Afr Tabun Bibi vs Supta Chatterjee & Others
2023 Latest Caselaw 10047 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                             RSA No. 261 of 2012

             (An appeal under Section 100 of the Code of Civil Procedure)
                                    ---------------
AFR     Tabun Bibi                         ....               Appellant

                              -Versus-

        Supta Chatterjee & Others             ....        Respondents

        Advocate(s) appeared in this case:-
        _______________________________________________________

          For Appellant             : Mr. S.K.Mishra, Sr. Advocate with Ms.
                                    P.P. Mohanty, Advocate.
          For Respondent            : Ms. D.P.Mohanty, R.K. Nayak,
                                    T.K.Mohanty, P.K.Swain & M.Pal
                                     Advocates

                                    .
        _______________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA
                                    JUDGMENT

25th August, 2023

SASHIKANTA MISHRA, J.

The present appeal is against the confirming judgment

passed by learned District Judge, Baleswar on 21.04.2012

followed by decree in RSA No. 129 of 2009 whereby the

judgment and decree passed by learned Civil Judge (Senior

Division), Baleswar on 31.10.2009 followed by decree in C.S.

No. 739 by 2002-I was confirmed. The suit was filed by the

plaintiff-appellant for declaration of title with consequential

reliefs such as confirmation of possession with alternative

prayer for recovery of possession and permanent injunction.

Said suit was dismissed by the Trial Court.

2. The present appeal was admitted on the following

substantial questions of law:

"(i) Whether the learned Courts below are justified in dismissing the suit holding, inter alia, that the suit is barred under Section 42 of the Orissa Survey and Settlement Act as well as Sections 64 and 65 of the Limitation Act?

(ii) Whether the finding of the learned lower appellate Court that the finding of the Assistant Settlement Officer cannot be set at not after lapse of 12 years is correct?"

3. The plaintiff's case, briefly stated is that her father,

Sultan Khan purchased Ac 0.04 decimals of land from Sk.

Samatulla, the original recorded tenant of C.S. Plot No. 622

under C.S. Khata No. 24 measuring Ac. 0.63 decimals. Said

Sk. Samatulla orally gifted the remaining property (Ac. 0.059

decimals) to the plaintiff in presence of villagers, witnesses

and relations. The plaintiff continued to possess such land

since then. Sultan Khan sold the said Ac. 0.04 dec. of land to

Feluram Chatterjee and his wife Renubala, who in turn, sold

the same land to one Durga Sankar Chatterjee, father of the

present defendants, who are in possession. The plaintiff

further claims that during major settlement, the area under

the defendants was increased to Ac. 0. 054 dec. and by Ac.

0.014 dec. to the east of the plaintiff's land, which was not

part and parcel of the land purchased by the father of the

defendants but of C.S. Plot No. 507 belonging to her. Thus,

alleging that the recording of the name of the defendants in

M.S. ROR was wrong, illegal and claiming title and

possession over their land, the plaintiff filed the suit.

4. The defendants' case is that the suit land is actually not

part and parcel of C.S. Plot and Khata as mentioned in the

plaint schedule but pertains to C.S. Plot No. 612 whereas the

area of AC. 0.04 dec. belonging to the plaintiff pertains to Plot

No. 622. It is further claimed that the defendants are in

possession of Plot measuring Ac. 0.054 dec. for more than 30

years. They further challenged the maintainability of the suit

on the ground of non-joinder of parties and estoppel as

previously, the plaintiff's father had filed a suit against the

father of the defendants being O.S. No. 2940/8 wherein, he

had admitted the possession of the defendants. The claim of

the plaintiff regarding gift of the land in question as also title

and possession was specifically disputed being barred by the

law of limitation.

5. Basing on the rival pleadings, the Trial Court framed 8

issues of which the following two issues were held to be

pertinent and therefore taken up for determination at the

outset.

