Babaji Baidya @ Babaj Ch. Baidya vs Gouranga Baidya & Others
2021 Latest Caselaw 12353 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            RSA No.371 of 2010


        Babaji Baidya @ Babaj Ch. Baidya ....              Appellant
                                        Mr. D.P. Mohanty, Advocate
                                 -versus-
        Gouranga Baidya & Others                ....        Respondents

                   CORAM:
                   MR. JUSTICE D.DASH

                                   ORDER

02.12.2021 Misc. Case No. 622 of 2010 Order No.

3. 1. This matter is taken up through hybrid arrangement (virtual/physical mode).

2. This is an application for grant of leave to implead the Respondent Nos. 8 and 9 who were the legal representatives of late Shantilata Sethy who had been arraigned in the suit as Defendant No. 7, who has died after disposal of the First Appeal.

3. Heard.

4. Considering the submissions made and on going through the averments taken in the application, leave as prayed for is granted.

5. The misc. case stands disposed of.

                                                        (D. Dash),
                                                          Judge




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Order                         RSA No.371 of 2010
No.


  4.    1.      The Appellants, by filing this Appeal under section 100

of the Civil Procedure Code (for short, 'the Code'), have assailed the judgment and decree dated 02.08.2010 and 24.08.2010 respectively passed by the learned District Judge, Keonjhar in R.F.A. No.30 of 2008.

By the said judgment, while dismissing the First Appeal filed by these Appellants being the aggrieved Defendant No.1 in the suit, under section 96 of the Code, the First Appellate court has confirmed the judgment and decree dated 03.05.2008 and 15.05.2008 respectively passed by the learned Senior Civil Judge, Champua in Civil Suit No.48 of 2006-I.

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 Suit.

3. Heard Mr.D.P.Mohanty, learned counsel for the Appellants in the matter of admission. Gone through the judgments passed by the Courts below.

4. The suit is one for partition with further prayer to declare the registered sale deed dated 19.09.2006 as void. The Plaintiffs' case is that one Nadia Pradhan had three sons and a daughter, namely, Biswanath, Ranka, Petu and Tapa respectively. Sribatsha is the son of Biswanath and as such representing his branch whereas the four daughters, namely, Aruba, Shanti, Sundari and Parbati of Ranka are representing his branch, Petu's branch is extinct as he died before his

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marriage. The legal heirs of Tapa, the daughter of Naida are Babaji, Gouranga and Nakula. This Appellant is the Defendant No.1 whereas his two brothers are the Plaintiffs. The daughters of Ranka are Defendant Nos.3 to 6 and that of Biswanath is Defendant No.2. Defendant No.7 (Shantilata) is the purchaser of the landed property measuring Ac.0.150 decimals which is the suit land from the Defendant No.1 by registered sale deed dated 19.09.2006.

It is stated that Tapa Baidya, being the encroacher of a piece of Government land an encroachment proceeding bearing Encroachment Case No.151 of 1993-94 had been initiated by Tahasildar, Champua and there the land has been settled in her favour. The record of right to that effect has been issued. It is stated that the Plaintiffs and the Defendant No.1 possessed the suit land as their mother spent money for the acquisition of the same. Tapa expired in the year 2001 and Petu died unmarried. He had a desire that his landed properties in Mouza-Sannai be inherited by Defendant Nos.2 to 6 and the suit land be enjoyed by the Plaintiffs and Defendant No.1. So, the lands of Petu at Mouza-Sannai have kept beyond the purview of the suit. The possession of the suit land by the Plaintiffs and Defendant No.1 is said to be as per the convenience without being a partition in metes and bounds. The Defendant No.1, with an ulterior motive, instituted Civil Suit No.29 of 2004 against Sribatsha, the Defendant No.2 in respect of the suit land behind the back of the Plaintiffs and Defendant Nos.3 to 6 and obtained a decree on 15.01.2005 by suppression of facts and mispresenting the same. On the strength of the same, he mutated the suit land in his name which was again without the knowledge of the

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Plaintiffs and Defendants 3 to 6. It is asserted that Defendant No.1, by virtue of the said decree and mutation, has not acquired exclusive right, title and interest in respect of the suit land. On 02.06.2006, when the Plaintiffs wanted to raise Rabi crops on their portion of the suit land, the Defendant No.1 threatened them and asked them not to enter over there in future. There, it was disclosed about the decree and the record of right. The Plaintiffs thereafter made an enquiry and having obtained the certified copies of the decree and record of right further learnt that the Defendant No.1 has again sold Ac.0.150 decimals of land in favour of Defendant No.7 by executing registered sale deed to that effect on 19.09.2006. The sale deed is attacked as vague and fictitious and to have not been acted upon.

