 (Defendant), who has stated that the suit land originally was owned and stood recorded in the name of Bika Behera, Kunja Bihari Mohanty, Lingaraj Moharana and Nagendra Prasad Das under Khata No.179, Plot No.259 measuring Ac.0.900 decimals. The vendors of the Defendant had filed Title Suit No.32 of 1977. By that time, the record of right in respect of the suit land in place was the

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one published in the year 1962; wherein the name of the Plaintiff was not recorded in respect of Ac.0.099 decimals which she claims to have purchased vide Ext.3.So, it is said by the Defendant that the Plaintiff was not a necessary party to the suit and therefore she was rightly not impleaded as party in the said suit i.e. Title Suit No.32 of 1997. In view of the above position, the Trial Court appears to have rightly proceeded to examine as to whether the Plaintiff in whose favour Bika Behera had alienated the suit land would loose her right, title and interest over the suit land by all said developments.

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13 . It is the settled position of law that settlement record of right neither creates nor extinguishes the title in respect of immovable property. Therefore, merely in view of the publication of the ROR in the name of Bika Behera in the year 1962 vide Ext.4, he cannot be reconveyed with the right, title and interest in respect of the suit land, which he by then had already alienated in favour of the Plaintiff by executing registered sale deed, Ext.3 on 15.04.1958. In that view of the matter notwithstanding the publication of record of right in the year 1962 vide Ext.4; wherein the Plaintiff’s name did not appear, she was very much a necessary party to the suit i.e. Title Suit No.32 of 1977 instituted by the vendors of the Defendant for partition of the joint land including the suit land over which Plaintiff had already acquired the right, title and interest by virtue of her

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purchase from Bika Behera under Ext.3. Therefore, the decree passed in Title Suit No.32 of 1977 is not at all binding on the Plaintiff and by that, decree the Plaintiff’s right cannot be extinguished or taken away. The suit having been filed impleading the vendors son of the Plaintiff namely Ghana Behera and the decree passed therein under the circumstance thus has to be held to be collusive one.

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14 . In the settlement operation, the record of right finally published in the year 1989 shows the recording of the name of the Plaintiff. The mutation of the suit land in favour of the Defendant is after publication of the said record of right in the settlement. The said final record of right published in the settlement operation in the year 1989 was not challenged by the Defendant before the appropriate forums known to law even though the Defendant claims to have purchased the suit land on 14.08.1987 vide Ext.A. The mutation case record being verified by the Trial Court, it has been found out that the Defendant was the Petitioner, who had sought for mutation. The Plaintiff was also not impleaded as a party therein. The mutation does not reveal as to how the land having been recorded in the name of the Plaintiff in the final settlement record of right stood overturned necessitating the recording of the same in the name of the Defendant. It is thus not said as to how said ROR of settlement of the year 1989 has no value in the eye of law and,

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therefore, the correction was done. In the said mutation proceeding, Ac.0.088 decimals of land from out of Ac.0.099 decimals which is the purchased land of the Plaintiff has been deducted and recorded in the name of the Defendant vide mutation ROR, Ext.C.

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Admittedly, the Plaintiff is the first purchaser who had purchased the suit land from Bika Behera, one of the original recorded tenants and co-owners. The Defendant is the subsequent purchaser who purchased the suit land from Bishnu Charan Mohanty and Smt. Basanta Kumari Mohanty. Another important fact comes to the fore here is that though the land purchased is to the extent of Ac.0.088 decimals through Ext.A, the rent receipts proved, Ext.E and Ext. E/1 reveal that rent has been paid only in respect of Ac.0.83 decimals. After the mutation still Ac.0.011 decimals of land stands recorded in the name of the Plaintiff, which is on the basis of the registered sale deed executed by Bika Behera in her favour vide Ext.3 and nothing-else as she had no right over the property prior to the purchase vide Ext.3. Thus, on the totality of the evidence, it would be right to conclude that the Defendant has no right, title and interest over the suit land. In view of all these aforesaid, the first substantial question of law stands answered in favour of the Plaintiff. Such answer being rendered to the first substantial question of law; the other two consequently receive their

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answers also in favour of the suitor-Plaintiff, which in turn leads to restore the judgment and decree passed by the Trial Court in setting aside the judgment and decree passed by the First Appellate Court.

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15 . In the result, the Appeal stands allowed. The judgment and decree dated 11^th December, 2015 & 26^th December, 2015 respectively passed by the learned Senior Civil Judge, Bhubaneswar in C.S. No.1385 of 2010 in decreeing the suit filed by the Plaintiff in granting the reliefs as stated therein are hereby restored and those passed by the First Appellate Court stand set aside. 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: 09-Feb-2024 10:57:17

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RSA No.40 of 2023

Jyotshnamayee Kanungo v. a. Koramani Patra

Case brief

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Jyotshnamayee Kanungo v. a. Koramani Patra

Case brief

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