Sk.Daud Alli Vs Ramtun Bibi

_________________________________________________________ For Appellant : M/s. Susanta Kumar Dash, K.K. Sahoo, Mr. A. Dhalasamanta, S. Das, N.K. Das & E. Dash, Advocates. (in both the appeals)

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For Respondents: M/s. Suvashish Pattanaik, A. Barik, S.K. Dash & B. Moharana, Advocates. (in both the appeals)

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__________________________________________________________ CORAM

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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17th May, 2024.

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SASHIKANTA MISHRA, J. Both these appeals are directed

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against the common judgment dated 31.10.2016 passed by

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learned Addl. District Judge, Bhubaneswar in RFA No. 3/2 of 2007/2005 (arising out of T.S. No. 611 of 2000) and RFA No. 18/53 of 2006/2005 (aris.ing out of T.S. No. 765 of 2000). Both the civil suits referred above i.e., T.S. No. 611 of 2000 and T.S. No. 765 of 2000 were also disposed by a common judgment and decree passed by learned Civil Judge (Senior Division), Bhubaneswar on 16.11.2004 and 30.11.2004 respectively.

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One Mir Saeed @ Saheed was the plaintiff in T.S. No. 611 of 2000, which he filed for declaration of title and permanent injunction. It was his case that he had purchased Ac.1.070 dec. of land appertaining to Hal Plot No. 71 in Hal Khata No. 196 corresponding to Sabik Khata No.256/5 and Sabik Plot No. 25/775 of Mouza Jadupur from the recorded tenant, Sk. Mahammad Ali (defendant) for a consideration of Rs.25,000/- vide registered sale deed No.5187 dated 22.08.1984. The defendant sold him said land after obtaining necessary permission from the Bhubaneswar Development Authority (BDA) and delivered possession to the plaintiff. Since then, the plaintiff has been in possession of the purchased land with the

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boundary being described in the sale deed as also the map attached to the same. He constructed a house over the purchased land and started residing with his family. He also mutated his name in respect of the property vide Mutation Case No. 3615/1988. While he was in peaceful possession of the purchased land, the defendant, looking at the escalation of cost of the land in the locality as also the fact that there was a Government land to the south of the land purchased by the plaintiff, unilaterally executed a deed of rectification on 28.03.1998 purportedly to correct the mistake in the RSD dated 22.08.1984. He also initiated a proceeding under Section 144 of Cr.P.C. being Criminal Misc. Case No. 552/1999 before the Sub-Divisional Magistrate, Bhubaneswar falsely alleging breach of peace. He also applied for demarcation of his land including the land sold to the plaintiff. The plaintiff having come to know of such clandestine activity of the defendant, filed the suit with prayer that the unilateral deed of rectification dated 28.03.1998 be cancelled under intimation to the SubRegistrar and for declaration of his right, title and possession over his purchased land as per the RSD dated

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22.08.1984 and the sketch map and boundary mentioned therein. He also prayed to permanently injunct the defendant from disturbing his possession.

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The defendant contested the suit by filing written statement. He stated that being an ex-military man he was allotted Ac.5.00 dec. of land from the Government from Khata No. 256/5, which was recorded in his name vide Chaka Khata No.196 in the consolidation operation. He admitted to have sold Ac.0.270 dec. of land to the plaintiff for legal necessity from plot No.71 vide RSD dated 22.08.1984 after obtaining necessary permission from BDA. He also admitted to have delivered possession to the plaintiff but took the specific plea that such delivery of possession was not as per the description of boundary mentioned in the sale deed. He also took plea that he had further land to the south of the land sold to the plaintiff and thereafter there was a Government land. While preparing the sale deed dated 22.08.1984, the southern boundary was wrongly described and the sketch map was also wrongly prepared showing existence of government land adjacent to the eastern side of the purchased land of

