Procedure vs Ramachandra Kuedi And Another
2023 Latest Caselaw 15861 Ori

Orissa High Court

Procedure vs Ramachandra Kuedi And Another on 11 December, 2023

                            IN THE HIGH COURT OF ORISSA AT CUTTACK

                                              S.A. No.19 of 1987

                     (In the matter of an appeal under Section 100 of the Code of Civil
                   Procedure, 1908)
                   Mangulu Kudei(Dead) and others               ....            Appellants
                                                     -versus-
                   Ramachandra Kuedi and another                ....          Respondents

                   Appeared in this case:-
                          For Appellants         :      Mr. N.C. Pati, M. Mishra, Miss. B.
                                                          Pati, P.K. Khuntia, B.N. Mishra
                                                                     and B. Das, Advocate

                          For Respondents        :                                  None

                    Appeared in this case:-

                    CORAM:
                    JUSTICE A.C. BEHERA

                                            JUDGMENT

Date of hearing : 03.11.2023 / date of judgment :11.12.2023

A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment.

The appellants of this 2nd appeal were the defendants in the suit vide T.S. No.7 of 1983 and were the appellants in the 1st appeal vide T.A. No.8 of 1985.

2. The predecessors of the respondents of this 2nd appeal, i.e., Rama Chandra Kudei was the sole plaintiff in the suit vide T.S. No.7 of 1983 and he was the respondent in the 1st appeal vide T.A. No.8 of 1985.

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The suit of the plaintiff Rama Chandra Kudei vide T.S. No.7 of 1983 was a suit for declaration of title and confirmation of possession, in alternative, recovery of possession, if, he (plaintiff) is found to be dispossessed during the pendency of the suit.

3. The case of the plaintiff was that, the suit properties were originally Bhogra lands. He (plaintiff) was the Gountia of village Jampali, in which the suit properties situate.

After abolition of Gountia system, the suit properties were settled in his name exclusively through Bhogra Conversion Proceeding by the appropriate authority. On the basis of such settlement, the suit properties were recorded in his name (in the name of plaintiff) in the 4th settlement. Accordingly, he (plaintiff) was / is the exclusive owner and in possession over the suit properties.

But, surprisingly, he came to know that, the defendant no.1 has managed to record the suit properties in his name as per an order dated 20.07.1982 of the Tahasildar through Mutation Case No.264 of 1982 behind his back without serving any notice on him. He (plaintiff) came to know that, the defendant no.1 had filed an application on dated 13.04.1982 for mutation of the suit properties into his name by stating falsely that, the suit properties had fallen into the share of his father as per mutual partition of their all joint family properties including the suit properties. In addition to that, he(defendant no.1) had stated falsely in his application for mutation that, the father of the plaintiff had become the exclusive owner over the suit properties on the basis of an unregistered dead executed by the plaintiff along with his other co-sharers on dated 06.05.1955 acknowledging the ownership of his father Bansi Kudei over the suit properties. But, in fact, neither there was any partition nor there was execution of any so-called unregistered deed on 06.05.1955. When, // 3 //

the plaintiff came to know that, the defendants are trying to grab the suit properties by creating the aforesaid illegal documents, for which, he (plaintiff) approached the civil court by filing the suit vide T.S. No.7 of 1983 against the defendants praying for declaration of his right, title and interest over the suit properties and also for confirmation of his possession thereon, in alternative, for recovery of the possession of the suit properties from the defendants, if, he (plaintiff) is found to be dispossessed by the defendants during the pendency of the suit.

4. The defendant no.1 contested the suit by filing his written statement taking his stands inter alia therein that, the suit properties were originally belonged to one Basu, who was the original Gountia of suit village Jampali. That Basu died leaving behind his four sons, namely, Madan, Trilochan, Abhi and Bansi. After the death of Basu, his four sons, i.e., Madan, Trilochan, Abhi and Bansi distributed their all joint properties including the suit properties among them through an amicable partition. As per such amicable partition between them, the suit properties had fallen into the share of Bansi (father of the defendant no.1).

