Niranjan Jena vs Unknown
2021 Latest Caselaw 11457 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                   RSA No.326 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
     Additional District Judge, Bhadrak in RFA No. 49/08 of 2013/2008.
                                     .........

            Niranjan Jena                                         ::::    Appellant.
                                       -:: VERSUS ::-
            Umakanta Jena & Others                                ::::    Respondents.

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

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For Appellant ... Mr. Prafulla Ku. Rath, R.N. Parija, S.K. Singh, P.K.Sahoo, S.K. Pattnaik, A.K. Rout and A.Behera Advocates For Respondents ... None

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PRESENT:

THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 09.11.2021

--------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under section 100 of the

Code of Civil Procedure (for short, 'the Code') has challenged the

judgment passed by the learned Additional District Judge, Bhadrak in

RFA No. 49/08 of 2013/2008.

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

dismissed the Appeal filed by the Appellant and his two other brothers

under section 96 of the Code, has confirmed the judgment and decree

passed by the learned Civil Judge (Senior Division), Bhadrak in T.S.

No. 250 of 1999.

The suit had been filed by one Danu Jena as the Plaintiff and he

is the predecessors-in-interest of the present Respondent Nos. 1 to 5

having been decreed by the Trial Court declaring their right, title and

interest of the Plaintiffs as well as Defendant Nos. 6 and 7 over the suit

land and confirming their possession in further restraining the Appellant

and others has thus been confirmed in the First Appeal.

It may be mentioned here that the original Plaintiff, Dhanu Jena

having died during the suit, these Respondent Nos. 1 to 5 being his legal

representatives have been substituted as the Plaintiffs and they

prosecuted the suit as well as contested the First Appeal filed by the

Defendants-Appellant and his brothers having suffered from the

judgment and decree of the Trial Court.

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.

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3. Plaintiffs case is that the land under sabik khata No. 74 measuring

an area Ac.0.05 decimals is their joint undivided ancestral property and

they along with the Defendant Nos. 6 and 7 have the right, title, interest

and possession over the same. The middle portion of the land under C.S.

plot No. 688 under said khata measuring Ac.0.03 dec. out of Ac.0.8 dec.

and 100 square links towards its North-Western corner corresponds to

MS plot No. 1325 under khata No. 207; plot No. 1326 under khata No.

230 and plot No. 1319 under khata No. 78. It is said that the plots

together is a pond. The M.S. plot No. 1325 to an extent of Ac.0.03 dec.

though recorded in the name of their father, Ac.0.03 dec. out of rest

Ac.0.05 dec. has been wrongly recorded in the name of father of

Defendant No. 1 under plot No. 1326 khata No. 230 and 100 square links

of land under plot No. 1319 has been recorded in the name of Defendant

No. 5. It is stated that father of the Plaintiffs as well as father of

Defendant Nos. 6 and 7 were under the belief that the suit land to the

above extent stands recorded in their names. On 1.5.1999 when the

Defendant Nos. 2 to 5 claiming to have purchased the above extent of

land from Defendant No. 1 created disturbance so as to take possession of

the same by force, the Plaintiff made an enquiry in the matter and then

the erroneous recording of the land in the suit came to be detected.

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It is stated that the Defendant No.1 and his father without having

any right have managed to get that Ac.0.03 dec. of land recorded in their

names. Havig said so, it is stated that the sale deed executed by

Defendant No. 1 in favour of Defendant Nos. 2 to 4 is illegal void and to

have never been acted upon. As regards the suit land measuring an area

of 100 square links, it is said that the same has also been wrongly

recorded as part of plot No. 1319 being shown as homestead instead of

pond. The Plaintiff and Defendant No. 6 and 7 are said to have been

continuing in possession of the suit land from the time of their ancestral

all along despite such wrong recording. Having detected the above

erroneous recording and apprehensive of being dispossessed of the suit

land by the Defendant Nos. 2 to 4, the suit has come to be filed.

4. The Defendant Nos. 3 and 4 in their joint written statement while

traversing the plaint averments has taken the stand that the MS plot No.