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the plaintiff. Since the plaintiff wanted to take advantage of existence of the Government land, the defendant in order to protect his land existing between the land sold to the plaintiff and the government land, executed the deed of correction (rectification) vide document No.1265 dated 28.03.1998 and sent the same to the plaintiff. Since the plaintiff did not respond, he applied for demarcation, which was conducted by the Revenue Inspector of Patrapada on 23.07.1998 in presence of the plaintiff and local gentlemen. Despite such demarcation, the plaintiff tried to encroach upon an area Ac. 0.025 dec. of defendant’s land situate to the south of the plaintiff’s purchased land for which the defendant initiated the proceeding under Section 144 of Cr.P.C.. He also filed the suit being T.S. No. 765 of 2000 for declaration that the plaintiff has no manner of right, title, interest or possession over any portion of the suit land.

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Basing on the rival pleadings, the trial Court framed the following issues.

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1. Whether the suit is maintainable ?

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2) Whether the registered sale deed No.5187 of dt.22.8.84 has been correctly prepared by both parties with respect to extent of land with boundary shown in favour of the plaintiff by the Defendant ?

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3) Whether the defendant is lawfully competent to make an unilateral deed of rectification vide document No.1265 dt.28.3.98 in order to change the boundary of the land sold away to the plaintiff vide document No.5187 of dt.22.8.84 & whether the plaintiff is bound by such unilateral deed of Rectification?

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4) Whether the plaintiff's prayer for cancellation of such unilateral deed of rectification of dt.28.3.98 can be allowed by the Court?

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5) Whether the plaintiff is entitled for a decree of permanent injunction with respect to his purchased land against the Defendant in conformity with the extent of his purchased land with the boundary mentioned in his sale deed?

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6) What else relief the plaintiff is entitled?”

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Sk. Mahammad Ali, on the other hand filed T.S.

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No. 765 of 2000. His case was more or less what he had

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stated in his written statement filed as the defendant in

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T.S. No. 611 of 2000. Additionally, he took the plea that the defendant (Mir Saeed @ Saheed) created disturbance in the suit land during pendency of demarcation case No. 437 of 2000 and erected a green fence covering an area of Ac.0.055 dec. beyond his purchased land measuring Ac.0.270 dec. When Khandagiri Police and local gentlemen interfered and requested the defendant to remove the green fence, he filed the aforementioned suit, being T.S. No. 611

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of 2000 and obtained an order of temporary injunction.

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Taking advantage of such ex-parte order of injunction, the defendant criminally trespassed into the suit land on 30.09.2000 and tried to construct a boundary wall by removing the demarcation stone, for which a criminal case was filed against him being G.R Case No.3569 of 2000. Under such circumstances, Sk. Mahammad Ali as plaintiff, filed the suit with prayer to declare that the defendant has no manner of right, title, interest or possession over any portion of the suit land and for permanently injuncting him from disturbing the plaintiff’s possession over the suit land.

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Mir Saeed @ Saheed being the defendant contested the suit by filing written statement stating more or less the same facts as he had averred in his plaint in the suit filed by him. In addition, it was stated that after 13 years of his purchase of the land, the plaintiff (Sk. Mahammad Ali), looking at the enhancement of the valuation of the land in the suit village, tried to grab the government land existing to the adjoining south of his land. Therefore, without intimating him, the plaintiff (Sk. Mahammad Ali) executed the deed of correction and also initiated the proceeding under Section 144 of Cr.P.C.

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making false allegation that the defendant (Mir Saeed @ Saheed) had constructed a green fence and boundary wall beyond his purchased land.

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On such pleadings, the trial Court framed the

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following issues:

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“1) Whether the suit is maintainable?

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(2) Whether the suit is barred by limitation and also being not maintainable due to want of cause of action?

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(3) Whether the plaintiff is entitled to get a declaration that the Defendant has no manner of right, title, interest or possession over any portion of the suit land such as land measuring Ac.3.050 dec. in Chaka Plot No. 71 appertaining to Chaka Khata No. 196 in Mouza Jadupur?

