Naga Majhi & Others vs Ranjit Bhue & Others
2021 Latest Caselaw 11775 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                         RSA No.351 of 2006
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 22.08.2006 and
05.09.2006 respectively passed by the learned Additional District Judge
(FTC), Bolangir in Title Appeal No.13/18 of 2003-05 reversing the
judgment and decree dated 26.02.2003 and 21.03.2003 respectively
passed by the learned Civil Judge, Senior Division, Balangir, In Title
Suit No.44 of 1999.

     Naga Majhi & Others                   ....            Appellants
                                -versus-

     Ranjit Bhue & Others                  ....         Respondents

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

      For Appellants     -      M/s.D.P. Dhal, S.K. Tripathy,
                                S.K. Dash, K. Dash
                                P.K. Routray, A. Rath and
                                S. Mohanty
      For Respondents -         M/s.Trilochan Nand and
                                S.N.Mishra
                                For R.1 to 3
CORAM:
MR. JUSTICE D.DASH

               Date of Hearing & Judgment : 16.11.2021

D. Dash, J

1. The Appellants, by filing this Appeal, have challenged the judgment and decree dated 22.08.2006 and 05.09.2006 respectively passed by the learned Additional District Judge (FTC), Bolangir in Title Appeal No.13/18 of 2003-05 whereby and whereunder, the judgment and decree dated 26.02.2003 and 21.03.2003 respectively passed by the learned Civil Judge, Senior Division, Balangir in Title Suit No.44 of

// 2 //

1999 have been set aside and those Appellants (Plaintiffs) have been non-suited.

2. The Appellants as the Plaintiffs were before the Trial Court and their Suit having been decreed declaring their possessory title over the suit land and permanently restraining the Respondents (Defendants)) from interfering upon the suit land and disturbing the possession of the Appellants (Plaintiffs), the Respondent No.1 to 3 (Defendant Nos.3 to

5) had filed the Appeal under section 96 of the Code, which has been allowed as aforesaid.

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 Plaintiffs' case, in short, is that the suit lands were originally Bhogra land and belonged to erstwhile to Zamindar Chakradhar Sing Rai. On his death, his son, namely, Chitrabhani Singh Rai succeeded. He died leaving behind his two sons, namely, Jayakrushna Singh Rai and Laxminarayan Singh Rai arrainged as the Defendants 1 and 2 and have chosen not to contest the Suit. It is stated that Chakradhar Singh Rai had a concubine named Mathura and he had given the suit land to Mathura in lieu of maintenance. After the death of Chakradhar Singh Rai, his sons did not pull on well with Mathura for which she along with her brothers, namely, Chintamani, Saibani and Satya lived in another village and continued to possess the suit land without any interference from the members of the Zamindar family. Mathura was issueless. Taking advantage of the fact that she was illiterate and her helplessness condition as also her ignorance; Chitrabhanu Singh Rai being an influential person, managed to get his name recorded during the Bhogra proceeding though Mathura with her brothers were in

// 3 //

possession. The brothers of Mathura died one after another leaving behind their sons. Chintamani died leaving behind his son Jayasingh. Saibani died leaving behind her son, Debarchan and Satya had no son. He was survived by his widow Dura and daughter Nura who lived with Mathura. The Plaintiffs stated to be the brother's son of Mathura. Mathura died in the year 1960 leaving behind the suit land in the hands of Naga. Jaysingh and Dura continued to possess the suit land without any interference from any quarter. It is stated that though Jaysingh applied before the Settlement Authorities to record the suit land in their names, erroneously in the record of right of the current settlement, the land came to be recorded in the name of Ahalya and Kausalaya, the two widows of Chitrabhanu and the note of possession of Jaysingh, Naga, Dura and Nura were noted in respect of the suit land in the remark column of the ROR.

It is stated that the Defendants have no manner of right, title and interest over the suit land. The Plaintiffs, by their long standing possession have perfected title by way of adverse possession. Alleging that on 09.03.1999, the Defendants 3 to 5 declaring to have purchased the same portions of the suit from Defendants 1 and 2 threatened to create disturbance in the possession of the Plaintiffs, the Suit has come to be filed.

