Basanta Kumar Behera & Another vs Padmabati Nayak & Others
2021 Latest Caselaw 11929 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  RSA No.313 of 2009

            Basanta Kumar Behera & Another           ....         Appellants
                                                   Mr.Manoj Kumar Mohanty
                                        -versus-

            Padmabati Nayak & Others                 ....        Respondents

                      CORAM:
                      MR. JUSTICE D.DASH
                                        ORDER

22.11.2021 Order No.

07. 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 25.04.2009 and 18.05.2009 respectively passed by the learned Additional District Judge, Kendrapara in R.F.A. No.31 of 2005.

By the said judgment, while dismissing the First Appeal filed by present Appellants being the unsuccessful Plaintiffs in the Trial Court, under section 96 of the Code, has confirmed the judgment and decree dated 15.09.2005 and 01.10.2005 respectively passed by the learned Civil Judge, Junior Division, Pattamundai in T.S. No.75 of 2001.

3. The Respondents were the Defendants before the Trial Court and had been arraigned as such in the suit filed by the presnt Appellants as the Plaintiffs.

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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 Plaintiffs' case, in short, is that the land in question was the 'Sthitiban' agricultural land of Hadbibandhu Moharana and it stood so recorded in his name in the record of right in the last settlement operation. Said Hadibandhu, being in exclusive possession and enjoyment of the land, had donated an area of Ac.0.04 decimals to the private deity, namely, Sri Bhagabatgadi Gosain Marfat Sri Ranghadhar Moharana. Along with this land of Ac.0.04 decimals, some other properties had also been gifted by the registered gift deed dated 18.3.1983 followed by delivery of possession. It is said that since the time of gift, the marfatdar of the deity is in peaceful possession and enjoyment of the suit land. Subsequently, the deity and its marfatdar being in urgent need of money for the benefit of the deity and to meet the need as to performance of Niti Kantis and Sebapuja of the deity, sold away the gifted land to the Plaintiffs by registered sale deed dated 09.10.1998 for valuable consideration and the Plaintiffs since then being the owners, are in possession of the same. It is stated that after the sale of the suit land to the Plaintiffs, neither Hadibandhu nor the deity nor its marfatdar had any right whatsoever in respect of the land in question. This Hadibandhu, however, again has illegally sold away the land of Ac.0.03 decimals from out of that land of Ac..04 decimals to the predecessors-in-interest of Defendants 1 and 2 and Defendants 3 and 4 vide registered sale deed. That came to the knowledge of the Plaintiffs on 04.06.2000 when the Defendants threatened that they would construct pucca

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house over the suit land. So, the matter was enquired into and ascertained that the suit land has been recorded in the name of the Defendants by an order passed in Mutation Case No.2713 of 1999. The mutation appeal had been preferred. However, when the Defendants immediately wanted to raise pucca construction over the suit land, proceeding under section 144 Cr.P.S. was initiated. The order passed therein being not obeyed by the Defendants, the suit has come to be filed.

6. The Defendants, in their written statement, while traversing the plaint averments, have admitted that Hadibandhu was the recorded owner of the suit land. It is stated that Hadibandhu being in need of money, had sold the suit land to them on receipt of valuable consideration and he had delivered the possession of the suit land to them which is accordingly resting with them. They further stated that Hadibandhu had disclosed before them about the earlier registration gift deed and had stated that on the wrong advice of his younger son Rangadhar, although he had executed the documents, the same had stated that the same has never been acted upon and there being no family deity Bhagabata Gosain, then in existence, the gift itself was without any objective and purpose and it was merely a creation of Rangadhar to send a warning signal to his elder brother. They state that Rangadhar, being then present at the relevant time, had also disclosed that the deed of gift had come into being in order to give a warning to his elder brother.

7. On the above rival pleadings, the Trial Court has framed twelve issues. Having taken up issue nos.8, 9 and 10 as to the competing claim of the right, title and interest of the parties over

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the suit land and the entitlement of the Plaintiffs to the reliefs claimed in the suit, the Trial Court has returned the answers against the case of the Plaintiffs.

The Plaintiffs thus being non-suited having carried an Appeal under Section 96 of the Code, have also been unsuccessful. This is how the present Appeal has come to be filed.

8. Mr.M.K.Mohanty, learned counsel for the Appellants submits that when the registered deed of gift standing in favoiur of the deity represented by its marfatdar has not been declared void at the instance of the donor or his successor, the courts below have erred in law by saying that there being no evidence as to the installation or consecration of the deity on a particular day prior to the execution of the deed of gift, the same is invalid in the eye of law. He submits that by virtue of the registered deed of gift and its acceptance by the marfatdar of the deity, the property was no more in the hands of the Hadibandhu and in view of that position, he had no other authority to execute the sale deed in favour of the Defendants and thus, the Defendants having no right, title over the property when have advanced their claim over the same, the Courts below have fallen in error by not decreeing the suit for recovery of possession and issuing permanent injunction as prayed for. He, therefore , submits that the above is the substantial question law standing to be answered in this Appeal.

9. Keeping in view the above submissions, I have carefully gone through the judgments passed by the Courts below.

10. on the rival case as projected, it appears that the crucial issues, which being answered, has decided the fate of the suit are

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issue nos.8, 9 and 10. As already stated, those concern with the competing claim of right, title and interest of the Plaintiffs and the Defendants in so far as the suit land is concerned. The suit being one filed by the Plaintiffs for recovery of possession and injunction, the same has been resisted by the Defendants staking to be having the right, title, interest and possession over the suit land. Admittedly, Hadibandhu was the owner of the land in suit. Registered deed of gift is said to have been executed by him on 18.03.1983. When the Plaintiffs specifically rely upon this registered deed as to have taken its full effect, the Defendants have projected the case that it having simply come into being had never been so acted upon by the parties as there had been no delivery of the possession of the land by the donor-Hadibandhu to his younger son, Rangadhar and that question had not arisen as there was no such family deity in existence being earlier installed and consecrated and thus that the said act was only to give a warning to the elder son of Hadibandhu. In view of this position, the Courts below having given emphasis upon the factum of installation and consecration of the family deity, this Court finds the approach to be absolutely in order as that itself is decisive in the matter of the validity of the deed of gift as to if the same has been accepted and acted upon or not, which are the important conditions for the gift to have its final effect and accordingly, come into play. The Courts below next have gone through the oral as well as documentary evidence let in by the parties. Undertaking an exhaustive exercise, the First Appellate Court has concurred with the view taken by the Trial Court that the Plaintiffs have failed to prove the above said facts as to installation and consecration of the family deity and its

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existence at the time of execution of the so-called gift by Hadibandhu, which is relied upon by them to have formed the foundation of their claim over the suit land by virtue of subsequent purchase.

In course of hearing, learned counsel for the Appellants has not been able to point out any such material evidence indicating that those to have been overlooked/sidelined or that the Courts below, at some point of time while appreciating the evidence, have taken some extraneous matter into consideration so as to persuade this Court to take a view that had those all been rightly done, the finding on this factual aspect would not have been the one as has been returned.

11. For all the aforesaid, the submission of the learned counsel for the Appellants that there arises the substantial question of law as stated at paragraph-8 cannot be countenanced with. It is thus held that the Appeal does not merit admission.

12. In the result, the Appeal stands dismissed. No order as to costs is, however, passed.

(D. Dash), Judge.

Basu