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4) Whether the plaintiff is entitled to get a decree of permanent injunction against the Defendant with respect to aforesaid extent of suit land? 5) Whether the plaintiff is entitled to any other relief beyond the prayer?

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The parties adduced oral and documentary evidence in support of their respective cases in both the suits. Ext.1 in T.S. No. 611 of 2000 is the RSD dated 22.08.1984 which corresponds to Ext.D marked at the instance of the defendant (Sk. Mahammad Ali). Ext.D/1 is the sketch map of BDA appended to said sale deed.

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The trial Court took up Issue No.2 of T.S. No. 611 of 2000 for determination at the first instance. After analysing the pleadings, oral and documentary evidence

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adduced as also the settled position of law, it was held that the existence of land with boundary shown by the parties with reference to RSD No.5187 of 22.08.1984 is correctly mentioned. On Issue Nos. 3 and 4 of T.S. No. 611 of 2000, the trial Court again took note of the oral and documentary evidence as also the settled position of law to hold that the deed of rectification executed by Sk. Mahammad Ali has no legal sanctity and the plaintiff (Mir Saeed @ Saheed) is not bound by it. Accordingly, the trial Court held that the prayer for cancellation of such deed is to be allowed. On Issue No.5 the trial Court held that the plaintiff had clear right, title, interest and possession over his purchased area of Ac.0.270 dec. and was therefore, entitled to a declaration as such with permanent injunction against the defendant. The other issues were answered accordingly.

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As regards T.S. No. 756 of 2000, the trial Court took up Issue No.3 for consideration at first. It was held that the extent of the land purchased by the defendant (Mir Saeed @ Saheed) is as mentioned in the RSD dated 22.08.1984. Therefore, there is no dispute with regard to the remaining land available in Chaka Khata No.196. As

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such, the defendant Mir Saeed @ Saheed cannot be said to have any right, title, interest or possession over the remaining land measuring Ac.3.050 in Chaka Plot No.71 appertaining to Chaka Khata No. 196. Issue No.4 was answered accordingly.

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On Issue No.2, the trial Court held that the mutation case was instituted in the year 1984 and it was allowed in the year 1990 and therefore, Sk. Mahammad Ali (plaintiff) must be deemed to have had knowledge about the purported mistake in the sale deed since such time. He however, remained silent till the year 2000 and filed the suit. Since the suit was for declaration, the period of limitation is three years, for which the suit was held to be not maintainable being barred by limitation. On the same issue, the trial Court also held that since it was borne out from the evidence that the plaintiff- Sk. Mahammad Ali had already sold away the remaining lands, which he had in the Chaka Khata No. 196 by 2000-2001, there was no cause of action to file the suit.

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On such findings, T.S. No. 611 of 2000 was decreed by directing cancellation of the deed of rectification

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with such order to be intimated to the Sub-Registrar, Khandagiri. Further, the right, title, interest and possession of the plaintiff, Mir Saeed @ Saheed over his purchased land vide RSD No. 5187 of 22.08.1984 was declared and the defendant, Sk. Mahammad Ali was permanently injuncted from disturbing the possession of the plaintiff over such land. T.S. No. 765 of 2000 filed by Sk. Mahammad Ali was dismissed on contest being barred by limitation and having no cause of action.

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Being aggrieved, Sk. Mahammad Ali challenged common judgment passed by the trial Court as mentioned above by filing two separate appeals being RFA No.3/2 of 2007/2005 against the judgment and decree passed in T.S. No. 611 of 2000 and RFA No. 18/53 of 2006/2005 against the judgment passed in T.S. No. 765 of 2000.

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After considering the case of the parties as stated before the trial Court, the findings rendered on each of the issues framed and the grounds raised in appeal, the first appellate Court after hearing both the appeals together, framed the following points for determination:

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“1. Whether the respondent has purchased Ac.0.270 decimal of land appertaining to Hal Plot No. 71 adjoining to southern side road/government land appertaining to Plot No.40 under Ext.1?

