Sunakar Sethi vs Unknown
2021 Latest Caselaw 8337 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                              RSA NO.37 OF 2021
From the judgment dated 27.11.2020 and 4.12.2020 respectively passed
by the learned Additional District Judge, Kendrapara in RFA No.59 of
2017 confirming the judgment and decree dated 25.09.20217 and
21.10.17 respectively passed by the learned Civil Judge, Kendrapara in
Civil Suit No.547 of 2001.


Sunakar Sethi                                        ::::    Appellant.
                                  -:: VERSUS ::-
State of Odisha & Others                             ::::    Respondents.

       Appeared in this case by Video Conferencing Mode.

               For Appellant         ::::     Mr. Soumendra Pattnaik,
                                              Advocate
               For Respondents :::: None
                                      .........

PRESENT :

THE HON'BLE MR. JUSTICE D.DASH

---------------------------------------------------------------------------------------

Date of Hearing- 16.07.2021:: Date of Judgment- 10.08.2021

--------------------------------------------------------------------------------------- D.Dash, J. The Appellant being unsuccessful as the Plaintiff before the Trial Court as also being the Appellant before the First Appellate Court has filed this Appeal. The challenge here is to the judgment and decree dated 27.11.2020 and 4.12.2020 respectively passed by the learned Additional District Judge, Kendrapara in RFA No. 59 of 2017. By the same; the judgment and decree dated 25.9.2017 and 21.10.2017 respectively passed by the learned Civil Judge, Kendrapara in C.S. No. 547 of 2001 non-suiting the Plaintiff-Appellant have been confirmed.

// 2 //

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. Plaintiff's case is that his father was inducted as a tenant in respect of land measuring Ac.0.09 dec. which is the subject matter of the suit and that is from out of the land in total measuring Ac.02.51 dec. in Mouza Kakat under Khata no.19, Plot no.19 belonging to the Deity, Shree Shree Radhagobindajew under Marfatdar Endowment Committee Balabhadra Das Goswami and others. It is stated that there was a permanent lease deed to the above effect which had come into being on 20.4.1943. Plaintiff's father used to possess the land and pay the rent to the Deity. Since during the Hal Settlement Operation proper step could not be taken and as prior to that father of the Plaintiff had lost mental balance for some reason or other, it is said that the suit land has been wrongly recorded in the name of State of Odisha-Defendant No.1. Plaintiff's father died about 30 to 32 years prior to the institution of the suit and since then the Plaintiff claims to be in peaceful possession of the suit land. The Tahasildar-Defendant No. 2 initiated Encroachment Case No. 36 of 1975 for the reason that the suit land stood recorded under Govt. khata and as such in unauthorized possession of the Plaintiff as an encroacher. The Plaintiff had appeared therein. It is stated that he was then given an assurance that the encroachment proceeding would be dropped and suit land would be settled and recorded in his name which however has not happened. In a family partition dated 14.1.1978, the suit land stood allotted to the Plaintiff and accordingly, he claims to have acquired absolute right, title and interest over the same. On 5.9.2001 the Plaintiff having come to know that the Defendant No. 2 is going to settle the suit land in favour of some other person, he filed the suit.

// 3 //

4. The Defendant Nos. 1 and 2 appearing in the said suit contested the same in asserting that the land is a piece of Govt. land and it is valuable one being situated in Kendrapara Town area. The lease deed and other documents relied upon by the Plaintiff are attacked as forged and fabricated. It is stated that the Plaintiff has absolutely no right, title and interest over the suit land.

The Defendant Nos. 4 and 6 who are the brother and other agnatic relation of the Plaintiff contended in their written statement that father of the Plaintiff was never a tenant in respect of the suit land and that there was no such family arrangement and partition as claimed by the Plaintiff. They also said that the suit land was never in possession of the Plaintiff. On the contrary, they claim that Defendant Nos. 6 and his father are in peaceful possession of the suit land. In that way they assert their right over the same.

5. On the above rival pleadings, the Trial Court has framed as many as five issues. Having taken the crucial issues concerning the right, title and interest over the suit land and thus the entitlement of the Plaintiff to the reliefs claimed in the suit for declaration of his title over the suit land and possession; upon examination of the evidence and their evaluation, answers have been rendered against the Plaintiff and finally the suit has been dismissed.

The First Appellate Court being moved by the unsuccessful Plaintiff has confirmed those findings and consequently, the result recorded by the Trial Court in non-suiting the Plaintiff has been upheld.