Issue No. 5 "Whether the plaintiff has got right, title, interest and possession over the suit land? Issue No. 6 "Whether the suit property is the part and parcel of C.S. Khata No. 24, C.S. Plots 272 & 507 corresponding to M.S. Khata No. 24. M.S. Plot No. 622?"

The Trial Court after considering the oral and documentary

evidence in detail held that the plaintiff failed to prove that

the suit land is part and parcel of C.S. Khata No. 24 and

C.S. Plot No. 622 as described in the schedule and thus

answered both the issues against her. The Trial Court further

found that the M.S. ROR was prepared and published in the

year 1986, but the suit was filed in the year 2002, that is,

after 16 years to declare the entry in the ROR as wrong which

is barred by Section 42 of the Odisha Survey and Settlement

Act. As regards the relief for declaration with possession or

recovery of possession the Trial Court observed that the

period of limitation is 12 years as per Article 65 and Articles

58 and 59 of the Indian Limitation Act. The suit was thus

held to be barred by limitation. In view of the findings of the

Trial Court on the pivotal issues, the suit was dismissed.

6. The plaintiff carried the matter in appeal and the

learned District Judge framed the following the three points

for determination:

"Firstly: whether the plaintiff has any locus standi to bring the suit or in other words whether plaintiff has any right over M.S.Plot No. 507?

Secondly: Is the suit maintainable? Thirdly: Whether the suit is filed within the period of Limitation?"

7. The First Appellate Court disbelieved the plaintiff's

claim of being gifted with land measuring Ac. 0.59 dec. by

her father on 15.08.1976 taking note of the fact that in 1981

Sk. Samatulla was pursuing the litigation and had filed

objection in the Rent Camp. Further, Sk. Samatulla did not

file any appeal against the order of the Assistant Settlement

Officer. The First Appellate Court further found that the ROR

was published in the year 1986 and that as per Section 42, a

suit challenging the entries therein ought to have been filed

within three years. It was also held that the suit was barred

for not having been filed within 12 years of such recording as

per Articles 64 and 65 of the Limitation Act. It was held that

if the suit is held to be based on previous possession, the

same is barred under Article 64 and if it is treated as based

on title, it is barred under Article 65. On such findings the

First Appellate Court concluded that there being a positive

finding of the Settlement Authorities based on possession,

such findings cannot be set aside by the Civil Court. The

First Appeal was thus dismissed.

8. Heard Mr. S.K.Mishra, learned Senior Counsel with Ms.

P.P. Mohanty, learned Counsel for the appellant-plaintiff and

Mr. D.P.Mohanty, learned counsel for the respondent-

defendants.

9. Assailing the impugned judgments rendered by both the

Courts below, learned Senior Counsel Mr. Mishra would

argue that Section 42 of the Odisha Survey and Settlement

Act is not applicable as the suit was filed for declaration of

title of the plaintiff and not for correction of the entries in

ROR per se. Further, both the Courts below were misdirected

in reckoning the period of limitation from the date of

publication of ROR without considering the date on which

the cause of action arose. Mr. Mishra further contends that

one of the witnesses examined by the defendants (D.W.1)

admitted in his cross-examination that the suit property is

part of C.S. Plot No. 622, which renders the finding of the

Trial Court perverse. Mr Mishra further argues that the First

Appellate Court has not discussed the evidence at all and the

points framed by him for determination do not cover the lis in

its entirety.

10. Mr. D.P. Mohanty learned counsel for respondent-

defendants argued that the very basis of the claim of the

plaintiff is the purported gift to her by her father on

15.08.1976, which the Trial Court found to be not proved by

the evidence on record. On the question of limitation,

Mr.Mohanty would argue that having regard to prayer No. 1

in the plaint, it is obvious that the cause of action is

publication of Hal ROR on 28.03.1986 and therefore, Section

42 of the Odisha Survey and Settlement Act has full

application. Even if the suit is considered to be a declaratory

one, then also the same having been filed beyond the period

of 12 years, is barred by limitation as per Articles 64 and 65

of the Limitation Act.