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2) Whether the appellant has right to rectify Ext.1 by executing rectification deed, Ext.F unilaterally?

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3) Whether T.S. No. 765/2000 is barred by law of limitation?”

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4. Whether T.S. No.765 of 2000 is maintainable and the appellant has cause of action to file the suit?”

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While answering Point No.1, the first appellate

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Court considered an application filed by the appellant Sk. Mahammad Ali under Order 41 Rule 27 of CPC to call for the original book containing registered sale deed bearing No.5187 dated 22.08.1984 along with sketch map attached thereto in order to ascertain whether the map attached to Ext.1 or the one attached to Ext.D, i.e. Ext.D/1 is authentic. The Court found that Ext.1 contains signature of both parties, whereas the signature of Mir Saeed @ Saheed does not find place in Ext. D/1. The first appellate Court also found difference in the description of the extent of land from which the land was sold to Mir Saeed @ Saheed. Looking at the nature of dispute, the first appellate Court referring to the settled position of law held that in case of conflict between plot number and boundary, the

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latter would prevail. Further, the first appellate Court also held that there being no ambiguity whatsoever in description of land both in Ext.1 as well as Ext.D/1, no extrinsic evidence can be adduced to explain in view of Section 92 of the Indian Evidence Act. He also relied upon the oral evidence of the parties in this regard to hold that the boundary of the purchased land by Mir Saeed @ Saheed was clearly described under Ext.1 and therefore, rejected the petition under Order 41 Rule 27.

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Considering the other evidence, it was held that the trial Court rightly held that Mir Saeed @ Saheed had right, title, interest and possession over his purchased land described in Ext.1 and he is entitled to an order of injunction against Sk. Mahammad Ali. On Point No.2 the first appellate Court held that the unilateral rectification made by Sk. Mahammad Ali is not binding upon the respondent and the said document had no legal sanctity. On Point No.3 it was held that the cause of action, if any, arose on 22.08.1984 but the suit was filed in the year 2000 and therefore, it was barred by limitation. On Point No.4, taking note of the findings rendered by the trial Court, the

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first appellate Court also held that the remaining land having been sold away by Sk. Mahammad Ali he had no cause of action to bring the suit. Thus, both the appeals were dismissed by the impugned common judgment followed by decree.

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Feeling further aggrieved, the appellant, Sk. Mahammad Ali has filed the present second appeals. Be it noted, both Sk. Mahammad Ali and Mir Saeed @ Saheed having died during pendency of the appeals, were substituted by their respective LRs.

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Upon consideration of the grounds raised, the second appeals have been admitted on the following substantial question of law.

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“Whether the appellate Court rightly refused to exercise the power to allow additional evidence by calling for Vol. No.26 of the Book containing R.S.D. No. 5187 dated 22.08.1984 together with the sketch map from the office of the District SubRegistrar to resolve the conflict between Ext.1/a, the map appended to sale deed and Ext.D/1, the map appended to the certified copy of the same sale deed on the contours of the provisions contained in Order XLI Rule 27(b) of the Code of Civil Procedure, 1908?”

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Heard Mr. S.K. Dash, learned counsel for the

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appellants (L.Rs. of Sk. Mahammad Ali) and Mr. Subashish

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Pattnaik, learned counsel appearing for the respondents (L.Rs. of Mir Saeed @ Saheed)

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Mr. Dash would argue that there is no dispute that the RSD vide Ext.1 was executed by Sk. Mahammad Ali in favour of Mir Saeed @ Saheed and also possession was delivered but the land actually possessed by Mir Saeed @ Saheed was subsequently found to be different from the land which Sk. Mahammad Ali had intended to sell there being a mistake in depiction of land both in the sale deed as well in the map. It is for such reason and to enable the Court to have a proper adjudication of the dispute that the appellant had filed an application under Order 41, Rule 27 of CPC with prayer to call for the original book containing the RSD as the same would have adequately resolved the conflict between the map appended to the sale deed and the one appended to certified copy of the same sale deed. Mr. Dash has relied upon the judgment of the Constitution Bench of the Supreme Court in the case of K. Venkataramiah Vs. A. Seetharama Reddy and Ors.¹ to contend that the appellate Court has power to allow such

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1 AIR 1963 SC 1526

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additional evidence as would enable it to pronounce judgment as also for any other substantial cause. According to Mr. Dash therefore, the first appellate Court committed gross illegality in rejecting the application under Order 41 Rule 27 and proceeded to decide the lis on conflicting documents.