1326 belonged to Murali Jena and he was in possession of the same

having his residential house over it. On the death of Murali, his son

Defendant No. 1 inherited the same and he when shift another place has

sold the said plot of land to Ghalu Jena who happens to be their father.

Said Ghalu purchased the suit land under registered sale deed dated

12.4.1999 for a consideration of Rs.3000/- in their name as also in the {{ 5 }}

name of Defendant No. 2. It is stated that pursuant to the sale deed the

Defendant No. 1 had delivered the possession of the suit land to their

father Ghalu who remained in possession of the same peacefully without

any interference from any quarter from the time of purchase as before

like the vendor.

5. The Defendant No. 5 filing a separate written statement has stated

that the land under MS plot No. 1319 corresponds to C.S. plot Nos. 687

and 688. It is further stated that the land C.S. Plot No. 687 belongs to

Bhabagrahi and Danu Jena and they executed un-registered lease deed on

20.5.1955 for the land measuring Ac.0.06 dec. and had delivered

possession to Chupri Jena, the husband of Defendant No. 5. Since then

the husband of Defendant No. 5 was in possession over the same by

paying rent and thus acquired occupancy right over the same. It is stated

that the suit land has been recorded in the Major settlement in the name

of her husband under khata No. 78 and after his death she is possessing

the same exclusively.

It may be stated at this stage that this Defendant No. 5 after having

filed the written statement has however not contested the suit nor the

Appeal.

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6. The Trial Court faced with pleadings as above has framed as many

as seven issues.

Taking up the crucial issues i.e. Issue Nos. 3, 4, 5 and 6 relating to

the right, title, interest and possession of the suit land of the Plaintiffs; as

regards recording of the suit land in the MS ROR etc. has finally

answered those in favour of the Plaintiffs holding the Plaintiffs to be

having the right, title, interest and possession of the suit land and

recording of the suit land in the MS ROR as such has been found to be

erroneous. Practically, these findings have led the Trial Court to decree

the suit.

7. Defendant Nos. 2 to 4 having suffered from the judgment and

decree passed by the Trial Court as aforesaid had carried the First Appeal

under section 96 of the Code. The Appeal has also been dismissed.

8. I have heard Mr. P.K. Rath, learned counsel for the Appellant. He

submits that the Courts below are not right in decreeing the Plaintiffs suit

for declaration of right, title and interest in the suit that has been filed 12

years after the publication of the Record of Right in the Major settlement

and in view of the provision of Section 27 of the Limitation Act, the

Courts below ought to have held that the Plaintiffs title over the suit land {{ 7 }}

if any has stood extinguished after expiry of the period of 12 years from

the date of publication of the Record of Right in the Major settlement.

It is further submitted that the Record of Right of the suit land

published in the Major settlement having held the field for a long period

since the year 1974 onwards and the suit having been filed only in the

year 1999, based on the presumption of possession the resting with the

Defendant Nos. 2 to 4, the Courts below have erred in law by not holding

the Defendant Nos. 2 to 4 to have perfected title over the suit land by way

of adverse possession even though such a plea in clear words has not

been taken in the written statement but when all other factors associated

with the said plea have been so pleaded. He therefore urges for admission

of this Appeal formulating the above as the substantial questions of law.

9. Coming to address of the submission of the learned counsel for the

Appellant, it is seen that the Plaintiffs have filed the suit for declaration

of their right, title, interest and confirmation of the possession stating

further that despite such erroneous recording of the suit land in the Major

Settlement operation, they have been in possession of the suit land,

further saying erroneous recording as to have been detected shortly filed

in the suit.

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The certified copy of the C.S. RoR published in the year 1927

reveals that the land under khata No. 74 stood recorded in the name of

one Nagar Jena are that khata was having the land under plot No. 688

measuring an area Ac.0.08 dec. Ext.2 the certified copy of the MS RoR

reflects that khata No. 207 standing recorded in the name of Bhabagrahi

and Danu Jena son of Nagar Jena contains the land under plot No. 1375

measuring an area Ac.0.03 dec. with noted status as 'Pokhari'. MS khata

No. 230 stands recorded in the name of Murali Jena contains the land

under plot No. 1326 measuring Ac.0.03 dec. as homestead with house

standing over there. The other MS Record of Right pertaining to khata

No. 78 is in the name of Chupuri Jena having the land under plot No.