5. The Defendants, filing written statement, denied the plaint averments. They pleaded that the suit land originally belonged to the Government and it was settled in the name of Petu, who had also been issued with the record of right. So, the Defendant No.1 has been possessing the suit land exclusively till the date of the acquisition and the only male heir of Petu is Defendant No.1 who is possessing his properties in village Badanai. Defendant Nos.3 to 6 are residing in their respective in-law's house and they have relinquished their rights in respect of the landed properties described in Mouza-Sannai. The Plaintiffs have never possessed any portion of the suit land after the death of Petu. It is said that being ill advised, they filed Civil Suit challenging the ownership of Petu as Petu died unmarried while under care and custody of Defendant No.1. Defendant

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No.2 is the only successor of Nadia and Defendant Nos.3 to 6 have got no interest over the suit land. The Defendant No.1 got a decree in Civil Suit No.29 of 2004 and basing upon that valid decree, mutation has been carried out followed by issuance of patta and rent receipts on payment of rent thereof. Said decree is said to be legal and valid and not at all collusive and to have been obtained by suppression of act, as alleged.

Being the bona fide owner and the recorded tenant, the Defendant No.1 has sold the suit land to Defendant No.7 by registered sale deed dated 19.09.2006.

5. On the above rival pleadings, the Trial Court has framed nine issues. Coming to answer the question relating to the right, title and interest of the Plaintiff over the suit land with the claim of partition and assignment of share to the Plaintiffs and Defendant No.1 over Schedule-A land, the Trial court has answered that the two Plaintiffs and Defendant No.1 have got right, title and interest over the suit land having 1/3rd share each. Then having found the sale deed executed by Defendant No.1 in favour of Defendant No.7 to be valid only to the extent of his share of 1/3rd and not beyond that, while passing the preliminary decree for partition, direction has been given for adjustment of the extent of the properties purchased by Defendant No.7 within the extent of share of her vendor, i.e, Defendant No.1.

The Defendant No.1 being aggrieved by the judgment and decree, having carried the First Appeal, has failed in his attempt to over-turn the findings recorded by the Trial Court as also the final result.

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6. Indisputedly, Petu is the recorded tenant in respect of the suit land. The admitted case stands that Petu died unmarried. The Plaintiffs and the Defendant Nos.1 to 6 are the legal heirs of Petu. The Defendant No.1 has stated that he had acquired the suit land in the name of Petu and he was looking after Petu till his death. The land in question having been settled in favour of Petu, in course of encroachment proceeding under the provision in the law so as to provide some benefit and for welfare of particular persons fulfilling the criterias laid down, even if it is for a moment wholly accepted that it is the Defendant No.1, who was doing everything for Petu in the said encroachment case by spending money from his pocket in getting the application and prayed therein for settlement, the very plea of Defendant No.1 that he had acquired in his name is not cognizable in the eye of law. Even a plea that Defendant No.1 was running after the settlement of the land in the name of Petu and finally achieved it only to benefit himself and other/s which of course has not been so stated here in clear terms is invisible in the eye of law and can never be legally taken cognizance of. The possession of the parties over the land is also immaterial in that case.

In Civil Suit No.299 of 2004, is projected as the triumph card by the Defendant No1 in order to bulldoze the case of the Plaintiffs. Defendant No.1 was the sole defender and on his consent, the decree has been obtained. So, it is not at binding on others except those two, i.e, Defendant Nos.1 and 2 and it cannot thus have any affect in respect of the suit land. This being the position, the Courts below are found to have committed no mistake in passing the preliminary decree for

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partition holding the entitlement of the two Plaintiffs and Defendant Nos.1 of 1/3rd share each with the direction that the land sold by Defendant No.1 to Defendant No.7 who is now represented by Respondent Nos.8 and 9 whom we may say Defendant Nos.7(a) and 7(b) towards the said allotted share of 1/3rd of Defendant No.1.

7. The RSA is accordingly disposed of. No order as to cost.

(D. Dash), Judge.

Basu