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Mr. S. Pattnaik, learned counsel for the respondents on the other hand, would argue that the suit filed by the appellant (Sk. Mahammad Ali) was rightly held to be not maintainable on the ground of limitation and absence of cause of action. As regards the suit filed by Mir Saeed @ Saheed, Mr. Pattnaik submits, both the Courts below have rightly held that the unilateral deed of rectification has no legal sanctity. Under such circumstances, there was no need to call for further evidence in respect of the identification of the purchased land as the first appellate Court considering the evidence on record did not find any ambiguity therein.

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As it appears, the principal ground of challenge to the impugned judgment is the rejection of the application for additional evidence under Order 41 Rule 27

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of CPC. As already stated, such application was filed to call for the original book containing the RSD No. 5187 dated 22.08.1984 along with sketch map attached thereto in order to ascertain whether the map attached to Ext.1 or the one attached to Ext.D i.e., Ext.D/1 is authentic. This Court, firstly notes that no application was filed during the trial to call for such document and no reason has been ascribed as to why such application was not filed even though both the documents i.e. Ext.1 and Ext.D along with Ext.D/1 had been admitted into evidence. Mr. Dash, learned counsel for the appellants would argue that his application was one under Order 41 Rule 27(1)(b) of CPC, which the Court did not appreciate in the proper perspective. For immediate reference, the provision is quoted hereinbelow.

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“ 27. Production of additional evidence in Appellate Court — (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—

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xx xx xx

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(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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xx xx xx”

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Mr. Dash contends, the original book containing

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the RSD marked Ext.1 would have enabled the Court to

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ascertain as to which of the sketch map relating to the suit property was genuine. Since the basic dispute between the parties was with regard to the identity of the land sold to Mir Saeed @ Saheed, it was absolutely necessary to peruse the original document to pronounce judgment. Mr. Dash also contends even otherwise the conflict or controversy relating to the sketch map would have been set at rest for all times to come, which can be treated as a matter included within the meaning of “any other substantial cause” referred to in the provision. Mr. Dash has relied upon the judgment of the Constitution Bench in K. Venkataramiah (supra). In the said judgment, the Constitution Bench, inter alia, held as follows:

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“16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it

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could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27 (1) (b) of the Code.”

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This Court has perused the impugned judgment

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of the first Appellate Court, particularly the grounds cited for rejection of the application. The first appellate Court, firstly held that the appellant having himself obtained certified copy of the RSD along with the map (Ext.D and D/1), calling for the original book and marking the copy as additional evidence again is uncalled for and unwarranted and basing on the said documents and Ext.1 the controversy can be resolved. The first appellate Court proceeded to compare both the documents and found that the map attached to Ext.1 does not tally with Ext.D/1. This

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Court in order to have an independent assessment also perused the documents marked Ext.1, Ext.D and Ext.D/1 available in the copy of the LCR. After verifying the said documents, this Court fully concurs with the finding of the first appellate Court that Ext.D/1 contains an endorsement by the BDA, which is not available in Ext.1. Secondly, as per Ext.1, the land purchased by the plaintiff (Mir Saeed @ Saheed) adjoins the southern side road, whereas as per Ext.D/1 the land of Sk. Mahammad Ali situates on the south of the land purchased by Mir Saeed @ Saheed. That apart, Ext.1 contains signature of both parties, whereas Ext.D/1 contains only the signature of Sk. Mahammad Ali. Further, despite the endorsement by BDA regarding grant of permission, no such order granting permission was produced before the Court. Thus, taking all these facts into the consideration, the first appellate Court was convinced and according to this Court, rightly so, that the document marked Ext.D/1 is a doubtful one. Thus, if the first appellate Court, on the face of the record, found Ext.D/1 as not being a genuine document, obviously there remained no controversy to be resolved by calling for the

