Nabaghana Sethi & Others vs Unknown
2021 Latest Caselaw 11350 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                   RSA No.358 of 2014


            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, Jagatsinghpur in RFA No.13 of 2014.
                                      .........

            Nabaghana Sethi & Others                              ::::    Appellants.

                                       -:: VERSUS ::-
            Shanti Sethi & Others                                 ::::    Respondents.

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

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             For Appellants                 ...      Mr. P.K. Sahoo, Advocate
             For Respondents                ...      None
                                            ------

     PRESENT:
                      THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 06.11.2021

--------------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section-100 of the

Code of Civil Procedure (for short, 'the Code') have called in question

the judgment and decree passed by the learned District Judge,

Jagatsinghpur in RFA No.13 of 2014.

{{ 2 }}

By the said judgment and decree passed by the First Appellate

Court, the judgment and decree passed by the learned Civil Judge

(Senior Divison), Jagatsinghpur in C.S. No. 172 of 2005 have been

confirmed. The Appellants being the Plaintiffs having been non-suited

by the Trial Court, the First Appeal filed by them under section 96 of the

Code has yielded no fruitful result.

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 in the suit have prayed for a declaration of their title

over the schedule land which in total measures Ac.0.18 decimals and

with such declaration the next prayer is to permanently injunct the

Defendants from interfering in their possession of the suit land.

It is stated that by a registered partition deed dated 5.4.1986

Natabar, Somanath and Kangali and two sons of Achuta namely

Bhagaban and Jagannath had partitioned their properties and the suit

properties had fallen in the share of Kangali. It is further stated that

Kangali being survived by his wife Bidulata and three sons namely,

Siba Charan, Sankar Prasad and Chakradhar, they succeeded to the

properties of Kangali and as such being the owners remained in {{ 3 }}

possession of the same. Each of them had 1/4th share over the entire

properties which was in the share of Kangali. It is said that Bidulata with

the conslt of her son, Siba Charan had sold the land measuring Ac.0.03

dec. and 4 links from plot No. 349 and Ac.0.01 dec. from plot No. 237

and possessed the same. The Defendants claim to have purchased the

suit land from three sons of Kangali by registered sale deed dated

9.10.2000 and having mutated the land behind the back of Bidulata. The

Defendants having threatened to take possession from the Plaintiff No. 1

forcibly, the suit came to be filed.

The Defendants in their written statement have not disputed the

title of Kangali over the suit land. They however assert that they are in

possession of the same being the bonafide purchasers for value. The fact

that Kangali was survived by his wife and three sons also stands

admitted. It is their case that Bidulata and her three sons of Kangali sold

the suit land to them for legal necessity. It is stated that Bidulata being

an illiterate woman, the Plaintiff No. 1 taking advantage of her illiteracy,

age and other disability had obtained such sale deed in his favour

without payment of consideration and that has never been acted upon.

4. The Trial Court on the rival pleadings having framed six issues

has found the sale deed projected by the Plaintiffs as the foundation of {{ 4 }}

their claim over the suit property to have not been proved as required in

law and therefore it has refused to take cognizance of that same and

repelled the case of the Plaintiffs that they have derived title over the

suit land or any part thereof by such sale deed Ext. 5.

Having said so, upon analysis of evidence on record, the

possession of the suit land has also not been found with the Plaintiffs.

Therefore, the suit filed by the Plaintiffs to declare their title over the

entire suit land and to injunct the Defendants has been dismissed.

The Plaintiffs being unsuccessful in the Trial Court having carried

the Appeal have also failed in the First Appellate Court.

5. Mr. P.K. Sahoo, learned counsel for the Appellants submits that

the Courts below are not justified in dismissing the suit for title when

the Plaintiffs case is based on their purchase under registered sale deed

Ext. 5 and there being no challenge from the side of the Defendants that

the said document did not convey any title. He further submits that the

sale deed Ext. 5 ought to have been held to be valid at least to the extend

of share of Bidulata over the land that had fallen in the share of Kangali

which were succeeded to by Bidulata and her three sons. He thus

submits that the suit should not have been dismissed without granting {{ 5 }}

any relief. He therefore urges for admission of the Appeal on the above

substantial questions of law

6. In the present case as is seen, the total extent of suit land is Ac.

0.18 decimals. The Plaintiffs however claim to have purchased the land

from Bidulata wife of Late Kangali by registered sale deed to a total

extent of Ac.0.04 decimals under two plots. Admittedly, all the other

legal heirs have not consented to the same. So even accepting for a

moment that the sale deed was duly executed by Bidulata, it would

remain confined to the share of Bidulata alone without touching or

impacting the other three legal heirs of their interest over Ac.0.18 of

land.

The suit has been filed for declaration of title and injuction. In

respect of the sale-deed Ext.5, the First Appellate Court after detail

discussion of evidence has held the same to have not been proved. The

discussion as made by the First Appellate Court appear to be the

outcome of an in depth study of the evidence on record and no such

perversity comes to surface. In so far as the possession is concerned,

concurrent finding of fact has been rendered by the courts below that the

Plaintiffs are not in possession of the suit land and they have failed to

prove the same by leading clear, cogent and acceptable evidence on that {{ 6 }}

score. This Court finds no reason/ justification to interfere with the same

within the scope of this Appeal. When the sale deed said to have been

executed by Bidulata has not been proved in accordance with law and

possession of the land has been found with the Defendants, the dismissal

of the suit as laid and for the reliefs claimed has rightly dismissed.

7. In view of all these above, the submission of the learned counsel

for the Appellants that there surfaces the substantial question of law

meriting admission of this Appeal.

8. In the result, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy