Himadri Mahapatra Vs Sukanta Kumar Mahapatra

HIGH COURT OF ORISSA : CUTTACK RSA NO.422 of 2023

In the matter of Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree passed by the learned 1^st Additional District Judge, Kuchinda in RFA No.13 of 2018 in confirming the judgment and decree passed by the learned Senior Civil Judge, Kuchinda in Civil Suit No. 48 of 2011.

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Himadri Mohapatra :::: Appellant.
-:: VERSUS ::-
Sukanta Kumar Mohapatra & Others :::: Respondents .
Advocate(s) who appeared in this case by hybrid arrangement
(virtual/physical) mode.
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For Appellant … M/s.Gautam Mishra, Sr. Advocate,
M. J.R. Deo, Advocate
For Respondents … --- --- ---
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CORAM :
MR. JUSTICE D.DASH
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Date of Hearing: 02.01.2024 :: Date of Judgment: 08.01.2024
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D.Dash,J . The Appellant, by filing this Appeal, under Section-100 of the

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Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Kuchinda in R.F.A. No.13 of 2008.

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The Appellant as the Plaintiff had filed C.S. No.48 of 2011 in the Court of learned Civil Judge (Senior Division), Kuchinda arraigning the Respondents as the Defendants. The suit was for declaration of right,

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title and interest over the suit land and permanent injunction. The suit having been dismissed by the Trial Court, the Appellant as the unsuccessful Plaintiff had carried the Appeal under section 96 of the Code, which too has been dismissed.

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2 . For the sake of convenience, in order to avoid confusion and bring

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in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

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3. Plaintiff’s case is that she inherited the suit land from her mother and was in cultivating possession of the same. She was residing alone when her sons were serving outside. It is stated that she being an illiterate lady knows only how to write her name. The Defendant No.1 requested the Plaintiff to give her land for cultivation on payment of rent of Rs.3,000/- per annum. The Plaintiff accepted the request and accordingly executed the document at Kuchinda. According to the case of the Plaintiff, the document had already been drafted and it was for handing over the land for cultivation to the Defendant No.1 for two years on an agreed annual rent of Rs.3,000/- In the year 2008, the Defendant instead of paying the rent requested the Plaintiff to give some time. The Plaintiff suffered from arthritis and underwent treatment in the year 2009-2010. She recovered from the ailment in the year 2011 and approached the Defendant No.1 to pay her the sum of Rs.9,000/-, which was again deferred by the Defendant No.1. On 26.07.2011 the Plaintiff

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Page 2 of 7

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came to know that the Defendant No.1 was going to install a patrol pump on the suit land. So, the Plaintiff requested the Defendant No.1 not to proceed with the same. It was then found from the statement of the Defendant No.1 that he has obtained a deed of lease for a period of thirty years from the Plaintiff by taking advantage of her ignorance, illiteracy and by way of misrepresentation. The matter was reported at Kuchinda Police Station which was, however, of no avail. The Plaintiff, therefore, was compelled the suit for declaration of her right, title and interest over the suit land with further prayer to declare the lease deed dated 12.02.2008 as null and void as permanent injunction.

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4 . The Defendant No.1 in the written statement stated that in the year 2008, he was on search of land for installation of a patrol pump. He accordingly, gave the proposal to the Plaintiff for leasing out the said land for a period of thirty years for the purpose. Accordingly, the lease deed was prepared under the instruction of the Plaintiff and it was

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finally executed by her and registered. The Plaintiff also sent the letter of consent to the Indian Oil Corporation Ltd. (IOCL-Defendant No.2) for opening an outlet on the suit land by the Defendant No.1. It is also stated that the Plaintiff applied before the Tahasildar for conversion of the suit land to Gharabari Kissam and deposited the fees for such conversion. The Defendant No.1 claims to have been paying the rent as agreed upon @ Rs.3,000/- per month from February, 2008. The

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Page 3 of 7

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Defendant No.2 allotted the dealership in favour of the Defendant No.1 and the Defendant No.1 investing huge sum has installed the patrol pump over that. It was asserted by Defendant No.1 that he had never taken advantage of the ignorance of the Plaintiff and her illiteracy and had obtained the lease deed by way of misrepresentation. All those were done by the Plaintiff with full knowledge.