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original book from the office of the Sub-Registrar as great sanctity is attached to registered documents, in the present case Ext.1, unless it is proved to be not genuine. This Court therefore, holds that the application under Order 41 Rule 27 was rightly rejected by the first appellate Court.

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Having held so, this Court further finds that the first appellate Court has not remained content by describing Ext.D/1 as a doubtful document but has gone on to look at the boundaries of the purchased land of Mir Saeed @ Saheed as reflected in the RSD marked Ext.1, which is as follows:

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“East- Government, South- Government North- Vendor West- Vendor”

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As already stated, both the parties signed on

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the sketch map appended to RSD. Further, the first appellate Court also took note of the admission made by D.Ws.1 & 2, which proved that the appellant-Sk. Mahammad Ali intended to sell the land adjoining to southern side government land appertaining to Khata No. Plot No.40 and also delivered possession to the vendee after receiving the consideration amount. This Court finds

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nothing wrong in such finding. It has not been shown as to how the finding of the first appellate Court with regard to the other oral and documentary evidence is incorrect. This Court therefore, holds that the finding that Mir Saeed @ Saheed has right, title, interest and possession over his purchased land does not warrant any interference.

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As regards the so called rectification deed, it is well settled that such a deed has no legal sanctity. The right accrued to a party by a registered document cannot be taken away by a deed of cancellation as such a deed is not countenanced in law. Reference in this regard may be had to a judgment of the Division Bench of this Court rendered in the case of Namita Patnaik v. Dillip Kumar Pattnaik,² , wherein it was held as follows:

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“12. It is well-settled that a right accrued by means of a registered document cannot be taken away by a deed of cancellation. Thus, the deed of cancellation, Ext. 1 has no legal basis and cannot take away the admissions made by the respondent in the agreement Ext. A.”

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The courts below must therefore be held to have

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rightly decided that the right of Mir Saeed @ Saheed over

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2 (2001)II OLR 514 : 2001 SCC OnLine Ori 169

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his purchased land could not have been taken away by his vendor subsequently by executing the so-called deed of rectification. Had it been a case of a bonafide mistake having crept into the document which was discovered subsequent to execution of the RSD, it would have been open to the executant to seek its cancellation by filing a suit before the competent Court of law. But executing a deed of rectification and that too unilaterally long after execution of the sale deed that had been acted upon is something that cannot be countenanced in law.

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As regards the suit filed by the appellant Sk. Mahammad Ali, both the Courts below have rightly held that the same was grossly barred by limitation having been filed in the year 2000 in respect of the document executed way back on 22.08.1984. Further, the allegation of the appellant supposedly leading to filing of the suit i.e. encroachment by Mir Saeed @ Saheed over his land beyond the purchased land, has no legs to stand in view of the fact that in view of his own admission that having sold away all his lands to other persons, he has no cause of action to maintain the suit any longer.

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Thus, from a conspectus of analysis of facts and

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law made hereinbefore vis-a-vis the grounds raised and the substantial questions of law framed, this Court finds no reason to interfere with the impugned judgments.

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Resultantly, the appeals are held to be devoid of merit and are therefore, dismissed. There shall no order as to costs.

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…………….…………….

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Sashikanta Mishra,

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Judge

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Orissa High Court, Cuttack

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The 17^th May, 2024/ A.K. Rana, P.A.

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Signature Not Verified

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Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-May-2024 15:20:26

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Sk.Daud Alli v. Ramtun Bibi

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Sk.Daud Alli v. Ramtun Bibi

Case brief

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