Orissa High Court
Barun Pradhan vs Hrusikesh Behera And Another on 30 August, 2023
ORISSA HIGH COURT: CUTTACK
RSA No. 481 OF 2012
[In the matter of appeal under Section 100 of the Code of
Civil Procedure.
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Barun Pradhan ...... Appellant
-Versus-
Hrusikesh Behera and another ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellant : M/s. S.P. Misra, Sr. Advocate
S. Mishra, B. Mohanty,
B.S. Panigrahi &
S.K. Sahoo, Advocates
For Respondents : M/s. A.R. Dash,
A. Mohnata, S. Kar &
S. Kanuno, Advocates
______________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
ORDER
30.08.2023
I.A. NO. 506 of 2023 &
RSA No. 481 OF 2012
SASHIKANTA MISHRA, J.
Both the I.A. for condonation of delay and
hearing on the question of admission of the appeal were
taken up on 09.08.2023. Thus order shall dispose of both.
2. The above mentioned I.A. is filed for condonation
of delay. Office has pointed out a delay of 222 days in filing
of the appeal. It is stated that the appeal was filed in time
but without court fees, which was filed 222 days later. As
such, the delay has to be treated as 222 days.
3. Mr. Soumya Mishra, learned counsel for the
appellant submits that at the time of filing of the appeal,
the required court fees could not be arranged and therefore
to save limitation, the appeal was filed by the advocates'
clerk attached to his office on a mistaken notion that it
would not constitute delay. Subsequently, however, office
having pointed out the above fact the court fees were paid,
the delay may, therefore, be condoned.
4. Having regard to the fact that the Second Appeal
itself was filed in time but was treated as incomplete in the
absence of filing of court fees, which is a technical ground,
this Court is inclined to take a lenient view. This is for the
reason that the party cannot suffer for the laches of his
lawyer. In such view of the matter, the delay of 222 days in
filing of the appeal is condoned.
5. Heard Mr. S. Mishra learned counsel for the
appellant and Mr. A.R. Dash, learned counsel appearing
for the respondent No.1 who has already entered
appearance on the question of admission.
6. The plaintiff before the trial court has preferred
the appeal against the confirming judgment passed by the
1st Appellate Court. The plaintiff-appellant had filed C.S.
No. 52 of 2009 in the Court of Civil Judge (Senior Division),
Champua for declaration of right, title, interest, recovery of
possession and mandatory injunction. The suit was
decreed in part. The plaintiff carried the matter in appeal
being 24/1 of 2011-09 in the Court of Additional District
Judge, Champua. Said appeal was dismissed and the
judgment and decree of the trial court was confirmed.
7. Heard Mr. Soumya Mishra, learned counsel for
the appellant and Mr. Subhendu Kar, learned counsel
appearing for the defendant-respondent No.1 on the
question of admission.
8. A plaintiff's case, briefly stated is that as per
amicable family settlement, the suit plot, being Hal Plot No.
160 measuring an area of Ac.0.38 decimals was allotted in
favour of one Munsi and father of the plaintiff, namely,
Rabi, both of whom possessed Ac. 0.19 decimals each with
Rabi being in possession of the western half. The plaintiff
inherited the properties upon death of his father. The sons
of Munsi, however, transferred the land in favour of one
Banamali Behera, the predecessor of the defendants. In the
year 2005, the defendants encroached upon the plaintiff's
land and started construction of a house which was
objected to by him but the defendants claimed that the
same was government land. On identification, the plaintiff
came to know that the land in question belongs to his
family.
9. The case of the defendants, inter alia, is that
father of the plaintiff Rabi Pradhan alienated Ac.0.12
decimals of land on 17.03.1992 towards the southern side
of the western half of Hal Plot No.160 in favour of the
minor son Bikash Behera and possession was delivered. A
residential house was also constructed. When mutation
proceeding was initiated in the year 2006, it came to light
that a wrong plot number had been mentioned in the sale
deed for which they approached the plaintiff for
rectification but he delayed the matter and thereafter filed
the suit mischievously.
10. On such pleadings the trial court framed eight
issues for determination. After analyzing the oral and
documentary evidence on record, the trial court arrived at
the finding that the plaintiff was guilty of suppressing the
fact of execution of the sale deed on 17.03.1992 and had
approached the Court with unclean hands by taking
advantage of wrong description of the property. However,
the trial court found that the plaintiff has valid title over
the balance property measuring Ac.0.07 decimals of Plot
No.160. The suit was thus, decreed in part by declaring the
title of the plaintiff along with other co-sharers over Ac.0.07
decimals of suit Plot No. 160 except the southern side of
western half of Plot No. 160 alienated in favour of the
defendants.
11. The plaintiff, as already stated, being dissatisfied
carried the matter in appeal mainly highlighting the
misdescription of property in the registered sale deed
executed by his father in favour of the defendants. The 1st
Appellate Court however took note of the ambiguity in the
sale deed and admitted extensive evidence to explain the
ambiguity and on such basis held that the plaintiff could
not prove his title over the suit property to the extent of
Ac.0.12 decimals on the southern side of western half of
Hal Plot No.160. The appeal was therefore, dismissed.
12. Mr. Soumya Mishra, learned counsel appearing
for the appellant would argue that the boundary mentioned
in the sale deed has to tally with the actual possession of
the party. So, even if the plot number is wrong, the
evidence clearly shows that the boundary described in the
registered sale deed and the boundary of the plot over
which the defendants are in possession are different. To
such extent therefore, the proposition that the boundary
will prevail over the plot number has no application.
13. Per contra, Mr. Subhendu Kar would argue that
both the courts below have extensively analyzed the oral
and documentary evidence on record to arrive at the
finding that the plaintiff could not prove his title beyond
Ac.0.07 decimals of land and in particular over Ac.0.12
decimals of land to the southern side of the western half of
Plot No. 160. This being essentially a question of fact
concurred by both the courts below need not be reopened
by this Court.
14. I have considered the rival submissions and have
also gone through the judgments passed by the trial court
and the 1st Appellate Court. As already stated, the trial
court observed that the plaintiff had suppressed the fact of
execution of the sale deed by his father in favour of the
defendants in 1992. Further, regardless of the so called
ambiguity in description of the property sold, the
boundaries thereof are sufficient to identify it. The above
finding of the trial court was confirmed by the 1st Appellate
court also by referring to the recitals of the sale deed in
question and the evidence adduced relating to the
boundaries. In view of the ambiguity in the recitals of the
sale deed, the trial court rightly admitted oral evidence to
explain the same. The finding thus rendered is based on
evidence and in any case, is purely factual in nature. The
contention that the proposition that boundaries shall
prevail over the plot number in case of ambiguity has no
application to the facts of the case is untenable. It is trite
that the High Court exercising jurisdiction under Section
100 of CPC is always slow to interfere with concurrent
findings of fact unless the same is blatantly wrong or
perverse. In view of what has been discussed hereinbefore,
such a situation does not arise in the present case.
15. For the foregoing reasons therefore, this Court is
of the considered view that the Second Appeal involves no
substantial question of law for which the same is dismissed
being not admitted.
................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 30th August, 2023/ B.C. Tudu
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 01-Sep-2023 10:34:12
