Orissa High Court
Nabin Kumura vs Suresh Kumura & Another on 11 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.369 of 2012
Nabin Kumura .... Appellant
Mr.B. Sahoo
-versus-
Suresh Kumura & Another .... Respondents
CORAM:
MR. JUSTICE D.DASH
ORDER
11.11.2021
Order No.
04. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. The Appellant, by filing this Appeal under Section 100
of the Civil Procedure Code (for short, 'the Code') has assailed
the judgment and decree dated 24.08.2012 and 03.09.2021
respectively passed by the learned District Judge, Sambalpur in
R.F.A. No.4 of 2012.
By the said judgment, the First Appellate Court, while
dismissing the Appeal filed by the Plaintiff-Appellant under
section 96 of the Code, has confirmed the judgment and decree
dated 29.11.2011 and 08.12.2011 respectively passed by the
learned Civil Judge (Senior Division), Sambalpur in C.S.
No.76 of 2002.
// 2 //
3. 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 Suit.
4. The case of the Plaintiff, in short, is that the suit land
originally belong to one Satrughan Kumura. On his death,
Sabitri Kumura being the wife and Suresh Kumura being his
son, came to hold the same having the right, title and interest.
It may be stated here that Sabitri Kumura being arraigned in
the Suit as Defendant No.2 died and Suresh Kumura is the
Defendant No.1 contested the Suit and the First Appeal.
It is stated that in the year 1994, the Defendants being
in urgent need of money, executed one hand note under Ext.1
as a sale deed in respect of the suit land for a consideration of
Rs.51,600/- in favour of the Plaintiff. They agreed therein to
execute a registered sale deed in favour of the Plaintiff after
obtaining necessary permission from the Competent Authority.
The Defendant had delivered the possession of the suit land to
the Plaintiff in the year 1994 and the Plaintiff is thus in
possession of the same as also paying land revenue. The
Defendants, resiling from their undertaking as given under the
agreement, however, did not comeforward to execute the sale
deed even after obtaining the permission from the Competent
Authority, on the contrary, they disturbed the peaceful
possession of the Plaintiff over the suit land. So, the Plaintiff
served notice on the Defendants to execute the sale deed
pursuant to that hand note (Ext.1). The Defendants then
refused to accept the notice and thus avoided to act upon that
// 3 //
undertaking contained in Ext.1. There being disturbance in
possession the Plaintiff in respect of the suit land; a proceeding
under Section 144 of the Code of Criminal Procedure was first
initiated and finally the Suit came to be filed.
5. The Defendants, in their Written Statement, have stated
to have never executed the agreement in favour of the Plaintiff
to sell the suit land to him at any point of time. It is also stated
that they had never applied for permission from the Competent
Authority. They, however, state to have raised a loan of
Rs.18,000/- from the Plaintiff so as to meet their urgent and
there it had been agreed that in lieu of the interest, the Plaintiff
would cultivate the suit land till repayment of the loan and at
that time they handed over two pieces of plain papers with
signatures/thump impression because the Plaintiff insisted
upon that. They state that said land being a fragmentation of
the consolidable land, it was not permissible to sell the same.
They state that they having repaid the loan on 16.03.1999, the
possession of the suit land stood restored in their favour from
the hands of the Plaintiff and then the Plaintiff, in token of
receipt of the loan amount from the Defendants, has executed a
document acknowledging the same and further admitting the
factum of redelivery of possession of the suit property to the
Defendants. The Defendants thus claim to be in possession of
the suit land having their exclusive right, title and interest.
6. The Trial Court, framing eight issues returning answers
on all those, has dismissed the Suit.
// 4 //
7. The Plaintiff being unsuccessful having filed the
Appeal has also failed in that move.
8. Learned counsel for the Appellant submits that the
finding of the First Appellate Court that the Plaintiff being not
the owner of contiguous chaka appertaining to the suit land,
the application filed before the Tahasildar seeking permission
for sale of Ac.1.50 decimals of land out of the Suit land by the
Defendants is hit under section 34 of the Act as also the
consequential findings that the agreement or contract under
Ext.1 to sell the suit land which is less than two acres is void
are unsustainable in law. He further submits that the Suit on
that ground ought to have been held to be maintainable.
According to him, the above are the substantial questions of
law involved in the case warranting admission of this Appeal.
9. Keeping in view the submissions made; judgments
passed by the Courts below are perused.
10. The objection of the Defendants stands on the score that
they had never executed Ext.1 to sell the property to the
Plaintiff and they state that their signatures/thump impressions
had been taken on plain papers by the Plaintiffs, while
advancing the loan of Rs.18,000/-. The First Appellate Court,
on discussion of the evidence, has found that the Plaintiff had
only cultivated the suit land till 16.03.1999. On carefully
examining the document (Ext.E) that the Plaintiff has
redelivered the possession of the suit land to the Defendants
and that he has not been able to establish through any evidence
// 5 //
whatsoever that after 16.03.1999, at any point of time, he had
possessed the suit land.
The conclusion that the Defendants were in possession
of the suit land as on the date of institution of the Suit is found
to be unassailable.
In the above premises, the Suit, as laid by the Plaintiff
for the reliefs claimed is not maintainable in the eye of law.
Having said so, this Court finds that the submissions of the
learned counsel for the Appellant are devoid of merit.
11. Accordingly , the Appeal stands dismissed.
(D.Dash)
Judge
Basu
