Santosh Kumar Das vs Bhaskar Chandra Behera & Others
2021 Latest Caselaw 3790 Ori

                          HIGH COURT OF ORISSA : CUTTACK

                                       R.S.A. No.340 of 2019
             In the matter of an appeal under section 100 of the Code of Civil
       Procedure assailing the judgment and decree dated 16.08.2019 and
       29.08.2019 respectively passed by the learned District Judge, Balasore in
       R.F.A. No.166 of 2016 confirming the judgment and decree dated 12.07.2016
       and 23.07.2016 respectively passed by the learned Senior Civil Judge,
       Balasore, in C.S. No.548/2010/894 of 2014.
                                        .........

               Santosh Kumar Das                                           ...      Appellant.

                                              -VERSUS-

               Bhaskar Chandra Behera & others                             ...      Respondents.

Advocate(s) who appeared in this case by Hybrid Arrangement (Virtual/Physical) Mode:-

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

                    For appellant                  ...       Mr.B.H.Mohanty,
                                                           Senior Advocate
                                                           M/s.D.P.Mohanty, R.K.Nayak,
                                                           T.K.Mohanty, P.K.Swain and
                                                           M.Pal
                                                .........
     PRESENT:
                          THE HON'BLE MR. JUSTICE D.DASH

---------------------------------------------------------------------------------------------- Date of Reserve:23.02.2021 : Date of Judgment:18.03.2021

---------------------------------------------------------------------------------------------- D.Dash,J. The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), has assailed the judgment and decree 16.08.2019 and 29.08.2019 respectively passed by the learned District Judge, Balasore in R.F.A. No.166 of 2016. By the said judgment and decree,

the lower appellate court has confirmed the judgment and decree dated 12.07.2016 and 23.07.2016 respectively passed by the learned Senior Civil Judge, Balasore, in C.S. No.548of 2010/894 of 2014.

The Respondent Nos.1 to 8, as the Plaintiffs had filed the suit arraigning the Appellant as the principal Defendant, i.e, Defendant No.1 against whom the reliefs had been claimed and he alone had contested the suit. The other Defendant, i.,e, Defendant No.2 although had filed the written statement, yet did not nor participate in the hearing of the suit. During the pendency of the first appeal, said Defendant No.2, who has been arraigned as Respondent No.9 having died leaving no legal representatives, her name stood expunged.

2. For the sake of convenience and clarity as also to avoid confusion; the parties hereinafter have been referred to in the same rank as assigned to them in the original proceeding before the Trial Court i.e. the Appellant as 'the Defendant No.1' whereas the Respondents as 'the Plaintiffs'.

3. Rival case of the parties are as follows:-

Plaintiffs' case is that the immovable property described in Lot No.1 of the plaint vide RMS Plot No.917 and 914 corresponding to the land under MS Plot No.844 and 885 as also CS Plot No.389 and 391 had been purchased by the Plaintiff No.3 by registered sale deed admitted in evidence and marked as Ext.6.

The immovable property described in Lot No.2 of the plaint which stood recorded under RMS Plot No.1336, 1322, 1733 correspond to MS Plot No.706, 707, 708 and 1341 which further correspond to CS Plot

No.483, 484, 492, 443. This property is said to have been purchased by Plaintiff Nos.1 to 6 by registered sale deed which has been admitted in evidence and marked as Ext.7. It is further stated that the land under RMS Plot No.1214 corresponding to MS Plot No.1172, further corresponding to CS Plot No.806 described in Lot No.3 of the plaint was also purchased by Plaintiff Nos.7 and 8 by registered sale deed under Ext.5.

The plaintiffs have come up with the case that one Bhabani Prasad Das was the common ancestor of the Defendant Nos.1 and 2. He died leaving behind his sons, namely, Jadaba, Purusottam, Chandramohan, Kumuda and Sudhakar. Defendant No.2 is the only legal heir and successor of Jadaba. Purusottam died leaving behind his sons, namely, Sashi, Sasanka, Sudhir and Santosh (the Defendant No.1).

