Orissa High Court
SA/313/1997 on 23 March, 2021
RSA NO.150 of 2017
03. 23.03.2021 This matter is taken up through hybrid arrangement
(virtual/physical mode).
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 dated 28.01.2017 and 07.02.2017
respectively passed by the learned 3rd Additional District
Judge, Cuttack in RFA No. 96 of 2013/32 of 2014.
By the said judgment and decree, the lower appellate
court has confirmed the judgment and decree passed by the
learned Civil Judge (Junior Division), Salipur in Civil Suit No.
54 of 2012.
2. Be it stated here that the Plaintiff before the Trial Court
had carried the First Appeal under section 96 of the Code as
the Appellant and he having been unsuccessful in both the
courts below has now filed this Second Appeal.
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. The Plaintiff's case is that the suit land as per the sabik
record stood recorded in his name and in the name of his
brother Pahali Mallik sons of Sarat Mallik as well as Karuni
Mallik, s/o- Sadhu Mallik. It is his further case that in an
amicable partition, the same came to be allotted to him and his
brother Pahali and accordingly, it was noted in the remark
column of the sabik record of right as against the land under
plot No. 204. During Consolidation Operation, the land
however came to be recorded under khata No. 31 in the name
of Karuni, S/o- Sadhu, Pahali and Pari (Plaintiff) both the sons
of Sarat Mallik and in the remark column, the possession of
Pahali and Karuni got reflected as against the land under that
plot. It is stated that the Plaintiff with co-sharer Pahali being
the owners were in possession of the suit land. While so
possessing, Pahali sold his share to the Plaintiff by the
registered sale deed dated 29.11.1996 and thus the Plaintiff
became the owner of the entire plot of land which is the suit
land. The Plaintiff denies that Karuni had any right, title,
interest and possession nor his legal heirs and successors i.e.
the Defendant Nos. 1 and 2, the widow and daughter
respectively over the suit land. According to him, Karuni had
managed to record his name in the remark as being in
possession of the suit land by practising fraud upon the
Consolidation Authority. That earlier being not known to the
Plaintiff when it came to his notice on 3.4.2012 as the
Defendant No. 1, S/o- Karuni stated his claim to that effect,
the Suit has been filed.
4. The Defendant No. 1 being the son of Karuni and
Defendant No. 2 being Karuni's daughter contested the suit by
filing the written statement. The daughter of Plaintiff's brother
Pahali being arraigned as Defendant No. 3, she has neither
filed any written statement nor participated in the suit. The
case of Defendant Nos. 1 and 2 in the written statement is that
the Suit is hit by provision of contained in Orissa
Consolidation of Holding and Prevention of Fragmentation of
Land Act, 1972. It is also said that there is no cause of action
for filing the Suit.
The specific case projected by them is that the suit land
is the ancestral undivided Gharabari land of the Plaintiff as
well as the Defendants and they are in possession according to
their share having their residential houses over the same. In
the year 1972, the Settlement record of right was published in
respect of the suit land in the name of all the co-sharers and it
had an erroneous remarked against sabik suit plot No. 204
noting possession of the Plaintiff and his brother which
according to them, ought to have been in favour of Pahali and
Karuni. So it is stated that during Consolidation Operation,
Karuni filed objection case for correction of the said remark as
against the suit plot and on verification and due enquiry, the
Consolidation Authority modified the entry for the remark
column of the ROR as against the suit plot indicating the
possession of Pahali and Karuni. This Consolidation ROR has
been published in the year 1982. They however admit that
Pahali has sold his 50% share to the Plaintiff and he is in
possession of said land which had fallen in the share of Pahali.
The Defendant Nos. 1 and 2 are in possession of the rest area
of the suit land as to the land falling to the share of Karuni.
5. On the above rival pleadings, the Trial Court has framed
as many as five issues. In the backdrop of the case and counter
case of the parties; upon appreciation of evidence both oral
and documentary on record, the Trial Court has answered
Issue No. 4 as to the claim of right, title, interest and
possession of the suit property by the Plaintiff in the negative.
Accordingly, the Plaintiff's suit seeking declaration of right,
title, interest and possession over the suit land situated in
Mouza -Pandi under Khata No. 64, Plot No. 204 at measuring
0.045 dec. (as per 1977 ROR) corresponding to the land under
Khata No.
31, Plot No. 124 measuring Ac.0.045 dec. as per
Consolidation ROR and other consequential relief has been
dismissed.
The unsuccessful Plaintiff having filed the First Appeal
has also been unsuccessful. Hence, this Appeal.
6. Learned counsel for the Appellant (Plaintiff) submits
that the courts below have committed illegality by inventing a
third case in presuming the suit property as the ancestral
undivided joint family property in the absence of pleading and
evidence to that effect and further error has been committed by
holding that for non-proving and accordingly dismissing the
suit. She further submits that since the Consolidation
Authority have no jurisdiction to record the possession of a
party in the remark column, the Courts below ought to have
held that the consequential issuance of Record of Right has no
legal sanctity. These are said to be the substantial questions of
law standing to be answered in this Appeal.
7. Keeping in view the submission made, I have perused
the judgments of the courts below.
8. Admittedly, the suit land under sabik khat No. 64
assigned with plot No. 227 as per the record of right published
in the year 1977 was recorded in the name of Karuni, s/o-
Sadhu, Plaintiff and his brother Pahali both sons of Sarat. It
was a joint ROR. However in the remark column in so far as
the above plot of land is concerned, there was a note of
possession in favour of Pahali and Pari to the exclusion of
Karuni. During subsequent recording of the suit land
has been made jointly in the names of Karuni who happens to
be the father of Defendant No. 1 and 2, Pari, the Plaintiff as
well as his brother Pahali who happens to be the father of
Defendant No. 3. In the remark column of that ROR noting of
as to the possession of Pahali and Karuni finds mention. From
that clear position emergence that it is an ancestral undivided
property of the parties. The Plaintiff's claim over the suit land
is based on amicable partition and it is said that the suit
property had been in his and his brother's share. Having
purchased half share of Pahali in the year 1996, he thus says to
have become the exclusive owner of the entire suit property.
This is merely based on that remark column entry as to
possession of Pahali and himself in respect of the suit land in
the record of right in the name of three. While denying the
above, the Defendants assert that there was no partition in
respect of the suit land. So this factum of partition as pleaded
by the Plaintiff and denied by the Defendant is the contentious
issue. Therefore, the Courts below have gone to analyze the
evidence on record in judging the acceptability of the said
stand. In view of the record position and the relationship
between the parties and in the absence of any such clear and
cogent evidence, the Courts below having found the Plaintiff
to have failed to prove the case of partition, this Court finds no
such infirmity or illegality therein. The lower Appellate Court
has rightly then accepted the name of purchase of 50% share
of Pahali over the suit land. Accordingly, the courts below are
found to have rightly held the Plaintiff to be entitled to his
share as also the share of Pahali leaving the rest portion of the
suit land as resting upon the Defendant Nos. 1 and 2 who are
the heir and successors of Karuni.
09. In view of all the aforesaid, the submission of the
learned counsel for the Appellant (Plaintiff) is hereby repelled.
10. Resultantly, it is held that there surfaces no substantial
question of law in the case meriting admission of this Appeal.
Accordingly, the RSA stands dismissed. No order as to
cost.
.....................
D. Dash, J.
Aks
Heard.
Hearing is concluded.
Judgment is reserved.
.....................
D. Dash, J.
Aks
