Tapneswar Meher vs Unknown
2021 Latest Caselaw 10988 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                   RSA No.177 of 2003

           In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree dated 06.08.2002 and
     16.08.2002 respectively passed by the learned Additional District Judge
     (FTC), Bargarh in Title Appeal No.41/57 of 1996-2001.
                                     .........

            Tapneswar Meher                               ::::   Appellant.

                                       -:: VERSUS ::-
             Rahas Barik & Others                          :::: Respondents.

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

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             For Appellant                  ...       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: 05.10.2021 :: Date of Judgment: 27.10.2021

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

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

judgment and decree dated 06.08.2002 and 16.08.2002 respectively

passed by the learned Additional District Judge (FTC), Bargarh in Title

Appeal No.41/57 of 1996-2001.

{{ 2 }}

2. By the above judgments and decrees, the appeal filed by the

present Appellant under Section-96 of the Code being unsuccessful as

the Plaintiff before the Trial Court has been dismissed and the judgment

and decree dated 28.06.1996 and 12.06.1996 passed by the learned Civil

Judge (Senior Division), Padampur in Title Suit No.21 of 1991 have

been confirmed and the suit filed by the Appellant as the Plaintiff

against the Respondent-Defendant has been dismissed.

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 Barik was the original owner in possession of the suit

land measuring area Ac.0.075 decimals under Hamid Settlement Plot

No.411(P) under Holding No.11 assigning with M.S. Plot No.853(P)

under Holding No.96 in village Paikamal. She had inherited the same

from her parents. Bimala sold the suit land to the Plaintiff by registered

sale-deed dated 08.12.1975 for consideration of Rs.1,000/-. It is stated

that pursuant to the said sale, the Plaintiff had been delivered with the

possession of the suit land by said vendor namely, Bimala.

The Defendant Nos.1, 2 and 3 are the sons of Bimala and on

19.06.1976, they executed a deed acknowledging the sale made by their {{ 3 }}

mother in favour of the Plaintiff. The Plaintiff was then in service and

staying outside. In the year, 1989, he applied for mutation of the suit

land. The Defendant Nos. 1 to 3 being noticed filed their objection

alleging that the consideration amount as promised for the transaction

had not been paid by the Plaintiff to Bimala. The prayer for mutation

was rejected with specific finding that despite the sale, the Plaintiff has

not been in continuous possession of the suit land. The Defendant Nos.4

to 9 have in the meantime have purchased the suit land from Defendant

Nos. 1 to 3 and therefore, the Plaintiff in the suit for declaration of right,

title and interest as also confirmation of possession and in the alternative

for recovery of possession and permanent injunction as arraigned those

subsequent purchasers as parties.

5. Case of the Defendants:-

The Plaintiff actually approached Bimala and Defendant Nos. 1 to

3 to purchase Ac.0.025 decimals of land and the agreed price was Rs.40

per decimal. It is stated that behind the back of the Defendant No.1 to 3

and prevailing upon their mother namely, Bimala, the Plaintiff being a

shrewd person by manipulation has managed to obtain the registered

sale-deed showing the extant of land as soled to be Ac.0.075 decimals

for consideration of Rs.1,000/-. It is stated that the Plaintiff has not paid

the full amount and he had made token payment of Rs.750/-. The {{ 4 }}

Defendants when subsequently approached the Plaintiff to pay the

balance amount; he avoided on some pretext or others and then files the

mutation case where objection was raised. The possession of the suit

land is remaining with the Defendants is purchasers from them are now

have entered into possession and accordingly the land had been mutated

in their name. It is stated that the Plaintiff has practiced fraud on the

mother of the Defendant Nos.1 to 3 and having remained silent for 12

years as all of a sudden sprang into action.

6. On the above rival pleadings, the Trial Court framed six issues.

It appears that Issue No.1 is most important one and its answer finding

has decided the fate of the suit. The trial Court upon analysis of

evidence on record has recorded the finding that the Plaintiff has played

fraud on his vendor, late Bimala Barik was an illiterate pardanashin lady

and accordingly the sale-deed has been found to be void. With such

finding, the Trial Court has said that the Plaintiff has not acquired any

right, title and interest of the suit by virtue of that registered sale-deed

dated 08.12.1975. Allegations as finally laid, the Trial Court to dismiss

the suit.

The lower Appellate Court being moved by the unsuccessful

Plaintiff has proceeded to examine the sustainability of the answer

recorded by the Trial Court on the Issue No.1. In going to judge the {{ 5 }}

same having discussed the evidence on record from all angles. The

conclusion has been rendered that the Plaintiff has derived no right, title

and interest over the suit land by virtue of said sale-deed as claimed.

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

through the judgments passed by the Courts below. The Plaintiff's claim

to have purchased the suit land by virtue of the registered sale-deed

dated 08.12.19975 and for the first time, he has moved for recording of

the suit land in his name in the year, 1989. When the Defendant Nos. 1

to 3 sold portions out of the suit land to different persons who got their

purchased land mutated and obtained the record of right with such

correction. These features clearly suggest that the Defendants have been

in possession of the suit land and they having sold the suit land to

different persons. The Mutation Authority has passed order in their

favour finding their possession in the field.

Admittedly, the vendor is a lady remaining confined to the four

walls of the house. The acreage involved in the transaction is Ac.0.075

decimals, its consideration as is evident from the sale-deed projected as

triumph card by the Plaintiff is Rs.1,000/-, which comes to Rs.13/- per

decimals. It's unconscionable to say that in the year, 1975 any

immovable property of any part of the State would come to be valued at

Rs.13/- per decimal. In this backdrop, let's now plough through the {{ 6 }}

evidence to see as to how far the allegation of fraud has been

established. The Courts below have concurrently found that the Plaintiff

was never in possession of the suit land. Such finding of fact does not

appear to be the outcome of perverse appreciation of evidence and

nothing surfaces on record to show that the Courts below have ignored

certain material evidence on that score or have taken certain extraneous

evidence into consideration in recording the finding. The specific

allegation of the Defendants is that land of area of Ac.0.075 decimals

was never the subject matter of discussion for the transaction between

Bimala and them on one hand with the Plaintiff with the other. In view

of all these, when the executants is pardanashin lady, hailing from rural

pocket of the State, there remains no evidence from the side of the

Plaintiff to show that Bimala had duly executed the registered sale-deed

Ext.1 having full knowledge and understanding not only as to the

contents of the documents but also specifically as to the acreage

involved in the said transaction. The evidence from the side of the

Plaintiff is not thee to establish the fact that the transaction between

Bimala and the Plaintiff was having the involvement of specific area of

land as noted. In that view of the matter, the Courts below are found to

have rightly answered the issue that the Plaintiff has not derived by any

right; title and interest by virtue of registered sale-deed vide Ext.1.

{{ 7 }}

7. For all the aforesaid discussion and the submission of the learned

counsel for the Appellant, that there arises the substantial question of

law as indicated in paragraph-7 of the judgment arises for consideration

stands to be answered cannot be countenanced.

8. Accordingly, the RSA is dismissed. No order as to cost.

(D. Dash), Judge.

Narayan