Bhawani Bag & Others vs Pradeep Kumar Hota
2021 Latest Caselaw 11928 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                RSA No.428 of 2009

            Bhawani Bag & Others                    ....          Appellants
                                                              Mr.K.A. Guru
                                        -versus-

            Pradeep Kumar Hota                      ....         Respondent
                                                               Mr.N.C. Pati
                                                                 Advocate

                      CORAM:
                      MR. JUSTICE D.DASH
                                        ORDER

22.11.2021 Order No.

03. 1. This matter is taken up through Hybrid Arrangement

(Virtual/Physical Mode).

2. The Appellants, by filing this Appeal under section 100 of the Civil Procedure Code (for short, 'the Code'), have assailed the judgment and decree dated 08.05.2009 and 23.05.2009 respectively passed by the learned Ad hoc District Judge (FTC), Jharsuguda in R.F.A. No.02 of 2007.

By the said judgment, while dismissing the First Appeal filed by present Appellants, being unsuccessful Defendants in the Trial Court under section 96 of the Code, has confirmed the judgment and decree passed by the learned Civil Judge, Senior Division, Jharsuguda in T.S. No.158/51 of 1996/2002.

3. The Respondent has filed the suit as Plaintiff arraigning the present Appellants as the Defendants.

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4. 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.

5. The Plaintiff's case, in short, is that the land in schedule-A was a piece of Gochar land which stood recorded in the Hamid settlement under khata no.31, plot no.153. Subsequently, it had been settled in the name of one Gurucharan Bagar and as such muted in his name in the year 1955-56. Gurucharan accordingly possessed the same till his death whereafter his son Khira Sankar continued to possess the same. During this time, Khira sold a portion of schedule-A land to one Laxminarayan Maharana by registered sale deed dated 10.02.1975. Laxminarayan, pursuant to the said sale being delivered with the possession of the suit land, came to possess the same. He then sold the land to the Plaintiff by registered sale deed dated 12.01.1987. Accordingly, the Plaintiff remained in possession of the suit land having the right, title and interest over the same. It is said that in Mutation Case No.1469 of 1991, order was passed in his favour for recording of the suit land. The Defendants' name since had appeared in the record of right erroneously, they had been noticed. After the said order, in the mutation case, Defendant No.1 being aggrieved, had carried mutation appeal, which stood dismissed. However, a revision being preferred, the orders passed in the mutation case as also the mutation appeal have been set aside. So, the Plaintiff filed the suit for declaration of his right, title, interest and possession. Defendant No.1, coming to contest the suit, questioned that the Plaintiff has no right, title and interest over the said land. According to his case, one Chandrabhanu Singhdeo being the moufidar had issued an

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unregistered patta in the name of Mangala Bag, the ancestor of Defendant No.1 way back on 17.01.1948 and based upon that settlement authority had issued the record of right in his favour which has not been challenged.

6. On the above rival pleadings, the Courts below on the most important issue as to the competing claim of right, title and interest over the suit land has held that the Plaintiff has proved his case. Accordingly the suit has been decreed declaring the right, title and interest of the Plaintiff over the suit land.

6. Mr.K.A. Guru, learned counsel for the Appellants submits that the Courts below in rendering the said finding as to the right, title and interest over the suit land to be resting with the Plaintiff, have not considered the evidence on record in their proper perspective. He further submits that the unregistered patta issued by Chandrabhanu Singhdeo in favour of the ancestor of the Defendant No.1, has not been given its due weightage as also other important factor that the record of right published in the current settlement operation to have gone unchallenged from the year 1982 till the suit instituted in the year 1996 has not been taken into account. He, therefore, urges for admission of this Appeal framing the above as the substantial question of law.

Mr.B.Das, learned advocate on behalf of Mr.N.C. Pati, learned counsel for the Respondent submits all in favour of the findings rendered by the Courts below. According to him, the concurrent finding of the Courts below holding the Plaintiff to be having the right, title and interest over the suit land notwithstanding the record of right standing in the name of the Defendants as

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published in the year 1982 being based on just and proper appreciation of evidence on record, stands no such infirmity therein. He, therefore, contends that the Appeal does not merit admission.

9. In order to address the above rival submission, I have carefully gone through the judgments passed by the Courts below.

10. Admitted position stands that in the Hamid settlement, the land in question stood recorded under khata no.31, plot no.153/3. The record was prepared on 20.12.1949 and Gurucharan Batgar was the recorded owner therein. Registered sale deed (Ext.2) duly proved reveals that Khira Sankar, son of Gurucharan had sold the suit land to one Laxminarayan and he, in turn, vide Ext.3, the sale deed dated 12.01.1987 as has been proved by the Plaintiff has sold the land to the Plaintiff. The Defendants claim is based on Ext.A, an unregistered patta. On this basis, the record of right in the last settlement appears to have been prepared only in the year 1982 that too the Defendant has not adduced any such evidence providing justification behind said recording. In the circumstances, the courts below are not found to have committed no mistake by relying upon the documents (Exts.4, 6, 7 and 8) proved from the side of the Plaintiff as sufficient to rebut the presumption of possession of the suit land in favour of the recorded tenant as per the MS settlement record. In view of the above obtained evidence, the Plaintiff's having been found to have proved his right, title and interest over the suit land on the strength of Ext.1, 2 and 3 as the ultimate purchaser from Laxminarayan, this Court finds no such infirmity therein.

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11. In that view of the matter, the submission of the learned counsel for the Appellants fails. It is thus held that the Appeal does not merit admission.

Resultantly, Appeal stands dismissed. However, there shall be no order as to costs.

(D. Dash), Judge.

Basu