Sri Ananta Jena @ Ananta Prasad ... vs Unknown
2021 Latest Caselaw 11277 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                   RSA No.384 of 2017


            In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree passed by the learned
     District Judge, Balasore in RFA No.59 of 2014.
                                     .........

Sri Ananta Jena @ Ananta Prasad Jena :::: Appellant.

-:: VERSUS ::-

Sri Markanda Singh & Others :::: Respondents.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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

For Appellant ... Mr. Maheswar Mohanty, Advocate For Respondents ... None

------

PRESENT:

THE HON'BLE MR. JUSTICE D.DASH

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

Date of Hearing and Judgment: 03.11.2021

--------------------------------------------------------------------------------------- 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 District Judge, Balasore in

RFA No.59 of 2014.

By the said judgment and decree, the First Appellate Court while

allowing the First Appeal under section 96 of the Code filed by the {{ 2 }}

Respondent Nos. 1 to 4 (Plaintiffs) has set aside the judgment and

decree passed by the learned Civil Judge (Junior Division), Balasore in

C.S. No. 192 of 2005-I. The suit for declaration of the right, title and

interest of the Respondents Nos. 1 to 4 (Plaintiffs) over the suit land and

confirmation of their possession; in further injuncting the Appellant

(Defendant No.1) and Respondent No. 5 (Defendant No.2) from

creating any sorts of disturbance in peaceful possession of the

Respondent Nos. 1 to 4 (Plaintiffs) over the suit land having been

dismissed by the Trial Court, the same has been reversed by the First

Appellate Court and finally, the suit has been decreed.

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 Plaintiffs' case in short is that the suit land originally

belonged to one Kangali Jena and it stood recorded in his name in the

record of Major Settlement Khata No. 26. Said Kangali Jena has sold the

property in question to the Plaintiffs by obtaining necessary permission

from the Competent Authority as required under section 22 of the Orissa

Land Reforms Act (OLR Act) in OLR Permission Case No. 49 of 1977.

For the purpose, Kangali Jena had executed the registered sale deed on

21.02.1983 and had delivered the possession of the suit land to the {{ 3 }}

Plaintiffs. It is stated that the Plaintiffs since the time of purchase have

been continuing with their possession and paying rent to the State.

It is their case that they being rustic villagers were unaware about

the settlement operation and in view of their absence at different stages

of the settlement operation, the suit land continued to be recorded in the

name of Kangali Jena without noting the change of hands. Taking

advantage of said wrong recording in Raghupati Settlement in the name

of Kangali Jena, the defendants with help of same mischievous persons

threatened to dispossess the Plaintiffs. Being apprehensive of said

dispossession, the Plaintiffs then only could ascertain about such

erroneous recording of the land in the name of Kangali Jena. It is said

that the Defendants have no manner of right, title, interest and

possession over the suit land. Thus the suit has come to be filed.

4. The Defendants entering appearance in the suit in their written

statement while traversing the plaint averments have pleaded that their

grandfather Kangali Jena had never sold the suit land to the Plaintiffs

and at no point of time, he has executed the said sale deed. It is stated

that the suit land is their ancestral property. They are in possession of

the same and exercising their right as owners thereof. The move of the

Plaintiffs in filing the suit for the reliefs claim is stated to be with a

mischievous aim of grabbing the suit land.

{{ 4 }}

5. The Trial Court on such rival pleadings having framed four issues

has straightway dismissed the suit by simply taking the view that the suit

having been filed after expiry of the period of limitation of three years

as prescribed under section 42 of Orissa Survey Settlement Act and

when the record of right which is said by the Plaintiffs to have been

erroneously prepared has not been challenged within three years of the

publication; the suit is not maintainable. Accordingly, holding the record

of the suit land as per the record of the Raghupati Settlement as correct,

the Plaintiffs have been non-suited.

6. The Lower Appellate Court having gone to discuss that aspect has

held that the Trial Court has erred on fact and law in construing the suit

as one for correction of the settlement entry. On going a reading to the

plaint in entirety, it has held the suit to be one for declaration of right,

title and interest over the suit land for which the limitation provided in

section 42 of the Orissa Survey and Settlement Act (OSS Act) has been

held as no bar. Having said so, the approach of the Trial Court in

applying the limitation as provided under section 42 of the OSS Act in

finally holding the suit for the relief claim as not maintainable has been

set aside. It has been clearly held that upon observation of the case laid

in the plaint, the suit is to be not one for correction of ROR but for

declaration of title. Upon examination of the evidence both oral and {{ 5 }}

documentary on record, the conclusive finding has been given that the

Plaintiffs have derived the right, title and interest over the suit land by

virtue of the purchase made by them from the original owner, Kangali

Jena under registered sale deed admitted in evidence and marked Ext. 2

backed by due permission as required in law. It has been further held

that in view of the valid sale of the suit land made by Kangali Jena

coupled with the fact that the Plaintiffs are in possession of the same, the

Defendant Nos. 1 and 2 have no manner of right, title and interest over

the suit land and as such they have also no right to possess the same.

With all these above, the First Appellate Court has decreed the suit filed

by the Plaintiffs granting them the reliefs as prayed for.

7. Mr. Maheswar Mohanty, learned counsel for the Appellant

submits that the First Appellate Court has misread the prayer in the

plaint i.e. for declaration of hal ROR as illegal and erroneous and

without due application of mind has held at page-8 and 9 of the

judgment that the Trial Court has misconstrued the suit as one for

correction of the settlement entry of the ROR. According to him, the

above substantial question of law arises here for being answered in this

Appeal.

8. In addressing the above submission of the learned counsel for the

Appellant given a while some reading to the averments taken in the {{ 6 }}

plaint, it is seen that the Plaintiffs have projected their claim of title ad

possession over the suit land and the basis of the same is the registered

sale deed executed by Kangali Jena the admitted owner of the property

in question in their favour in the year 1983 vide Ext. 2. It has been

pleaded that Kangli Jena had sold the suit land and for the purpose, he

had taken prior permission as required under law from the Competent

Authority under Orissa Land Reforms Act.

9. The Defendants have however denied the execution of the sale

deed dated 21.2.83. The evidence with regard to the sale of the suit land

by Kangali Jena has however not been controverted by the defendants.

The recitals in the sale deed also note the factum of delivery of

possession of the suit land by Kangali Jena to the Plaintiffs and that has

been also the evidence of P.Ws. 1 and 2. The Defendants have not

adduced any evidence either oral or documentary to counter the

evidence let in by the Plaintiffs.

In such state of affair in the pleadings as well as the evidence, the

Lower Appellate Court having held the suit to be one for declaration of

the right, title and interest of the Plaintiff over the suit and confirmation

of possession over the same, this Court finds no such infirmity therein.

10. In view of the aforesaid, the lower Appellate Court is found to

have very rightly rectified the gross mistake committed by the Trial {{ 7 }}

Court in dismissing the suit being hit under the provision of section 42

of the OSS Act and decreed the suit.

11. Accordingly, the submission of the learned counsel for the

Appellant that there arises the substantial question of law meriting

admission of this Appeal is not accepted.

12. Resultantly, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy