Pravakar Sahu & Another vs Unknown
2021 Latest Caselaw 10940 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                 RSA NO.318 OF 2018

           In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree dated 08.05.2018 and
     19.05.2018 respectively passed by the learned Additional District Judge,
     Balasore in RFA No.57/46 of 2010-2006 in dismissing the Appeal and
     thereby confirming the judgment and decree dated 06.03.2006 and
     10.03.2006 passed by the learned Civil Judge (Sr. Division), Balasore in
     C.S. No.16 of 2004.
                                     .........

            Pravakar Sahu & Another                       ::::   Appellants.

                                       -:: VERSUS ::-
             Pruthiviraj Pattnayak & Others                        :::: Respondents.

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

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             For Appellants                 ...      M/s. D.P. Sahoo, Advocate,
                                                   M/s. Sailabala Jena, S. Mohanty,
                                                   T.P. Tripathy, Advocates
                                                   M/s. S.N. Mishra, B. Dash,
                                                   B.N. Mishra, K. Behera, Adv.
                                                   M/s. B.P. Tripathy, S. Ch. Behera,
                                                   P.R. Mishra, S. Acharya, Advocates.
             For Respondents                ...      ---     ---     ---    ---
                                              ------
     PRESENT:
                      THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing: 20.09.2021 :: Date of Judgment:26.10.2021

--------------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section-100 of the

Code of Civil Procedure, 1908 (for short, 'the Code') have assailed the

judgment and decree dated 08.05.2018 and 19.05.2018 respectively {{ 2 }}

passed by the learned Additional District Judge, Balasore in RFA

No.57/46 of 2010-2006 in dismissing the Appeal and thereby confirming

the judgment and decree dated 06.03.2006 and 10.03.2006 respectively

passed by the learned Civil Judge (Sr. Division), Balasore in C.S. No.16

of 2004.

2. The Respondents as the Plaintiffs have filed the suit for declaration

of right, title and interest over the suit land and issuance of permanent

injunction by restraining the Appellants-Defendants from interfering in

their peaceful possession over the said land.

The Suit being decreed and the Defendants having suffered thereby

had carried an Appeal under Section-96 of the Code. On hearing since

said Appeal has been dismissed; they have approached this Court in

carrying the Second Appeal.

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 Trial Court.

4. Plaintiff's Case:-

One Bimala Damodar Raj being the owner had sold Ac.0.0183/4

decimals of land to Amulya Ratan, Ram Ratan and Prema Ratan Das. In

doing so, he has executed the registered sale-deed on 11.07.1977. The

three purchasers as named possessed the suit land with other lands in total

to the extent of Ac.0.027 decimals. Then, two years after their purchase,

{{ 3 }}

they sold the land to one Indumati Das under registered sale-deed dated

26.09.1979. Said Indumati having possessed the land measuring Ac.0.018

decimals which she had purchased right from the end of 1979; in the mid

of the year, 1993, sold the land admeasuring Ac.0.018 decimals to the

Plaintiff Nos.1 and 2 and the rest of Ac.0.009 decimals of land to the

Plaintiff No.3. It is stated that the Defendants have somehow been able to

obtain the registered sale-deed from Ram Ratan and Prem Ratan, the two

of the vendors of Indumati on 26.10.1987. This transaction as also the

registered sale-deed so obtained is attacked as invalid and inoperative and

it is said that althrough despite said created and so obtained sale-deed, the

Plaintiff Nos.1 and 2 as also Plaintiff No.3 have been in possession of

their respective portions of land as owners thereof. During Raghupati

Major Settlement, at the preliminary stage Not Final Record of Right had

been issued in favour of the Plaintiffs. But thereafter at the final stage, the

Defendants having gained over the Settlement Authority could manage in

getting their names included with the Plaintiff No.1 and 2 as joint tenants

in the Final Record of Right in respect of schedule-A land only. The

Record of Right in respect of schedule -B land however was published

showing the name of Plaintiff No.3 as the sole tenant. It is stated that the

property described in schedule-B of the plaint stands under the M.S.

Khata No.88 and comprises of Plot No.297 measuring Ac.0.06 decimals

which corresponds to RMS Khata No.144, Plot No.125, measuring

{{ 4 }}

Ac.0.06 decimals as against the total of Ac.0.012 decimals which is the

purchased property of Plaintiff No.3. Similarly, 'A' schedule property

under M.S. Khata No.79, Plot No.300 corresponds to RMS Khata No.121,

Plot No.129 and the same measures Ac.0.06 decimals. That schedule -A

property corresponds to M.S. Khata No.114, Plot No.125 in respect to

land measuring Ac.0.06decimals out of Ac.0.012 decimals which is the

purchased property of the Plaintiff No.1 and 2. Thus the Plaintiffs claim

that they are the owners in possession of schedule-A property and

Plaintiff No.3 is the owner in possession of schedule-B property.

Accordingly, in this suit, they have sought for the reliefs of declaration of

their right, title and interest and injunction.

