Raghunath Patra vs Babaji Tarai And Others
2021 Latest Caselaw 4015 Ori

                          HIGH COURT OF ORISSA : CUTTACK

                                        RSA No.287 of 2019
             In the matter of appeals under section 100 of the Code of Civil
       Procedure assailing the judgment and decree dated 16.07.2019 and
       01.08.2019 respectively passed by the learned Additional District Judge,
       Nimapara in RFA No. 183/109 of 2016-2014.
                                       .........

              Raghunath Patra                                       ...      Appellant.
                                              -VERSUS-

              Babaji Tarai and others                               ...      Respondents.

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

------------------------------------------------------------------------------------- For appellants ... M/s. A.R. Dash, B. Mohapatra, Dr. N.

Swain, K.S. Sahu, L.Achari, A.Mahanta and S.Mohanty, Advocates.

              For respondent `               ...    None
                                                 .........
     PRESENT:
                         THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing : 18.03.2021 :: Date of Judgment: 23.03.2021

-------------------------------------------------------------------------------------------- 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 passed by the learned Additional District Judge, Nimapara in RFA No. 183/109 of 2016-2014.

By the said judgment and decree, the lower Appellate Court has confirmed the judgment and decree dated 31.07.2014 and 14.08.2014

respectively passed by the learned Civil Judge (Junior Division) in C.S. No. 156 of 2012.

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 Trial Court.

3. The Plaintiff's suit for permanent injunction in respect of the land described in the schedule "A' of the plaint is founded on the following facts:-

The Plaintiff and Defendant Nos. 2 and 3 having acquired the property in suit as also other property by virtue of order passed in OLR Case No. 279 of 1985 are in possession of the same paying land revenue to the State. That on 30.01.2011, the Defendant No. 1 threatened the Plaintiff to interfere in his peaceful possession over the suit land claiming to have purchased the suit land from the Plaintiff under registered sale deed dated 06.02.1995. The Plaintiff had no knowledge about the same. On hearing from the Defendant No.1, he applied for a certified copy of the said sale deed. Having received the sale deed on 11.02.2011, he could know that the Defendant No. 1 has managed to obtain that illegal sale deed in respect of the land under suit Sabak Plot No. 2601 area Ac 0.15 dec. corresponding to Hal not final khata No. 1413/Ka, Hal plot No. 3647/8956. According to him, the Defendant No.1 had got the deed scribed through his own man of choice and secured his own persons as the witnesses to the sale deed. All these are said to be behind back of the Plaintiff. He also claims to have received no consideration for the said transaction. The Plaintiff asserts himself to be a member of Scheduled Tribe community being 'Sabar' by caste. So the said

sale deed is also attacked to have been made without the required permission under section 22 of the OLR Act and thus void in law. It is thus stated that the Defendant No.1 by virtue of the sale deed has acquired no right, title, interest and possession over the suit land and that all along has been resting with the Plaintiff. During the consolidation, the suit plot bearing No. 3647/8955 and 3647/8957 had been recorded in the name of the Plaintiff and Defendant Nos. 2 and 3 and portion of that, they kept for their common use. It is specifically stated that on 9.12.2012 the Defendant No. 1 came over the land and attempted to put up construction of permanent nature over the same. So, the Plaintiff filed the Suit for permanently injuncting the Defendant No.1 from interfering in his possession in respect of suit land.

4. The Defendant No. 1 contested the Suit by filing written statement. The possession of the suit land by the Plaintiff has been denied since the sale. It is averred that the Plaintiff and Defendant Nos. 2 and 3 are members of Scheduled Caste community being 'Nalua-kela' by caste. It is also his case that the Plaintiff has voluntarily executed the sale deed on 06.02.1995 on receipt of agreed consideration in selling the Suit land to him. It is his further case that pursuant to the said sale made by the Plaintiff, he had been delivered with the possession of the suit land by the Plaintiff and thereby acquired right, title and interest over the suit land and has been in possession of the same. The Defendant No.1 claims himself to be a bona fide purchaser of the land in question from the Plaintiff for value and has been in possession of the same by constructing dwelling house over it. It is his case that the Plaintiff with mischievous intention in order to harass the Defendant No. 1 has filed the suit.

5. The Defendant Nos. 2 and 3 in their written statement admitted the factum of execution of the sale deed by the Plaintiff in favour of Defendant No. 1. It is also stated that the Plaintiff had made similar claim before the Commissioner Consolidation in Consolidation Revision Case No. 1159 of 2010. They have stated that the Plaintiff having sold the property in question has no such right, title and interest over the Suit land.