6. Heard Mr. S. Pattanaik, learned counsel for the Appellant (Plaintiff).

It was submitted by the learned counsel for the Plaintiff that the father of the Plaintiff being the lawful lessee vide Permanent // 4 //

Lease deed dated 20.4.1983 which has been admitted in evidence and marked Ext. 5, the courts below have erred both on fact and law in holding the same is void. It was submitted that on the basis of overwhelming evidence on record as to possession of the Plaintiff over the suit land since the time of his father, the courts below ought to have held the Plaintiff to be the rightful owner in possession of the same and the recording of the land in favour of the Defendant No. 1 in the settlement of the operation ought not have been given any such importance at all; rather it should have been held to be of no such significance in the matter to stand on the way of grant of reliefs prayed for by the Plaintiff. This finding was attacked as suffering from the vice of perversity. According to him, these are the substantial questions of law which arise in the case for being answered in this Appeal.

7. Keeping in view the submission as above, I have carefully gone through the judgments passed by the courts below.

As per the case of the Plaintiff, the suit property was recorded in the name of Sri Sri Radhagobinda Jew Thakur Marfatdar, Endowment Committee, Gokulananda Das and others. Ext. 1 is the record of right of 1930 settlement. The record of right was in respect of the said land and other lands and it indicates that those were 'Niji Dakhal land of Deity'. It is stated by the Plaintiff that his father has requested the Endowment Committee for grant Permanent Lease of the suit land to him as he was having his own land adjoining the suit land. The Committee then having acceded to his request had inducted Plaintiff's father, Bhagaban as a tenant on payment of rent and the permanent lease deed had been executed in his favour Since then amalgamating suit land with the other land in forming a compact block, Bhagaban used it as bari in raising variety of crops till his death, whereafter the Plaintiff claims to have been in possession of the same as // 5 //

before. It is stated that one latrine and three thatched rooms stand over the suit land and he is staying therein with his family. It is further stated that Bhagaban was paying the rent all along till 1968 and thereafter the Plaintiff has been possessing the suit land as his absolute property.

The Permanent Lease Deed dated 27.4.1943 has been admitted in evidence and marked Ext. 5 which is nomenclatured as 'Hata Patta'. It's a plain paper document purported to have been executed by one Gokulananda Das, a member of the said Committee of the Deity.

Admittedly, the said Lease Deed Ext. 5 nomenclatured as 'Hata Patta' is an unregistered one. The Courts below on going through the materials on record and in the touchstone of the pleadings have arrived at conclusion that the same is not admissible in evidence in view of and being hit under the provision of section 49 of the Indian Registration Act read with section 107 of the Transfer of Property Act. It is also not in dispute that the land has never been settled with the so- called permanent lessee as claimed under Ext.5 said to have been executed by one Gokulananda as being the then member of the said Committee of the Deity. Nothing is there on record to show the authority vesting with that Gokulananda for performing that act in dealing with the immovable property of the Deity. This Ext.5, nomenclature as Hata Patta has never been produced before the Competent Authority under the Orissa Estate Abolition Act and that move has also not been made after the said land with other lands of the Deity vested with the State free from all encumbrances by virtue of the coming into force of Orissa Estate Abolition Act. No such record has been proved from the side of the Plaintiff at any point of time.

The Hal Settlement Operation stood completed in the year 1986 and in the final record of right published thereunder, the land in // 6 //

suit has been recorded in the name of Defendant No. 1. Thereafter, it is said that the Plaintiff faced an encroachment proceeding. Next is his evidence that one by-pass road has been running over the suit land and other connecting road runs to the east of the suit land. The running of by-pass road over a part of the suit land being viewed in its proper perspective, the claimed possession of the Plaintiff over the suit land since the time of his father looses all the significance or importance in the direction of establishment of any right whatsoever over the suit land by virtue of possession in the eye of law. The Trial Court on discussion of evidence let in by the Plaintiff has found this Ext.5 and the purported rent receipts vide Ext.6 series to have not been duly proved and various infirmities surrounding those documents have been noticed so as to push those under the thick clouds of suspicion. This Court finds the approach of the Court below to be correct in the matter and the findings rendered accordingly are found to be well in order.

Faced with above said facts and evidence, the Courts below having held that the Plaintiff has failed to establish his legal right over the suit land and has no right to continue in possession as such, have committed no such error in finally non-suiting the Plaintiff.

8. For all the aforesaid, the submissions of the learned counsel for the Appellant that there arises such substantial questions of law for being answered in this Appeal meriting it admission cannot be countenanced with and thus fail.

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

(D. Dash) Judge

Aks