In O.S. No.95 of 1950 of the Court of the Sub-ordinate Judge, Balasore, the suit land with other properties of the family constituting of the legal heirs and successors of Bhabani Prasad Das were the subject matter. It was a suit for partition. The Defendant Nos.1 and 2, Purusottam and others were parties therein. To be more specific, the Defendant No.2 was the Plaintiff and Defendant No.1 was the Defendant No.8 in the said suit. The suit stood partly decreed. So, the Defendant No.2 being aggrieved by the same, had filed First Appeal No.71 of 1952 before this Court. The said First Appeal had been disposed of by holding the suit land described in Schedule-B of the said plaint as liable for partition and 1/5th share from out of that was allotted in favour of the Defendant No.2, who was the Plaintiff therein. Moreover, the extent of land of Ac.10.00 of the land described in Schedule- Kha of the written statement therein was recorded in the name of the husband of Defendant No.2 and the first wife of her husband. That decree was made final wherein the land involved in the present suit and other lands standing

recorded under CS Khata No.30 was allotted to the share of Defendant No.2. On her subsequent move, she had been delivered with the possession of the same in an Execution Proceeding.

It is the further case of the plaintiffs that from the properties, as above allotted in favour of Defendant No.2, lands measuring an extent of Ac.1.72 decimals under MS Khata No.52 was recorded in the name of Gajendra Prasad Mohanty during major settlement operation. This is said to be without the knowledge of Defendant No.2. On the death of said Gajendra Prasad Mohanty, his widow Manorama, taking advantage of the said erroneous recording, has sold the lands under MS Khata No.52 to the Defendant No.1 by registered sale deed dated 16.06.1978. Consequent upon said purchase, the land has been mutated in favour of Defendant No.1 followed by issuance of the record of right. It is stated that said preparation of MS ROR, the alienation of the property by Manorama as also the mutation were wholly without the knowledge of the Defendant No.2.

In the year 1993, T.S. No.860 of 1993 was filed by the Defendant No.1 against the Defendant No.2. The relief was for declaration of title and permanent injunction. The suit had been filed in the Court of the Munsif, Balasore wherein the land measuring Ac.1.72 decimals covered under MS Khata No.52 was the subject matter. The order directing the parties to maintain status quo in respect of the suit land therein being passed on an application under order 39 Rules 1 and 2 of the Code, the Defendant No.2 had filed an application for appointment of receiver, which was allowed. An order therein was passed that the said property be put to auction between the parties. The Defendant No.1 had questioned said order by carrying a Revision to the court of the learned District Judge. The revision was dismissed on 20.10.2001. An attempt being made by Defendant No.1 for review of the said

order first failed. However, an another attempt being made for restoration of the review application although succeeded, later on said review application stood dismissed on merit. Defendant No.2 then filed an application for fixing the date of auction. The date was so fixed to 21.04.2007. At that juncture, the Defendant No.1 approached this Court by filing W.P.(C) Nos.5614 and 2764 of 2007. Both the writ applications stood dismissed and the Trial Court was directed to expeditiously dispose of the suit. When the matter stood thus, the Defendant No.1 being the Plaintiff of that T.S. No.860 of 1993, opted to withdraw that suit. In the said suit, the Defendant No.2 had filed an application for amendment of the written statement for introduction of counter claim. That, in the circumstances, however, was disallowed. So, she had filed W.P.(C) No.65 of 2009. The Plaintiffs state that being in enjoyment of the suit property involved and allotted to Defendant No.2 in T.S. No.95 of 1950, she has sold the same as described in Lot No.1 of the plaint to Plaintiff No.3 vide registered sale deed (Ext.6); Lot No.2 to Plaintiff No.1 and the predecessor-in-interest of Plaintiff Nos.2 to 6 under registered sale deed (Ext.7) as well as Lot No.3 to Plaintiff Nos.7 and 8 under Ext.5, the registered sale deeds. All those sales she made were for valuable consideration which she received from the respective vendors and they were put to possession of the property in question pursuant to the said transactions of sale and as such have been in possession. The Plaintiff No.3 when applied for preparation of separate ROR in respect of the lands in his name as also in the name of Plaintiff Nos.1 to 6, the Settlement Authorities did not, however, allow it projecting the ground of prevalence of the order of status quo passed in T.S. No.860 of 1993. However, the land purchased by Plaintiff Nos.7 and 8 was mutated in their name on 27.10.1992 before the institution of the suit. However, as the Defendant No.1 created disturbance in the peaceful

possession of the suit land by the plaintiffs, they filed this suit for declaration of their right, title and interest, confirmation of possession and in the alternative, for recovery of possession, if found to have been dispossessed during the suit as well as for permanent injunction with further prayer for declaration that MS ROR and RMS ROR in respect of the suit land are erroneous and nonest in the eye of law. For the purpose of the suit, the properties described in Lot Nos.1, 2 and 3 stand as the subject matter as described Schedule-B property.