5. Case of the Defendants:-

The Defendants purchased Ac.0.40¾ decimals including the

Schedule-A & B lands from Ram Ratan and Prem Ratan. Said Ram Ratan

and Prem Ratan during their minority being represented by their father

guardian Pulin Behari had purchased the property from Damodar Raj and

others. In the Raghupati Settlement during the initial stage, when their

claim was disallowed, they had filed the Appeal and finally the land under

RMS Khata No.114 has been recorded jointly in their name and the

Plaintiff Nos.1 and 2.

6. Given the rival pleadings, the Trial Court having framed in total

eight issues has proceeded to answer those by scrutinizing the evidence

{{ 5 }}

both oral and documentary on record in the backdrop of the rival case in

support of the respective claims.

The Trial Court's finding on Issue Nos. 4 & 5 have been in favour

of the Plaintiffs that they have got the right, title and interest over the

property in question on the strength of their purchase as the owners and

that they are in possession of the same. Coming to the other two issues;

relating to the one of which is specifically on the claim of the Plaintiff

Nos. 3, the same has also been answered in the affirmative. Accordingly,

the Plaintiffs have been successful in getting the Suit decreed in full.

7. Grieved by the result of the suit, causing sufferance, the Defendants

preferred the First Appeal. The lower Appellate Court addressing the rival

contentions raised before it, having gone to judge the sustainability of the

findings on all those four issues after completion of the exercise of

appreciation of evidence at its level has ultimately arrived at the same

answers as returned by the Trial Court. The Defendants contention as also

their case and claim having thus been repelled, the result of the Suit in the

Trial Court in passing the decree in favour of the Plaintiffs has withstood

the tests. Hence, the present Appeal.

8. Learned counsel for the Appellants (Defendants) submitted that the

documents produced by the Plaintiffs having not been duly proved and

admitted in evidence as required under the law, those have been

erroneously marked as Exts. 2 to 12 and in that view of the matter, said

{{ 6 }}

Exts. 2 to 12 are not to be looked into at all for any purpose in the present

suit and for that the claim of the Plaintiffs based on the documents

marked Exts.2 to 12 ought to have been disallowed. He submitted that the

courts below having lost sight of above important aspect touching the root

of the matter have committed grave error by not holding that the right,

title, interest as also possession over the suit land of the Plaintiffs has not

been established. He also submitted that on a plain reading of the

averments of the plaint, when it reveals that the suit for the reliefs claimed

is barred by limitation, the Courts below ought to have dismissed the suit

on that score..

In order to highlight the first limb of submission, he contended that

the documentary evidence marked Exts.2 to 12 from the side of the

Plaintiffs are inadmissible in law as none of the Plaintiffs witness has

come to state in getting those admitted in evidence. It was next submitted

that the Courts below under the circumstance ought not to have looked

into those documents Exts.2 to 12 for any purpose whatsoever in support

of the Plaintiffs case as projected. According to him, these are the

substantial questions of law which stand to be answered here in this

Appeal. He therefore, urged for admission of this Appeal.

9. Keeping in view the submissions made, I have carefully gone

through the judgments passed by the Trial Court as well as the Appellate

{{ 7 }}

Court as also the deposition of the witnesses examined by the parties as

placed on record.

In the backdrop of above, the exercise of search as to if the

substantial questions of law as contended by the learned counsel for the

Appellants are so arising for being answered hereby has now to

commence.

10. As against the case of the Plaintiffs as stated in the foregoing

paragraph as also the case advanced by the Defendants, the parties have

pilotted evidence at length. From the side of the Plaintiffs, while two

witnesses have been examined, the Defendants have also examined two

from their side. Out of the two, from each side, one is the independent

witness and the other one is one among the respective parties. The oral

evidence on record from the side of the Plaintiffs thus having come from

the lips of two witnesses, and so also from the two examined from the

side of the Defendants; the documentary evidence let in by them are

voluminous. When the Plaintiffs have admitted 16 (sixteen) nos. of

documents marked Exts.1 to 16; the Defendants do not also lag behind.

They have proved 12 (twelve) nos. of documents marked as Exts.A to L.

Both sides having filed the affidavits as required under Order-18 Rule-4

of the Code as to the statement of their respective witnesses' in-chief,

cross-examination has been made by the adversary.

{{ 8 }}

On going through the depositions, it is seen that they had referred

to the documents and the parties were well aware of all those which had

been filed and had full knowledge thereof as none has complained to have

not received the respective list of documents beforehand. The Plaintiffs

witnesses have been cross-examined from the side of the Defendants. This

contention that the documents admitted in evidence and marked Exts.1 to

16 from the side of the Plaintiffs are not in conformity with the law has

neither been raised at the time of argument before the Trial Court nor has

been so contended before the First Appellate Court in seisin of

continuation of the Suit having all the power as that of the Trial Court. In

such situation, for the first time consideration on this aspect at the stage of

Second Appeal, in my considered view, is permissible only when grave

prejudice is shown to have been caused thereby to the Defendants or it is

shown that there has been flagrant violation of justice.

