Orissa High Court
Sujaya Shankar Singh Deo vs Unknown on 10 August, 2023
HIGH COURT OF ORISSA : CUTTACK
RSA NO.59 OF 2014
In the matter of appeal under Section-100 of the Code of Civil
Procedure assailing the judgment and decree passed by the learned
Additional District Judge, Kalahandi, Bhawanipatna in RFA No.3/54 of
2010-2013 in setting aside the judgment and decree passed by the learned
Civil Judge (Senior Division), Bhawanipatna in C.S. No.7 of 2003.
.........
Sujaya Shankar Singh Deo :::: Appellant
-:: VERSUS ::-
Smt. Puspa Kumari Devi & Others :::: Respondents
Advocate(s) who appeared in this case by hybrid arrangement
(virtual/physical) mode.
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For Appellant ... Mr. S.K. Samantaray, Advocate
For Respondents ... Mr. A.P. Bose, Advocate
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CORAM :
MR. JUSTICE D.DASH
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Date of Judgment: 10.08.2023
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D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code
of Civil Procedure, 1908 (for short, 'the Code') has assailed the judgment
and decree passed by the learned Additional District Judge, Kalahandi,
Bhawanipatna in RFA No.3/54 of 2010-2013.
The Respondent No.1 as the Plaintiff filed the suit for recovery of
the suit property from one Prasanna Kumar Singh, who had been arraigned
{{ 2 }}
as the sole Defendant and for permanent injunction restraining him not to
enter upon the suit property.
During pendency of the suit, the sole Defendant having died, his
legal representatives have been brought on record as Defendant No.1 (A) to
1 (E). The Trial Court dismissed the suit filed by the present Respondent
No.1 (Plaintiff). Being aggrieved, by the said judgment and decree passed
by the Trial Court dismissing the suit, the present Respondent No.1 as the
unsuccessful Plaintiff being non-suited had carried the Appeal under
section 96 of the Code. The First Appellate Court has allowed the Appeal
The judgment and decree passed by the learned Civil Judge (Sr. Division),
Bhawanipatna in Civil Suit No.7 of 2003 dismissing the suit have been set
aside and the present Respondent No.1 who was the Appellant before the
First Appellate Court and the Plaintiff in the Trial Court has been favoured
with a decree directing this Appellant and Respondent Nos.2 to 5
(Defendants) to deliver vacant possession of the suit property to the
Respondent No.1 (Plaintiff) and pay damage of Rs.200/- per month from
the date of the suit till delivery of possession.
2. 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.
3. Plaintiff's case is that she is a Paradanasin lady and has executed a
general power of attorney in favour of her husband authorizing him to take
{{ 3 }}
all such step safeguarding the interest of the Plaintiff. The Plaintiff is the
lawful owner in respect of the suit properties described in schedule 'A' and
'B' of the plaint which was under Khata No.619, Plot No.3351-Ac.0.016
dec. (697 sq. ft.), Plot No.3352-Ac.0.033 dec (1437 sq. ft.) and Plot
No.3353-Ac.0.139 dec. (6055 sq. ft.) as per the settlement of the year
1955-56 situated near Manikeswari High School Chowk, Bhawanipatna
corresponding to the entries made in Yaddast No.283 (Unit No.7). The
Plaintiff had purchased the said property from Prafulla Kumari Devi, W/o.
Late Purusottam Singh of Bhawanipatna by Registered Sale Deed No.2176
dated 23.09.1983 for a consideration of Rs.20,000/- The Plaintiff having
purchased the said property remained in exclusive possession of the same
by residing in the suit house with her family standing over it and the
vendor who was her mother-in-law also continued to stay with them. The
Plaintiff had let out some portion of the house on rent to Orissa Forest
Corporation Ltd. with effect from 01.02.1991 till 16.05.1992. The said
house thereafter was given on rent to the Branch Office of M/s. Casion
Finance and Investment Pvt. Ltd. for a period of three years from
01.07.1992 under an agreement. The tenant having vacated the suit
property, the Plaintiff remained in exclusive possession of the same till
1996. She thereafter shifted to the newly constructed house of her son
situated near Jayaprakash Evening College, Bhawanipatna. The Plaintiff,
accordingly, kept the suit house under lock and key as there was dire need
{{ 4 }}
of massive repair of that house. The Plaintiff had kept some house hold
materials therein. It is stated that the residence of the original Defendants is
adjacent to the suit property and taking advantage of the temporary absence
of the Plaintiff, the Defendant trespassed over the suit property with his
family members and caused damage to the suit house leading to heavy
finance loss of the Plaintiff. It was said to have happened on 14.01.2003
when the Plaintiff was at Bonai and taking advantage of her absence, the
original Defendant and his family members did all said unauthorized acts.
Hence, the Plaintiff filed the suit seeking the relief as afore-stated.
4. The Defendant while traversing the plaint averments has
categorically stated that said Prafulla Kumar Devi had no capacity to sale
the suit property and it is the Plaintiff who had managed to create that
document which is thus not binding on him. It is further claimed that the
Defendant is in all along in possession of the suit property for which there
was no occasion for the Plaintiff to let out the same or to keep the same
under lock and key. It is further stated that the question of causing any
damage of the said suit house by the Defendant does not arise.