11. The question of limitation having been raised and

answered by both the Courts below and raised again before

this Court, it is imperative to deal with it at the first instance,

more so, as the second appeal itself was admitted on such

question. It would be apposite in this context to refer to the

plaint averments and the relief claimed therein. Relief No.1

under paragraph-7 (pleaded in Odia) is for a declaration of

the plaintiff's right, title, interest and possession over

schedule "GA" property as also to declare that M.S. ROR No.

507 is wrong and illegal. The other reliefs claimed are

consequential in nature and therefore the maintainability of

the suit would be relatable to Relief No. 1 as referred above.

12. Coming to the second part of the first Relief, it is that

the declaration that MS ROR 507 is wrong and illegal

inasmuch as the same stands recorded in the names of the

defendants, the plaintiff's case is that said property was

actually gifted to her by her father, Sk. Samatulla on

15.08.1976.

Section 42 of the Odisha Survey and Settlement Act reads as

follows:

"Limitation of jurisdiction of Civil Court. - [(1) No suit shall be brought in any Civil Court in respect of any order directing survey, preparation of record-of- rights or settlement of rent under this Act or in respect of publication, signing or attestation of any record thereunder or any part thereof : Provided that any person aggrieved by any entry in or omission from any record finally published under Sections 6-C, 12-B or 23 in pursuance of Section 36 may, within three years from the date of such publication, institute a suit for relief in a Civil Court having jurisdiction.

(2) When such Court has passed final orders it shall notify the same to the Collector of the district and all such alterations as may be necessary to give effect to the orders of the said Court shall be made in the records published as aforesaid."

It is clear that a suit filed by a party aggrieved by any entry in

or omission from any record finally published shall have to

be filed within three years from the date of such publication.

There is no dispute that the suit was filed on 08.10.2002

whereas the MS ROR was published in the year 1996. Thus,

the suit was filed much beyond three years. Mr. Mishra

learned Senior Counsel has argued that the prayer for

declaration relating to MS ROR is incidental to the first part

of the relief that is, declaration of right, title and interest of

the plaintiff. This Court is unable to accept such contention

because even though couched under one heading, the two

prayers so claimed are in fact distinct and separate and

therefore, have to be considered on their own. This Court

therefore, holds that the relief claimed to declare the MS ROR

as wrong and illegal is barred by limitation.

13. As regards the relief regarding declaration of title, this

Court finds that the claim of the plaintiff that she acquired

title from her father through oral gift was negatived for want

of evidence. This Court after going through the findings

recorded by the Trial Court finds no infirmity therein so as to

be persuaded to interfere. The plaintiff's claim is that she is

not in a position to pray for recovery of possession, but has

claimed declaration of title based on possession. If, according

to her she came over the property from the date of the oral

gift i.e. 15.06.1976, the suit for declaration based on

possession ought to have been filed within 12 years from the

date of dispossession both under Articles 64 or 65 of the

Limitation Act. The plaintiff has described the cause of the

action under paragraph 4 of the plaint as alleged wrong

recording of MS ROR and alleged abuse and threat held out

by the defendants to her on 01.08.2002. The Trial Court

found no evidence being adduced in this regard. On the

contrary, it was found that it cannot be held that the plaintiff

is the owner in possession of the suit property. In view of the

forgoing discussion, this Court is also of the same view. As to

the so-called admission made by the defendant No. 1 in her

evidence that the suit property corresponds to C.S. Plot No.

642, in view of the findings that the very basis of the suit

being non-existent, such admission, if at all can have no

consequence.

14. For the foregoing reasons therefore, this Court is of the

considered view that both the Courts below have committed

no illegality in rejecting the claim of the plaintiff. Even on an

independent assessment, this Court has arrived at the same

conclusion as the Courts below. Thus, this Court finds no

justified reason to interfere with the impugned judgments.

15. In the result, the appeal is found to be devoid of merit

and is therefore, dismissed but in the circumstances without

any cost.

...............................

Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 25th August, 2023/ Deepak, Jr. Steno