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5 . The Defendant No.2 in their written statement have stated that

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having verified the deed of lease of the land in question and with the consent of the Plaintiff, they have given the dealership to the Defendant No.1 following the rules.

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6 . On the above rival pleadings, the Trial Court framed as many as eight issues. Taking up Issue No.6 as to the claim of the Plaintiff concerning the prayer advanced by the Plaintiff that the lease deed dated 12.02.2008 is null and void as also not binding on her, upon examination of evidence and their analysis, the finding has been rendered against the Plaintiff in refusing to hold the registered lease deed (Ext.2) as void and inoperative.

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Inconsonance with the said finding, the Trial Court recorded the finding on the other issues and finally dismissed the suit.

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The unsuccessful Plaintiff having carried the First Appeal; the

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First Appellate Court on reappreciation of evidence on record independently at its level has affirmed the findings of the Trial Court.

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7 . Mr. G. Mishra, learned Senior Counsel for the Appellant

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submitted that the Courts below ought not to have dismissed the suit in entirety and instead the right, title and interest of the Plaintiff over the suit land ought to have been decreed. He further submitted that even though the findings of the Courts below are concurrent to the effect that

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the lease deed is not the outcome of fraud and misrepresentation, the same is untenable as it has arisen from perverse appreciation of evidence on record. He further submitted that when in the deed of lease, no period has been fixed on the basis of the admitted right, title and interest of the Plaintiff over the suit land, the Courts below ought to have moulded the reliefs employing the provisions contained in Order-7 Rule-7 of the Code in granting the relief of recovery of possession of the suit land. He, therefore, urged 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 Courts below.

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9 . The fact that the Plaintiff has the right, title and interest over the suit land is not in dispute at all. When the Plaintiff claims that the lease deed (Ext.2) has been obtained from her taking advantage of her ignorance, illiteracy and by way of misrepresentation, the Defendants have stoutly denied the same.

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Page 5 of 7

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The Courts below, therefore, have very rightly proceeded first to decide that issue which is the pivotal one for the suit. The least deed (Ext.2) is a registered one. The Courts below, as it appears, have gone for a detail discussion of evidence on record in ultimately holding that there is ample proof of due execution of the said lease deed by the Plaintiff and even independent under advice from her son, present and a signatory to the deed, followed by its registration. The evidence on record being available that the Plaintiff’s son was very much present during the execution of the lease deed, that belies the case of the Plaintiff that it was taken from her by way of misrepresentation when it is also there in the evidence that a Ward Member of Bhojpur Gram Panchayat was also then very much present. The alternative story as presented by the Plaintiff as regards the arrangement agreed upon in relation to the land in question plainly appears to be a cooked up one. The Plaintiff had gone to Kuchinda to execute the document stands admitted and that son of the Plaintiff is a witness to the said lease deed which is a registered one. With all these evidence on record, this Court is of the considered view that the concurrent findings of the Courts below in favour of due execution and registration of the said lease of deed (Ext.2) are well in order and it has been rightly held that the Plaintiff has failed to establish the case projected that the deed of lease

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as made was not within her knowledge and she had never executed it

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Page 6 of 7

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knowingly as such and that it has been taken out by way of misrepresentation.

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It is there in the evidence of the Plaintiff that the patrol pump is running over the suit land.

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10 . In the wake of aforesaid, the Courts below having non-suited the Plaintiff, this Court is not in a position to accept the submission of the learned Senior Counsel for the Appellant (Plaintiff) that there stands the

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substantial question of law for being answered meriting admission of

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this Appeal.

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

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(D. Dash), Judge.

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Himansu

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Signature Not Verified