6. On the above rival case of the parties, the Trial Court framed in total five issues. The crucial issue Nos. 3 and 4 as to the possession of the property by the Plaintiff and the propriety regarding grant of permanent injunction as prayed for by the Plaintiff, the Trial Court has rightly taken up those two for decision at first.

Having examined the evidence on record in the backdrop of the pleadings, it has been held that the Plaintiff has utterly failed to prove his possession over the Suit land in further holding that the assertion of the Plaintiff that the Defendant No.1 had attempted to dispossess him from the suit land is false. Thus rendering the answers to the issues against the Plaintiff, the Plaintiff has been non-suited.

The lower Appellate Court being moved by unsuccessful Plaintiff has affirmed those findings. Thus the Plaintiff having been non- suited by both the Courts below has now filed this appeal.

7. Learned counsel for the Appellant (Plaintiff) submitted that in the fact and circumstances of the case as also the evidence on record, the Courts below ought to have held the sale deed standing in favour of the Defendant No. 1 which is said to have been executed by the Plaintiff i.e. Ext. A = Ext. 1

to be void ab initio and nonest in the eye of law as it was not with the prior permission as required under section 22 of the OLR Act and therefore when the Defendant claims to have derived the title and possession through that deed of sale, the Courts below ought to have granted the relief of permanent injunction to the Plaintiff as has been prayed for which there stands no legal impediment. This according to him is the substantial question of law involved in the case and needs answer in the appeal.

8. The facts of the case lie in a narrow campus that here when the Plaintiff claims to have never sold the suit land to the Defendant No. 1 as also attacks the sale deed to be without required permission under the relevant law as he being a member of Scheduled Tribe, the sale to a member not belonging to Scheduled Tribe is required to be made with the prior permission; the Defendant No. 1 asserts to have duly purchased the land from the Plaintiff stating that that there was no contravention provision of law in the matter since no permission was required for the said transaction in terms of the provision of the OLR Act which rather excludes the transaction in hand, between the Plaintiff and Defendant No.1 from that rider.

The Plaintiff first of all asserts that he is a member of Scheduled Tribe community and the Defendant No. 1 as neither a member of Scheduled Tribe or Scheduled Caste community. On the other hand, the Defendant No.1 asserts that he and the Plaintiff both are members of Scheduled Caste community. The Plaintiff in support of said claim has filed a caste certificate marked Ext. 2. To counter the same, the Defendant No. 1 has proved the information obtained under RTI Act which is to the effect that no such record is available in the concerned office despite thorough search. The

Plaintiff has, however, not taken any attempt to call for the record containing the order as to grant of that certificate which is under challenge. The authenticity of the said caste certificate is thus said to have not been established. In the above state of affair in the evidence, having held the document Ext. 2 to be under thick cloud which have not been removed by the Plaintiff through clear, cogent and acceptable evidence in support of its case that the sale deed is void and nonest in the eye of law, the Courts below are found to have committed no error.

The Plaintiff has pleaded to have never executed the deed of sale i.e. Ext. 1= Ext. A in respect of the suit land. It is also his case that he is not aware about the document. Fact remains that the sale-deed is a registered one and the Plaintiff is not challenging his signatures upon the said document. There is no explanation from the side of the Plaintiff as to how his signatures appeared in the document and how his presence could be secured before the Sub-Registrar. The legal presumption stands in favour of due execution of the sale deed. It was for the Plaintiff to establish to the contrary by leading clear, cogent and acceptable evidence in rebutting the same which is squarely wanting in the case. On the other hand, the Defendant No.1 has tendered detail evidence as to the execution and registration of the deed in question. Moreover, the Courts below when on analysis of evidence on record have held the Defendant No. 1 to be in possession of the suit land, no such glaring infirmity warranting interference is noticed therein. So the suit at the instance of the Plaintiff only seeking the relief of permanent injunction that to, raising the dispute on that the registered sale deed claiming the said document to have never been executed by him and that thereby the vendee i.e. Defendant No. 1 has not derived any

right, title and interest over the suit land without any further required relief is found to have been rightly dismissed.

9. For all the aforesaid, this Court finds that here in the case no such substantial question of law surfaces meriting admission of this Appeal.

10. Accordingly, the Appeal stands dismissed. No order as to cost.

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

D. Dash, J.

Orissa High Court, Cuttack Dated the 23rd day of March, 2021/ Aks