Orissa High Court
Laxmidhar Sabat vs Tahasildar on 1 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No..365 of 2013
Laxmidhar Sabat .... Appellant
Mr.B.K. Behera-1, Advocate
-versus-
Tahasildar, Konisi, Ganjam & .... Respondents
Others Mr.G.N.Rout, ASC
for R.1 & 2
Mr.H.K.Rayatsingh,
Advocate for
R.3(a), 3(b), 3(c),
R.4, 5, 6
CORAM:
MR. JUSTICE D.DASH
ORDER
01.12.2021
Order No.
04. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. The Appellant, by filing this Appeal under section 100 of
the Civil Procedure Code (for short, 'the Code'), has assailed the
judgment and decree dated 24.04.2013 and 07.05.2013 respectively
passed by the learned 1st Additional District Judge, Berhampur in
R.F.A. No.19/2013 (R.F.A. No.04/2012 GDC).
By the said judgment, while dismissing the First Appeal
filed by present Appellant under section 96 of the Code, the First
Appellate court has confirmed the judgment and decree dated
27.12.2011 and 11.01.2012 respectively passed by the learned Civil
Judge, Junior Division, Berhampur in Civil Suit No.41 of 2009.
// 2 //
3. 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 Suit.
5. The Plaintiffs' case, in short, is that one Manoj Kumar
Sahu and others were the recorded owners of the land under sabik
khata no.48 plot no.360 measuring in total Ac.0.380 decimals at
Mouza-Madan Mohanpur as per the record of sabik settlement.
From out of the above, in the year 1992, one Rajanai Kanta Sahu
purchased Ac.0.062 decimals of land by registered sale deed and he
continued to possess the same as its owner. In that very year, said
Rajani and his minor son Prabeen sold the land to one Satyabhama
Sahu by executing sale deed on 18.11.1992. Satyabhama having
purchased the land, remained in possession of the same. When the
situation was thus, the settlement operation in the area commenced.
It is stated that during the yadast stage, Satyabhama was the
recorded tenant in respect of the land under sabik plot no.366
measuring Ac.0.045 decimals. But when the final record of right
was prepared, the hal plot number being assigned with no.1424, the
area has been reduced by Ac.0.015 decimals and it has stood at
Ac.0.030 decimals. However, Satyabhama being the owner of
Ac.0.045 decimals of land sold said extent of land from that Sabik
Survey No.366 and Ac.0.17 decimals of land from Survey No.364,
in total Ac.0.062 decimals of land to one Togi Adeya. That Togi
Adeya being thus the owner of the land of Ac.0.62 decimals
remained in possession. On 5.9.2008, he executed a power of
attorney appointing one Manoj Kumar Sahu for alienating the
above extent of land and other properties on his behalf. Manoj thus
being the power of attorney holder, on 10.09.2008 sold the subject
// 3 //
matter of this suit to the Plaintiff. For the same, he executed a
registered document on 10.09.2008. The Plaintiff then filed
mutation case before the Tahasildar for recording of the land which
he purchased in his name. The Tahasildar, however, has ultimately
passed an order to record Ac.0.030 decimals in favour of the
Plaintiff. The Tahasildar specifically then to record the balance
Ac.0.015 decimals of land which the Plaintiff had purchased in his
name. Thus, the Plaintiff claims that he being the rightful owner in
possession of Ac.0.045 decimals of land, his right, title and interest
over the same be declared and accordingly, direction be given for
correction of the Record of Right by enhancing the area.
The Defendants projected their case in support of the
position as are reflected in the settlement record of right. It is stated
that Satyabhama being recorded with Ac.0.030 decimals of land,
she had no authority/competency to sell land of Ac.0.045 decimals,
which has been affirmed post sale in the record of right since at the
time of sale, the settlement operation was in progress.
6. On the above rival claim, the Courts below having framed
issues as to the claim of ownership and title of the Plaintiff over the
suit land and as to the correctness of the record position relating to
the land, have answered those against the Plaintiff. The suit,
therefore, being dismissed by the Trial Court, the same has again
been confirmed by the First Appellate Court.
8. Mr.B.K. Behera, learned counsel for the Appellant
(Plaintiff) submits that this Plaintiff is a bona fide purchaser of the
suit land for value and he having purchased the land measuring
Ac.0.045 decimals of which his vendor was actually the owner
// 4 //
though not shown in the record of right, there was no justification
for the courts below to say that the Plaintiff has no title over the
land measuring Ac.0.045 decimals. He further submits that the
courts below have given much reliance/importance to the
settlement record which on the face of the plaint averments and
evidence ought not to have accepted as correct in every respect
when the Civil Court is not bound by it. According to him, the
above are substantial questions of law standing to be answered in
this Appeal.
9. Keeping in view the submission, as above, I have carefully
gone through the judgments passed by the Trial Court as well as
the First Appellate Court.
10. The Plaintiff is a purchaser of the land from Togi Adeya,
the original Defendant No.1 through his power of attorney holder,
namely, Manoj Kumar Sahu. The power of attorney executed by
Togi in favour of Manoj is Ext.3 and it is for sale of land measuring
Ac.0.045 decimals out of Ac.0.380 decimals covered under Survey
No.366. Ext.4 is the patta in respect of the suit plot no.1424
standing in the name of Satyabhama Sahu. In that Ext.4, the extent
of land finds mention as Ac.0.03 decimals against suit plot
no.1424. The yadast report (Ext.5) in respect of plot no.1424
reveals that the extent was the same. That Ext.4 has been finally
published on 01.04.1996. There is no other evidence on record to
show that Satyabhama had ever challenged the said recording
contending/asserting that the extent of land under plot no.1424 be
not Ac.0.030 decimals but Ac.0.045 decimals. With the above
petition in the records, said Satyabhama has sold the property to
// 5 //
Togi. The sale deed standing in favour of the Plaintiff also reveals
that as per the records, the extent of land is Ac.0.030 decimals
under plot no.1424 which also is the extent of land under plot
no.1424 as indicated in the certified copy of the yadast report
(Ext.5). Thus, it is clear that the vendor's vendor of the Plaintiff,
namely, Satyabhama being the recorded owner of the land under
Survey No.1424 measuring Ac.0.030 decimals under khata no.501
had transferred the land to that extent to her vendor, who in turn,
has again transferred to the present Plaintiff.
On the face of the above evidence on record, the Courts
below are found to have committed no mistake in holding that the
Plaintiff has failed to prove his title over the land measuring
Ac.0.045 decimals under plot no.1424 and accordingly the Plaintiff
being non-suited, this Court is not in a position to subscribe to the
submission of the learned counsel for the Appellant (Plaintiff) that
there arises any substantial question of law meriting admission of
this Appeal.
11. In the result, the Appeal stands dismissed. However, no
order as to costs is passed.
(D. Dash),
Judge.
Basu