1319 as 'Gharabari'. Fact remains that those MS RoR under khata No.

230 and 78 Ext. (2/A and 2/B) have not been challenged till the suit.

10. Law is fairly well settled that in a suit based on antecedent title

when the Court finds the same in favour of the Plaintiff and also finds his

possession to have been there over the suit land, even if he does not call

in question the wrong recording of the suit land in the Settlement

Operation within a period of three years as prescribed in section 58 of the

Limitation Act as also under section 42 of the Orissa Survey and

Settlement Act, he cannot be shown the door of exist and cannot be non-

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suited on that ground, on the face of the settled law that the entry in the

Record of Right does neither create title in favour of someone who in fact

does not have it nor does extinguish title of the true owner in respect of

the suit land. So, in that view of the matter when the title holder

continues to remain in possession of the property despite said wrong

recording, his non-filing of the suit within a period of three years from

the date of publication of the said erroneous ROR cannot extinguish his

right, title and interest over the property in question and as such he does

not become disentitled to continue to be in possession over the suit land.

The Courts however give some importance to the entries in the

Record of Right when that Record of Right has been allowed to stand for

a pretty long period and especially acted upon by the parties detrimental

to their interest especially those who had been adversely affected by such

entries.

11. The Courts below having concurrently found from evidence that

the Plaintiffs who claim in the suit to have been affected under those MS

record of rights have never acted upon the said recording of the suit land

standing in favour of Defendant Nos. 2 to 5. Therefore, the Plaintiffs

having not questioned said MS Record of Right as erroneous for all these {{ 10 }}

period till filing of the suit would not affect their right, title, interest over

the suit land if they otherwise establish the same and if it is not found to

have been extinguished by the act of the other party remaining in open,

peaceful and continuous possession of the land in question in exercise of

the right as it owners exhibiting hostile animus and to the knowledge of

the Plaintiffs in acquiring title over the land in question by way of

adverse possession. In that event the right, title and interest of the

Plaintiffs can be said to have been extinguished by virtue of operation of

section 27 of the Limitation Act.

12. In the case on hand, the Trial Court as well as the First Appellate

Court on appreciation of evidence on record have found that the Plaintiffs

have proved their possession by preponderance of probabilities. In

holding the same, the evidence of P.W. 1 is said to have received due

corroboration from the evidence of P.W. 2 who is the boundary tenant.

The witnesses examined on behalf of the Defendants do not have their

land adjoining the suit land, the Courts below have not given more

weightage to their evidence so as to outweigh the evidence let in by the

Plaintiffs.

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Learned counsel for the Appellant has not been able to place any

such material that the above conclusion arrived at by the Courts below in

any such manner suffers from the vice of perversity. The concurrent

finding stands that the Plaintiffs have established their right over the suit

land by proving the old record of right of the year 1927 as also their

possession. The Defendants have failed to show as to how the land has

come be so recorded in the Major settlement in overruling that old

Record of Right. At this juncture, it is next seen that the Defendants have

advanced no such case for claiming of acquisition in their written

statement. The evidence let in from the side of the Defendants also do not

make out as case as regards perfection of title over the suit land by way

of adverse possession. Moreover, on the face of the findings of the Courts

below that the Plaintiffs are in possession over the suit land despite the

state of affair recording of the same in the MS Record of R remaining

uninterfered; the very basic ingredient of acquisition of title by way of

adverse possession here in the case fails.

For the aforesaid discussion and reasons, the submission of the

learned counsel for the Appellant (Defendant) that the Appeal merits

admission as it involves substantial question of law standing to be

answered is not accepted.

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

(D. Dash), Judge.

Aksethy