4. The Defendant No.2 filed the written statement supporting the case of the Plaintiffs.

5. The Defendant No.1 coming to contest the suit, apart from taking the technical pleas as to lack of cause of action for filing the suit, maintainability of the suit, misjoinder of cause of action, non-joinder of necessary parties etc, has specifically pleaded that the suit land was never allotted in favour of Defendant No.2 in original suit No.95 of 1950 nor she had been delivered with the possession of the same in the Execution Case of 38 of 1963 in so far as the lands allotted to her in the final decree passed in the suit are concerned. It is his case that the property was all along the property of Gajendra Prasad Mohanty and not that of the Defendant No.2. Accordingly, said Gajendra Prasad Mohanty is said to be in possession of the said property all through during his life time and on his death, his widow has validly sold the land to Defendant No.1 for valuable consideration by executing registered sale deed on 16.06.1978 and she had also delivered the possession of the land thereof. The Defendant No.1 stated that he has been in possession of the suit land since the date of his purchase as it was with his vendor and prior to that, with the original owner Gajendra Prasad Mohanty.

The Defendant No.1 thus claims to have his right, title and interest and possession of the suit land. While not denying the fact that he was a party to the earlier suit, i.e, O.S. No.95 of 1950, his minority is projected as the ground to avoid the said judgment and decree as binding upon him or upon said Gajendra and his legal heir and successor. The Defendant No.1 has alternatively stated to have acquired the right, title and interest over the suit land by virtue of adverse possession having been in continuous possession of the suit land for upward of the prescribed period in a peaceful manner without any interruption from any quarter and to the knowledge of all concerned including the Plaintiffs and Defendant No.2. The suit land since had been mutated in his name, it is stated that the same has been rightly done as he has been the title holder of the land in question. It is his case that the Plaintiffs have absolutely no right, title and interest over the suit land and the sale deeds standing in their favour are of no value in the eye of law and those have not clothed the right, title and interest in respect of the respective portions of land in their favour. The possession of the said suit land by the Plaintiffs pursuant to the so-called sales is also denied.

The Defendant No.2, in her written statement, has supported the case of the Plaintiffs.

6. The trial court, on such pleaded case and counter case framed as many as eight issues. Out of those, the following issues, i.e, Issue Nos.(iv),

(v) and (vi) being important, are stated hereunder:-

"iv) Have the plaintiff no.3 title over Lot No.1, plaintiff No.1 to 6 over Lot No.2 and plaintiff No.7 and 8 over Lot No.3 of schedule 'B' properties?;

v) Are MS and RMS RORs in respect of the suit land wrong and illegal?; and

v) Has the defendant no.1 any right and title over schedule 'B' properties?"

The above issues being decisive in so far as the rival claim of right, title and interest and possession over the suit land is concerned, the Trial Court has taken up all those three issues together for decision and in that approach, in the facts and circumstances, no such fault is attributable.

On going through the evidence, both oral and documentary let in by the parties, the finding of the Trial Court on all those three issues have been rendered in favour of the plaintiffs. The answers to the above issues have led the Trial Court to decree the suit and grant the reliefs as prayed for to the Plaintiffs.

7. Being aggrieved by the said judgment and decree passed by the Trial Court, the Defendant No.1 had filed the appeal under section 96 of the Code. The lower Appellate Court has first of all gone to address the rival contentions in so far as the answers to those three issues are concerned in taking up the exercise as to the examination; whether the answers so recorded by the Trial Court are based on proper appreciation of evidence on record as also backed by law or not.

8. Mr.D.P.Mohanty, learned counsel for the Appellant (Defendant No.1), placing the judgments of the Courts below, submitted that the consecutive records of right having stood against the Plaintiffs without in any way recognizing their claim and finally when the land has been recorded in the name of Defendant No.1 by mutation on the basis of his purchase, the Courts below have completely erred in law by rejecting the claim of the Defendant No.1 and assignment of the reason for non-preferance of a counter claim in the written statement of the Defendant No.1 seeking a decision on

that score in the suit in ignoring the claim of the Defendant No.1 is not at all justified.