5. The Defendants 1 and 2, have filed the written statement and they also did not contest the Suit and the First Appeal.

6. The Defendants 3 to 5, while traversing the plaint averments, in their written statement have stated that Chakradhar had no concubine named Mathura and he had not given the suit land to her in lieu of maintenance. Mathura had married to Kalia Bhoi and out of their wedlock, two sons, namely, Murali and Madan were born. These

// 4 //

Defendants 3 to 5 claim to be son of Madan. They further assert that during Bhograi conversion proceeding, the suit land has been rightly recorded in the name of Chitrabhanu Singh Rai and during the current settlement operation, the Plaintiffs and the Defendants 3 to 5 as well as their mother were in cultivating the possession of the suit land for some years with the permission of the members of Zamindar family. Therefore, they state that the Plaintiffs have no right, title and interest over the suit land. It is next stated that the Defendants 1 and 2 had their right to transfer the suit land. After the death of Chakradhar Singh Rai, his son Chitrabhanu became the owner and on his death, the suit land was succeeded by his two widows Ahalya and Kausalya and sons, the Defendants 1 and 2. They claim to have purchased the suit land and accordingly, have their right, title and interest over the same. It is also stated that the suit land has been recorded in the name of Ahalya and Kausalya in the current settlement ROR and in the family partition, the suit land stood allotted to Defendant No.2 who sold the land to these Defendants 3 to 5 by executing a registered sale deed on 15.02.1999 and since then they are in possession of the suit land.

7. The Trial Court, on the above pleadings, framed as many as ten issues. Those are follows:-

"i)Whether late Chakradhar Sing Rai who was the grandfather of defendant nos.1 and 2 had kept late Mathura majhi as his concubine and had given the suit land to her for her maintenance?;

ii) Whether late Chitrabhanu Singhrai got the suit land recorded in his name during Bhogra Conversion Proceeding taking advantage of the ignorance, illiteracy and helplessness of late Mathura Majhi?;

iii) If it is held that the suit land had been given to Mathura Majhi for her maintenance, whether on her death her

// 5 //

brother's sons and daughters got the said land as her successors and are in possession of the same?;

iv) Whether the defendant Nos.3 to 5 have purchased the suit land from the defendant Nos.1 and 2 and have acquired right, title and possession over the same?;

v) Whether the suit is maintainable?;

vi) Whether the plaintiffs have cause of action for filing the suit?;

vii) whether possessary title over the plaintiffs over the suit land is to be declared and confirmed?;

viii) whether as an alternative the plaintiffs are entitled for recovery of possession over the suit land?;

ix) Whether the defendants are to be permanently restrained from interfering in the possession of the plaintiffs over the suit land?; and

x) to what other relief if any?"

Having returned the findings on the above issues, the Trial Court has passed the following order:-

      "xx    xx    xx
      Xx     xx    xx

The possessory title over the plaintiffs over the suit land is declared and the same is confirmed. The defendants are permanently injuncted to enter the suit land and to disturb the possession of the plaintiffs.

Xx xx xx"

8. The First Appellate Court having taken up the matter relating to the sustainability of the findings returned by the Trial Court has proceeded to judge the same taking note of the rival contentions before it. On going through the evidence in the touch stone of the pleadings, at paragraph 14 of its judgment, it has been said that when the Defendants 1 and 2 being the rightful owners have not come forward to assert their

// 6 //

title within the statutory period and they as such when are not disturbing the possession of the Plaintiffs; some third persons, i.e, Defendants 3 to 5, who are having no better title than the Plaintiffs cannot dispossess the same.

9. Taking note of the above, proceeding to examine the validity of the registered deed (Ext.A), on examination of the evidence, it has been held that Ext.A was a mere paper transaction and by such deed, the ownership of the land has not been conferred on the Defendants 3 to 5 and as such they cannot be accepted as the owners of the suit land. Having said so, the First Appellate Court has gone to examine the alternative plea of the Defendants 3 to 5 and in that exercise, it has been said that the Plaintiffs and Nura are having the possessory title over the suit land and the Defendants 3 to 5 being the sons of Nura cannot be treated as trespassers or strangers to the suit land and thus they cannot be injuncted. With such conclusions, the First Appellate Court has dismissed the Suit filed by the Plaintiffs in its entirety.

10. This Appeal has been admitted on the following substantial question of law:-

"Whether on the face of clear finding that the Plaintiffs have proved their possession over the suit land and the plea of taking possession from the ancestor of the Plaintiffs have not been proved by the Defendants; and having further held that Ext.A, the sale deed in favour of the Defendant Nos.3 to 5 as projected by them as the triumph card is mere paper transaction and by such deed, the ownership of the land has not been conferred with them; it was incumbent upon the First Appellate Court to protect the possession of the Plaintiffs in respect of the suit land till their eviction by following due process of law."

11. It is submitted by Mr.M.K. Agarwal, learned counsel for the Appellants that when the First Appellate Court has found the

// 7 //

possession of the Plaintiffs over the suit land and has not accepted the case of the Defendants 3 to 5 that they being the owners of the suit land under Ext.A are in possession of the same, in this particular suit, the possession of the Plaintiffs over the suit land ought to have been protected as against those Defendants 3 to 5. Therefore, according to him, the First Appellate Court has committed grave error by saying that since these Defendants 3 to 5 are the sons of Nura, who is also in possession of the suit land; they cannot be as such injuncted as they cannot be said to be trespassers or strangers to the suit land.

