RSA/150/2017
2021 Latest Caselaw 4009 Ori

RSA NO.150 of 2017

06. 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, their possession 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 again 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. However, in the remark column, the possession of Pahali and Karuni got reflected as against the land under that plot instead of Plaintiff and his brother Pahali. It is stated that the Plaintiff with his co-sharer Pahali being the owners were in possession of the suit land. While so possessing, Pahali sold his share of land 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 staked 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 hearing of the suit. The case of Defendant Nos. 1 and 2 is that the Suit is hit by provision of contained in Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972. Lack of cause of action for filing the Suit has also been taken as a ground to non-suit the Plaintiff.

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 it. 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 remark against sabik suit plot No. 204 noting possession of the Plaintiff and his brother Pahali 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 of the records and due enquiry in the field, the Consolidation Authority have rightly made the entry for the remark column of the ROR as against the suit plot indicating the possession of Pahali and Karuni as

per the actual position in the field. This Consolidation ROR has been published in the year 1982. They however admit that Pahali has sold his 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 claim that they 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 ad-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 together other consequential reliefs 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 and that is in the absence of pleading and evidence to that effect. She submits that further error has been committed by holding that for non-proving the factum of partition as projected by the Plaintiff, the suit is liable to be dismissed. She further submits that since the Consolidation Authority have no jurisdiction to record the possession of party/parties in the remark column, the Courts below ought to have held that the consequential issuance of Record of Right with said remark entry 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 standing in the name of Karuni, s/o- Sadhu, Plaintiff and his brother Pahali both sons of Sarat which gives rise to presumption of joint ownership. 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, the Plaintiff to the exclusion of Karuni 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 as to the possession of Pahali and Karuni finds mention. From that however, in view of the relationship between the parties, partition cannot be presumed and it cannot be said that said land had fallen in the share of Plaintiff and his brother. It may at best be taken to be in separate possession for convenience on mutual agreement as to that. 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. The whole case as above 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 standing 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 rightly 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 as to the facts as above stated, the Courts below having found the Plaintiff to have failed to prove the case of partition and allotment; this Court

finds no such infirmity or illegality therein. The lower

Appellate Court has also rightly then accepted the purchase of share of Pahali over the suit land by the Plaintiff. Accordingly, the Courts below did commit no such error in holding the Plaintiff is 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 towards share of Karuni.

09. In view of the aforesaid discussion and reasons, 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.

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D. Dash, J.

Aks