He further submitted that the Plaintiffs having never challenged the recording of the suit land in MS record of right of the year 1968 and that having continued in RMS record of right of the year 1997, the Courts below have committed grave error in law by not holding that the suit filed in the year 2010 as grossly barred by limitation. Elaborating the above, he submitted that successive records of rights having stood in the name of the vendor of the Defendant No.1, the courts below ought to have held that the Defendant No.1 is having the right, title and interest over the suit land and is in possession of the same as he is the rightful owner and title holder. He, therefore, submitted that the Plaintiffs ought to have been non-suited. Summarizing the above contentions and drawing the attention of the Court to the substantial questions of law, as stated in paragraph Nos.7 and 8 of the Memorandum Of Appeal, he urged for admission of the Second Appeal on the following substantial questions of law:-

"I) The consecutive record of rights having stood in the name of the Defendant No.1 that too after mutating his name in respect of the suit property on the basis of his purchase, whether the courts below are correct in discarding the claim of the Defendant No.1 on the ground that he has not filed any counter claim to declare his right, title and interest in respect of the suit properties?; II) The M.S. record of rights having been published in the year 1968 in the name of the vender of the Defendant No.1 and the same recording having been continued in the RMS record of rights in the year 1997, whether the courts below are correct in coming to a conclusion that the suit of the year 2010 is not barred under the law of limitation?; and

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III) Successive record of rights having stood in the names of the Defendant No.1 and his vendor, whether the courts below are correct in shifting the onus of proving title in respect of the suit properties on the Defendant No.1 instead of the Plaintiffs."

9. Keeping in view the submission, as above, I have carefully gone through the judgments passed by the Trial Court as well as the lower Appellate Court. Both the Courts have concurrently recording the answers to the crucial issues as above stated in favour of the Plaintiffs.

The certified copy of the oldest available record of right of the suit land is Ext.1. The subsequent records of rights are Exts.2 and 3. It reveals from Ext.1 that the suit land was then under the intermediary status standing in the name of one Bhaga Charan Devmandal and Samanta Bhabani Prasad Das. Thereafter, it has come to be recorded in the name of Gajendra Prasad Mohanty. The Plaintiffs having proved the plot index vide Ext.18, it appears therefrom that the lands under MS Khata No.52 under Ext.2 correspond to the lands under CS Khata No.30 vide Ext.1. These lands were the subject matter of the earlier suit, i.e, O.S. No.95 of 1950 giving rise to F.A. No.71 of 1952. The judgments passed thereudner have attained finality. The Defendant No.2 finally been found to be entitled to be 1/5th share over the property as described in Schedule-B of the plaint therein and further land ad measuring Ac.10.00 out of Schedule-Kha of the written statement stood in the name of her husband and his first wife Hemalata. Proven records on verification makes the picture clear that the suit land had been allotted in the final decree to Defendant No.2 towards her share and she has been delivered with the possession of the same in an Execution Proceeding which had been levied for obtaining the possession of the specific lands which had fallen to the share of the Defendant No.2.

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The Defendant No.1 has sought to avoid the said judgment, final decree as also the order of delivery of possession in the Execution Proceeding on the ground of his minority during then basing upon a High School Certificate. Admittedly, in that suit the father of the Defendant No.1 was also a party being a major. to the said suit. Admittedly, this Defendant No.1 was not shown as a minor but he had been arraigned as a party being major. Be that as it may, the father of the Defendant No.1 was very much a party to the suit and he was contesting the same all throughout. It is not the case that father of this Defendant No.1 was having any interest adverse to his son. Fact remains that the Defendant No.1, on attaining majority, has never challenged the said judgments, final decree and the orders passed in the Execution Proceeding as void to have been passed during his minority and as such he have not been duly represented therein. Such a case is for the first time being projected in the written statement filed in the present suit. It appears from the proven records, i.e, Ext.16 that the delivery of possession of the suit land was made to the Defendant No.2 on 30.12.1963. Accepting the claim of Defendant No.1 that he was born in the year 1946, in the year 1963, his age comes to be 17+. But since then he has not taken any step in levying any proceeding in questioning the outcome of all those legal proceedings urging that those are not binding on him. In that view of the matter, now in the present suit, there remains no scope for the Defendant No.1 to avoid those judgments, preliminary decree, final decree and the order of delivery of possession talking recourse to the projected minority during then.