5. The Trial Court on the above rival pleadings, framed 12 issues,
which run as under:-
"(a) Has the Plaintiff any cause of action to bring the suit?
(b) Is the suit maintainable in this form?
{{ 5 }}
(c) Is the Registered Sale Deed No.2176, dated 24.09.1983
executed by vendor, Prafulla Kumari Devi in favour of Plaintiff is genuine
for consideration and has been acted upon?
(d) Has the Plaintiff got exclusive right, title, interest and
possession over the suit land/properly?
(e) Are the Defendants in forcible possession of the suit land/
property?
(f) If the Plaintiff entitled to the claimed damages?
(g) To what relief if any, the Plaintiff is entitled to?
6. The Trial Court, upon examination of the evidence let in by the
parties in the touchstone of the pleadings and their appreciation at its level
while answering the issues having pointed out the following reasons has
dismissed the suit. The reasons are:-
a) The testimony of P.W.1 was found not acceptable in absence
of corroboration as well as in absence of explanation in non-
examination of power of attorney holder.
b) The alleged registered Sale Deed No.2176 dtd.24.9.1983 in
respect of the suit property having not been formally proved,
though a certified copy thereof was produced vide Ext.2
without lying foundation for proving such secondary
evidence.
c) The vender of the alleged registered Sale Deed having no
alienable title and possession in respect of suit property to
transfer the same to the plaintiff.
d) The contents of Ext.2 having been contained no term that
there was delivery of possession and in absence of any such
legal prove regarding delivery of possession from vender to
{{ 6 }}
the vendee (plaintiff), no title is passed on strength of the
same.
e) Plaintiff has not come to the court with clean hands as she
filed the suit on 30.1.2003 though she claims having
dispossessed in the year 1996 and such delay having not been
explained by her.
7. In the First Appeal filed by the Plaintiff, it has been held that the
Plaintiff has established her claim over the suit property as its owner and
was in possession of the same. The First Appellate Court, upon
examination of the evidence on record has also held that the Plaintiff being
the rightful owner of the property was in possession of the same and the
Defendants have trespassed and as such the possession of the suit property
by them is without any legal sanction and the Plaintiff is entitled to recover
the possession of the suit property from them.
One of the legal representatives of the original Defendant has now
filed this Second Appeal arraigning the Plaintiff and other legal
representatives of original Defendant as the Respondents.
8. The following substantial question of law stands for being
answered:-
"Whether in view of the judgment and decree passed in Title Suit
No.21/1991 when the Plaintiff has been held to have purchased the suit
property from Prafulla Kumari Devi by registered sale deed for valuable
consideration and that sale deed having not been challenged by the
{{ 7 }}
Defendants; the judgment and decree of the First Appellate Court
decreeing the suit have to sustain.
9. Heard learned counsel for the Appellant and learned counsel for the
Respondent No.1 at length. I have carefully read the judgments and decrees
passed by the courts below.
10. The Plaintiff claims to have purchased the suit land from her mother-
in-law (vendor) by registered sale deed dated 23.09.1983 (Ext.7), the
Defendants have not challenged the same at any earlier point of time
except attacking the same in this suit. The sole Defendant as the Plaintiff
had filed Title Suit No.21 of 1991 against his co-sharers including Prafulla
Kumari Devi, the vendor of the Plaintiff claiming partition of their joint
family property which included the suit land. The suit had been dismissed
ex parte with a finding therein that the property involved in the present suit
is the exclusive property of Prafulla Kumari Devi which facts stand
undisputed. The Yaddast document (Ext.9) reflects the said sale transaction
in favour of the Plaintiff and that has also been recorded in the record of
right of Bhawanipatna Nazul under Khata No.619 (Ext.12) showing the
suit property in the name of the Plaintiffs-Vendor. That apart, the
documents Ext.4 to Ext.6 which have been proved by the Plaintiff would
show that a portion of the suit house had been let out by the Plaintiff. So
with all those documents of title, the Defendants have not been able to
establish any sort of rival claim over the suit property when the claim of
{{ 8 }}
their predecessor-in-interest, i.e., original Defendant that it is the joint
family property liable for partition has been negated in the suit filed by
him.
In that view of the matter, when the vendor of the Plaintiff had the
alienable right over the property and she having executed the registered
sale deed under Ext.7 neither the Defendants or their predecessor-in-
interest have challenged the same on any specific ground by filing suit
except questioning the authority as above which has been negated and it is
only here they for the first time say that it is a created document; the
finding of the First Appellate Court that the Plaintiff has the right, title and
interest over the suit property and as such entitled to recover the possession
of the suit land from the Defendants has to hold the field.
The First Appellate Court, therefore, is found to have rightly decreed
the suit granting the reliefs as stated therein to the Plaintiff. The substantial
questions of law are accordingly answered, which leads for dismissal of the
Appeal.
11. In the wake of aforesaid, the Appeal stands dismissed. No order as to
cost.
(D. Dash),
Signature Not Verified Judge.
Digitally Signed
Signed
Himansu by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 17-Aug-2023 16:42:32
