Orissa High Court
Gita Mishra vs Unknown on 19 March, 2021
HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO. 318 OF 2019
From the judgment passed by the learned District Judge,
Jagatsinghpur in RFA No.39 of 2010 (89 of 2014) confirming the judgment
and decree passed by the learned Civil Judge (Jr. Division), Jagatsinghpur
in T.S. No. 183 of 1986.
.........
Gita Mishra :::: Appellant.
-:: VERSUS ::-
Premananda Mishra & Others :::: Respondents.
For Appellant :::: M/s. Bhaktahari Mohanty,
Sr. Advocate,
D.P.Mohanty,T.K. Mohanty,
P.K. Swain, M. Pal,
Advocates.
For Respondents :::: --- --- ---
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
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Date of Hearing :: 15.03.2021 :: Date of Judgment :: 19.03.2021
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The Appellant by filing this Appeal under Section-100 of the
Code of Civil Procedure (hereinafter called as 'the Code') has assailed
the judgment and decree dated 16.07.2019 & 30.07.2019 respectively
passed by the learned District Judge, Jagatsinghpur in RFA No.39 of
2010 (89 of 2014).
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2. By the said judgment and decree, the lower Appellate Court
has confirmed the judgment and decree passed by the learned Civil Judge
(Junior Division) in Title Suit No.183 of 1986.
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 trial court.
4. Case of the plaintiff is that one Jadumani Mishra was the
owner of the suit land. He had sold the land in Schedule-C which is the
subject matter of the suit to Ram Chandra Mishra, who happens to be the
father of the Plaintiff. Having purchased the land, Ram Chandra became
the owner of the property and possessed the same. He died leaving
behind his son, the plaintiff as his sole heir and successor and thus he
became the owner of the suit property and continued to possess the same
as before. It is sated that the suit land has accordingly been recorded in
the name of the Plaintiff in the Record of Right published in the
Consolidation Operation.
It is the further case of the Plaintiff that the Defendant No.1
has somehow managed to take out the sale-deed from the wife and
daughter of Jadumani Mishra who had no right, title and interest over the
suit property at that point of time. It is stated that the so called sale-deed
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executed by the Defendant Nos.2 & 3 on 27.06.1986 in favour of the
Defendant No.1 has no value in the eye of law as the vendors i.e. the
Defendant Nos.2 & 3 has no subsisting right, title, interest and possession
over the land in question in question in view of the sale made by their
predecessor-in-interest through whom they claim to have derived the
title. The plaintiff claims that the purchasers i.e. Defendant No.1 derived
no title over the suit land on the basis of said sale-deed and the land had
been sold by Jadumani to the father of the Plaintiff for which the wife of
Jadumani and her daughter had nothing to do with the same. The
Defendant No.1 being armed with that sale-deed when attempted to
create disturbance in the peaceful possession of the suit land by the
Plaintiff; the suit with the prayer to permanently injunct the Defendants
from coming over the land in suit and possess the same has come to be
filed by the Plaintiff.
5. The Defendant No.1, contested the suit by filing written
statement. It is stated that the Plaintiff has somehow managed to get the
recording of the suit land in his name during Consolidation Operation by
the order passed in Consolidation Appeal No.317 of 1992 and it is behind
the back of the Defendants by practicing fraud. It is her case that original
land owner Jadumani had never executed any sale-deed in favour of
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Rama Chandra Mishra; the father of the Plaintiff at any point of time
during his lifetime. It is also stated that Defendant No.1 had filed
objection in the Consolidation Proceeding for the suit land being
recorded in her name as she is the rightful owner and has purchased the
property from the Defendant No.2 & 3, the legal heirs and successors-in-
interest of Jadumani.
6. The Trial Court on the above rival pleadings framing four
issues has answered all those in favour of the Plaintiff. It has finally been
held that when the Consolidation Record of Right in relation to the suit
land stands in the name of the Plaintiff showing his right, title and
interest as also the possession and when the evidence on record does not
go to show that the Defendant No.1 is in possession of the property, the
Plaintiff is entitled to the relief as claimed.
7. The unsuccessful Defendant No.1 having preferred the appeal
under section-96 of the Code has not been able to non-suit the Plaintiff.
The lower Appellate Court in addressing the contentions raised before it
and keeping in view the un-challenged Record of Right published in the
Consolidation Operation, further taking into account the value of such
Consolidation Record of Right in the eye of law has affirmed the findings
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of the Trial Court. Consequently, the judgment and decree passed in the
suit in favour of the Plaintiff have received the confirmation.
8. Mr. D.P. Mohanty, learned counsel for the Appellant
(Defendant No.1) submitted that here the Courts below have committed
grave error by decreeing the suit for permanent injunction simplicitor
when the Defendant No.1 has challenged the title of the Plaintiff. That
according to him is the substantial question of law which finds utterance
in the case for its answer. He, therefore, urged for admission of this
Appeal.
9. Admittedly, the Record of Right in respect of the suit land
prepared in the Consolidation Operation stands in the name of the
Plaintiff. Although the Defendant No.1 projects Ext.A, the registered sale-
deed said to have executed Defendant No.2 & 3 in her favour as the
document of title; the same has not been recognized in the Consolidation
Operation. Not it is shown that any further legal remedy as provided in
law has been resorted to in the matter.
The settled position of law stands that the Consolidation
Record of Right holds good for the right, title and interest in respect of the
property so recorded therein in favour of the holder of the said Record of
Right as the Authorities under the Act have all the powers to adjudicate
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and decide upon those disputed questions. This being the position, the
possession in respect of the suit land also stands presumed in favour of the
holder of the said Record of Right which in the given case would be taken
to be with the Plaintiff. Thus it appears that within the ambit and scope of
the suit for permanent injunction, the Courts below did commit no error in
permanently restraining the Defendants from interfering with the
possession of the Plaintiff over the suit land when the said Record of Right
published in the Consolidation Operation has not faced the challenge
althrough since its publication.
Thus, the submission of the learned counsel for the Appellant
as to involvement of substantial question of law for admission of the
Appeal fails.
10. For the aforesaid discussion and reasons, the appeal stands
dismissed as no such substantial questions of law is found to be surfacing
in the case so as to be certified for its admission. There is however no
order as to cost.
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D. Dash, J.
Orissa High Court, Cuttack
Date 19th March, 2021/ Narayan.