It is the settled position of law that a decree obtained against a minor by fraudulently describing him as major is voidable and not void and that decree has to be annulled by levying a suit with the said prayer within the period prescribed in law. The situation, however, is different if the decree is

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obtained against a minor described him as such without being duly represented by a guardian ad-litem, in which case, the decree stands as void. The case at hand is covered by the former proposition. The other glaring fact which has positive bearing and relevant in this connection which cannot be lost sight of is that the suit, i.e, T.S. No.860 had been filed by the Defendant No.2 in the year 1993 as against Defendant No.2. That has, however, at the end has yielded no fruitful result for the Defendant No.1. In that view of the matter, there remains absolutely no case for the Defendant No.1 to question the final result in O.S. No.95 of 1950 and all other proceedings arising therefrom uptil culmination by delivery of possession of the suit in the Execution Proceeding. At the cost of repetition, for better appreciation, it is stated here that the suit of the year 1950 was between Defendant No.2 and her other co-sharers wherein the Defendant No.1 and his father were parties. The above discussion thus finally provides the answer that the Defendant No.2 was having the right, title and interest and possession of the suit land notwithstanding the RORs which are projected as the triumph cards by the Defendant No.1.

It is the settled law that in a suit based on antecedent title when the Courts find the same to be in favour of the plaintiff and also finds him/her to be in possession over the suit land, even if he/she does not call in question the wrong recording of the said land in the settlement operation, he/she cannot be shown the door of exit and thus non-suited when he/she comes with a suit for declaration of right, title and interest and confirmation of the possession in respect of the suit land; based on those records of rights as those neither create title in favour of person so recorded with not have it nor does those extinguish the title of the true owner in respect of the said land covered under the ROR. In the given case, the possession of the suit land being

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delivered to the Defendant No.2 in the Execution Proceeding, the presumption stands drawn as to its continuance which, having not been so rebutted, in this case by adducing clear, cogent and acceptable evidence, the subsequent act of delivery possession of the land to her vendors and its continuance has thus to be so presumed.

10. The only question now remains to be ascertained as to if the Defendant No.1 has proved his right, title and interest over the suit land on the basis of the purchase and possession as also the prior possession of his vendor and her predecessor-in-interest, i.e, Gajendra Prasad Mohanty being tacked together. The claim here is that he acquired the title over the suit land by virtue of Amalnama Patta, Raffa and Tenancy Ledger prepared to that effect. But, here, the case of the Defendant No.1 is not that on payment and acceptance of rent, tenancy in respect of the suit land was created in favour of Gajendra Prasad Mohanty and that ripened into occupancy raiyati right by subsequent recognition of the State in that regard in accepting the rent. It is rather the case of the Defendant No.1 that on the basis of Amalnama Patta, possession was reclaimed and consequent upon submission of Raffa followed by vesting, Tenant Ledger was opened. None of these documents, however, have been brought on record. In this situation, the irresistible conclusion stands that Defendant No.2 was having the right, title, interest and possession over the suit land by virtue of the Civil Court Decree attaining finality and those being so carried out in the field by the order in the Execution Proceeding. It is also not pleaded as to when the vesting of the land took place. No such document has also been provided to show that from the year 1963, upon the publication of the MS ROR (Ext.2), Gajendra was paying rent to Ex-Intermediary or State.

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It is seen that the lower Appellate Court, upon elaborate discussion of the evidence and their appreciation in the backdrop of the respective case of the parties, further analyzing the position of law holding the field in great detail did commit no mistake in holding that Gajendra had no right, title and interest over the suit land and the record of rights standing in his name is not worth the paper written on.

The claim of acquisition of title by virtue of adverse possession, in the facts and circumstances as those emanate from the evidence on record, has rightly been negatived.

11. For the aforesaid discussion and reasons, this Court is not in a position to accept the submission of the learned counsel for the Appellant (Defendant No.1) that any substantial question of law surfaces in the case meriting admission of this appeal.

12. In the wake of aforesaid, the appeal, stands dismissed. In the peculiar facts and circumstances, however, there shall be no order as to costs.

..........................

D. Dash, J.

Orissa High Court, Cuttack Dated the 18th day of March, 2021/ B.Nayak .