12. Mr.T.Nanda, learned counsel for the Respondents 1 to 3 submits that Nura, who is alive is not a party to the Suit and the Plaintiffs, without making her a party, could not have maintained the Suit for the reliefs claimed. He further submits that admittedly these Defendants 3 to 5 are the sons of Nura and even if their main case as to be the owner in possession of the suit land on the strength of Ext.A is not accepted, yet by virtue of their relationship with Nura, they cannot be injuncted to possess the suit land. In view of all these above, he submits that the suit claiming the reliefs is liable to be dismissed and the First Appellate Court has followed the right path in doing so.

13. Keeping in view the above submissions, I have carefully gone through the judgments passed by the Courts below as also the plaint and the written statement.

14. In order to address the rival submission, the averments taken in paragraph-7 of the written statement are found to be of great importance. It has been stated therein that the Plaintiffs are not in peaceful, continuous and hostile possession of the suit lands since the time of their grandfather to the knowledge of all and sundry and in the process have not perfected their possessory title over the suit lands.

// 8 //

They state that they are similarly placed as the Plaintiffs as they were also in possession of the suit lands with their mother Nura. Thus, an alternative stand has been taken that the Plaintiffs having no better right, title or right over the suit land than them, they cannot be injuncted as prayed for by the Plaintiffs. Having pleaded as above, it has again been stated by these Defendants 3 to 5 at paragraph-9 of their written statement that after Chakradhar Singh Rai, Mitrabhanu Singh Rai became the absolute owner of the suit lands during the Bhogra proceeding. He was in possession of the suit land till his death. After his death, suit land were succeeded by his widows Ahalya and Kausalaya and sons of Defendants No.1, Jayakrushna and the Defendant No.2, Laxminarayan. They possessed the suit land exercising the full right, title and interest therein. So, it is stated that in the current settlement operation, the suit lands have been rightly recorded in the names of Ahalya and Kausalya and between them, there was a partition wherein the suit land has been allotted to Defendant no.2 Laxminarayan, who possessed the same being the absolute owner having right, title and interest. They have further stated to have purchased the suit land from that Defendant no.2 for a consideration of Rs.56,000/- by a registered sale deed dated 15.02.1999 which has been admitted in evidence from their side and marked as Ext.A. It is also stated that said Defendant No.2 having executed the sale deed had delivered possession of the suit land as described in the schedule given in the written statement to these Defendants 3 to 5. Thus, they claim to be in possession of the suit land having the right, title and interest therein as to have been so conferred by virtue of their purchase as above.

15. The First Appellate Court, on examination of the evidence and upon their analysis, has no uncertain terms has held that the Ext.A was

// 9 //

a mere paper transaction and by such deed, the ownership of the land as claimed to have been purchased by the Defendants 3 to 5 has not been conferred on them and as such they have not to been accepted as the rightful owners of the suit land.

16. Above clear finding has remained unchallenged by these Defendants 3 to 5. So, the only question therefore comes for being answered is that whether Defendants 3 to 5 having claimed the ownership of the suit land by virtue of Ext.A and having claimed to have got the possession of the suit land through Ext.A whether can now fall back to say that they being the sons of Nura are not liable to be injuncted in interfering with the possession of the suit land by the Plaintiffs since they cannot be treated as tress passers in relation to the suit land.

Admittedly, in the present suit, Nura is not a party and he would thus be not bound by the result of this litigation. The very plea taken by Defendants 3 to 5 that they being the owners are in possession of the suit land on the strength of Ext.A has not been accepted by clearly holding that the document held by them as the triumph card is merely a paper transaction which is not clothing them with the title in respect of the suit as the vendees under Ext.A. Thus, it appears that these Defendants 3 to 5 having asserted their possession over the suit land independent of Nura as being the bona fide purchasers for value from the real owner, who had got it in partition with Defendant no.1 in his share have failed in their attempt to so establish the same. Therefore, this Court is of the considered view that the subsequent conclusion of the First Appellate Court that the Defendants 3 to 5, being the sons of Nura, cannot be said to be the trespassers in respect of the suit land is erroneous and as such untenable. In that view of the matter, the First Appellate Court while setting aside the relief of declaration of

// 10 //

possessory title of the Plaintiffs over the suit land as passed by the Trial Court is not right by not protecting the possession of the Plaintiffs in respect of the suit land as against Defendants 3 to 5 until being evicted by following the due process of law. The answer to the substantial question of law is accordingly returned in favour of the Appellants in holding that the Plaintiffs' possession in respect of the suit land shall stand protected until they are evicted following the due process of law and till then, these Defendants 3 to 5, are injuncted from creating any disturbances in the possession of the suit land by the Plaintiffs.

The Plaintiffs' Suit is thus stands decreed only to the extent as aforesaid.

17. Accordingly the Appeal is disposed of. No order as to costs.

(D. Dash) Judge

Basu