Orissa High Court
Baidu Majhi vs Kade Majhi And Another on 2 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.92 Of 2020
(Through video conferencing mode)
Baidu Majhi ... Appellant
Mr. B.Das, Advocate
-versus-
Kade Majhi and another ... Respondents
CORAM: JUSTICE ARINDAM SINHA
ORDER
02.02.2022
Order No.
02. 1. Mr. Das, learned advocate appears on behalf of appellant, who
was defendant in the suit. He submits, the suit was for declaration and
recovery of possession. Trial Court dismissed the suit but the lower
appellate Court reversed the judgment and decreed it.
2. He draws attention to paragraphs 10 to 12 in judgment of the
first appellate Court to submit, three very important questions of law
are involved in the appeal, for its admission. First question is whether a
suit, inter alia, for declaration of title can be decreed in absence of any
title document, relying upon record in ROR. Second question is
regarding plaintiffs' burden to prove their title, when they had
fraudulently got themselves recorded in the ROR. Third question
// 2 //
involved is regarding nonjoinder of State, who is a necessary and
proper party.
3. It appears that the Courts below had as evidence, entries in the
ROR. Plaintiffs claimed declaration, and recovery of possession based
on the entries. Plaintiffs could not produce document of title. In
absence of document of title, plaintiff had sought the declaration in
respect thereof. Both Courts below went into the evidence that was laid
and the first appellate Court found that appellant (defendant) could not
substantiate his contention that the entries were fraudulently made by
plaintiffs. Judgment law on evidentiary value of entries in the RORs
and consequent presumption of title in absence of title document, was
relied upon by the first appellate Court. It came to the conclusion in
favour of plaintiffs for declaration of title in their favour.
4. The second contention is that a question arises on appreciation
of evidence. This second contention is related to the first contention
inasmuch as plaintiffs laid evidence for founding their claim on title by
relying on the entries in the ROR. Defendant having disputed the
entries, had the burden of proving that those were caused by practicing
fraud. Law is well settled that fraud must be pleaded and proved. The
first appellate Court did not find satisfaction in appellant (defendant)
having pleaded or proved fraud on its contention of the entries relied
// 3 //
upon by plaintiffs. The second contention also does not merit
formulation of a question for admission of the appeal.
5. The third contention for a question to be formulated is that
State was not made party. This contention of nonjoinder was dealt with
by the appellate Court in paragraph 12 of its judgment. There is
nothing wrong in the reasons given therein as they are founded in law.
No question arises on this contention as well.
6. The appeal is dismissed.
(Arindam Sinha)
Judge
Prasant