In the case at hand as it appears even when the Plaintiffs witnesses

have been cross-examined at length from the side of the Defendants, this

aspect was not put to them directly nor even been hinted at them

indirectly, more particularly at the Plaintiff No.3 when he had been on the

witness box as P.W.1.

At any time before the Trial Court no such objection has been given

nor it was argued. Thus, even though it is said that the legal procedure has

been deviated at some point of time, the Defendants appear to have

{{ 9 }}

waived the objection on that score from that stage of hearing and

onwards. For that it has to be deemed to have been so done as by that they

were not prejudiced. The first limb of submissions of the learned counsel

for the Appellants thus is found to be of no force.

11. As regards the contention in relation to the Suit being barred by

limitation, it is seen that the Defendants while contesting the suit and

pursuing the Appeal have not specifically raised this issue. It was

submitted by the learned counsel for the Appellants that even if the party

does not raise this question of limitation standing on the way of the Suit

or proceeding, keeping in view the factual settings as also the reliefs

claimed, the Courts were under legal obligation to rule over the same.

12. In addressing the above contention above, first of all the

Memorandum of Appeal filed before this Court is required to be seen to

ascertain as to for what reason and why it is claimed that the Suit is barred

by limitation. The said aspect is found to have been highlighted at

paragraph-4 of the Memorandum of Appeal.

It is thus reproduced hereunder:-

"4.. That, the Defendants/Appellants contested the aforesaid suit for filing their joint written statement inter alia denying the averments made in the plaint. In the written statement the present Appellants being the Defendants in the Court below have stated that they purchased Ac.0.40 ¾ dec.

{{ 10 }}

of land including the suit land from Rama Ratan and Prema Ratan, sons of Pulin Bihari Das, who purchased the suit land from Damodar Raj. During Raghupati Major Settlement operation as the Settlement Authority disallowed claim of the defendants, they preferred Settlement Appeal No.192/94 &194/94. After hearing both sides final RMS ROR in respect of Khata No.114 was published in the names of defendants but RMS Khata No.121 was wrongly published in the joint names of the Plaintiffs and Defendants. The Defendants/ Appellants further pleaded that they are in possession over the suit land since the date of their purchase and therefore prayed for dismissal of the suit with cost as the same is also barred by limitation."

13. It has been stated that the Defendants always claimed to have

purchased Ac.40.3/4 decimals of land including the suit land from Ram

Ratan and Prem Ratan sons of Pulin Behari and the vendors to have

acquired the suit land on the strength of purchase from one Damodar Raj.

In Raghupati Major Settlement Operation at the initial stage, the claim of

the Defendants was disallowed and upon Appeal, it has been allowed in

part. That is in so far as the land under Khata No.114, in the schedule-A,

the record of right has been issued showing the Plaintiff Nos.1 and 2 and

Defendants as joint tenants whereas in respect of schedule-'B' the record

of right stands in the name of Plaintiff No.3. The lands under both the

schedules are the suit land. When the Plaintiffs claim their right, title and

interest over the lands under both the Khatas being described in Schedule-

{{ 11 }}

A & B of the plaint; the Defendants also so advance their rival claim that

they have the right, title and interest and possession over the suit land.

The Suit being one for a decision as to the rival claim of title, non-filing

of any Suit or proceeding in challenging the record of rights published in

the settlement operation within this period stipulated under the Orissa

Survey and Settlement Act as also absence of any specific prayer on that

score of correction of record of right are of no such legal significance

falling fatal to the Suit. Despite the Record of Rights standing for quite

some period, the suit based on title and possession is not barred by

limitation.

It has been stated in the paragraph-4 in an evasive manner that

since the Defendants have claimed the possession over the suit land since

the date of their purchase, the suit ought to have been held to be barred by

limitation. The Courts below have decided the right, title and interest over

the suit land in favour of the Plaintiffs. In that view of the matter and in

the absence of any specific case being projected by the Defendants even

in the alternative as to their perfection of title over the same by adverse

possession, the submission of the learned counsel for the Appellants that

the Courts below ought to have held the Suit as barred by limitation

squarely fails.

Coming to examine the sustainability of the finding on the right,

title and interest over the suit land, the lower Appellate Court has dealt the

{{ 12 }}

matter at paragraph-11 of its judgment. The discussion of evidence for the

purpose appears to be vivid.

When admittedly that father guardian Pulin Behari had purchased

the land in favour of their minor sons by spending funds from his own

purse and when as provided under Section-60 of the Limitation Act, none

of the sons has filed any suit for declaration that the sale made by their

father without permission as required under the provision of Section-8(1)

of the Hindu Minority and Guardianship Act is void or that they have

avoided the sale by exhibiting positive conduct in support of avoidance of

the transaction that sale of the suit land by Ram Ratan, Amulya Ratan and

Prem Ratan through their father guardian to meet their educational

expenses and for purchasing other lands has been held as valid in holding

the field. The view taken by the lower Appellate Court is found to be well

in order and thus there also surfaces no such substantial question of law

touching that aspect.

In the wake of aforesaid, the judgments and decrees passed by the

Courts below hereby receive the seal of approval.

14. Resultantly, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Narayan