After the death of the original Gountia of the suit village, i.e., Basu, his eldest son, i.e., Madan had become the Gountia of that village and after the death of Madan, Brundabana became the Gountia and thereafter the plaintiff being the son of Madan became the Gountia of the suit village Jampali.

After the death of Bansi, the suit properties devolved upon his sole successor, i.e., defendant no.1 and accordingly, he (defendant no.1) being the exclusive owner of the suit properties, he (defendant no.1) had/has been possessing the same. The suit properties might have settled in the name of the plaintiff in the Bhogra Conversion Proceeding through // 4 //

misrepresentations made by the plaintiff. He (defendant no.1) has never attended any Bhogra Conversion proceeding in respect of the suit properties and he was not at all aware about the same. The further case of the defendant no.1 was that, a Bhogra Conversion Proceeding cannot extinguish his right, title and interest over the suit properties. Because, his right title and interest over the suit properties has already been created in his favour. According to him (defendant no.1), the recording of the properties in the name of one of his co-sharer like the plaintiff in the Bhogra Conversion Proceeding shall enure benefit to his all co-sharers including him (defendant no.1). The further stands of the defendant no.1 was that, the plaintiff along with his other co-sharers have executed a deed on 06.05.1955 acknowledging the possession of Bansi Kudei (father of the defendant no.1) over the suit properties. Accordingly, the father of the defendant no.1 was in excusive possession over the suit properties as the owner thereof and after the death of his father, he (defendant no.1) is in exclusive possession over the same as his sole successor. So, on the basis of his title and possession, over the suit properties, the suit properties have been mutated to his name through Mutation Case No.264 of 1982 after demarcating the same properly. In that mutation proceeding, notice was duly served on the plaintiff, but, in spite of receiving the notice, he (plaintiff) did not choose to file any objection, for which, the mutation case was allowed in his favour and the suit properties have been recorded in his name. As the suit properties were allotted into the share of his father as per mutual partition between him and his co-sharers, for which, he (defendant no.1) is the owner of the suit properties. So, there is no cause of action for the plaintiff to file the suit against him. Since, he (defendant no.1) is in possession over the suit properties for more than twelve years, for which, he (defendant no.1) has perfected his title over the suit properties by way of adverse possession.

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That apart, the suit of the plaintiff is also bad for non-joinder of necessary parties, i.e., Trilochan, Abhi as well as State of Orissa. Therefore, the suit of the plaintiff is liable to be dismissed with costs.

5. The other defendants, except the above defendant no.1 were set ex

parte.

Basing upon the aforesaid pleadings and matters in controversies between the parties altogether eleven numbers of issues were framed by the trial court and the said issues are:-

ISSUES

i. Whether the suit lands were the part and parcel of Bhogra lands of deceased Goutia Basu Kudei?

         ii.    Whether Banshi was one of the co-sharer of
                deceased Gountia Madan?

iii. Whether Bansi Kudei was in possession of suit land as co-sharer interest and whether the plff. with other co-sharer has executed the deed as alleged in W.S. Dated 6.5.55 in favour of the Dft.?

iv. Whether the lands has been converted on rayati status in the name of plff. and if so whether it will put an end to the claim of the defendant?

v. Whether settlement of rayati status is for the benefit of all co-sharer?

vi. Whether the defendant has preferred title by adverse possession?

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vii. Whether the mutation has been done to the knowledge of the plaintiff and if so whether the plaintiff is estopped from challenging now?

viii. Whether the suit is bad for non-joinder of necessary party?

ix. Whether the suit is barred by the law of limitation?

x. Whether the suit has been under valued, and if properly valued it would oust the pecuniary jurisdiction of the court?

xi. To what relief if any the plff. is entitled for?

6. In order to substantiate aforesaid reliefs sought for by the plaintiff against the defendants, he (plaintiff) examined three witnesses from his side including him as P.W.1 and proved several documents on his behalf vide Exts.1 to 5 before the trial court during the trial of the suit.

7. But, on the contrary, the contesting defendant no.1 examined four witnesses on his behalf including him as D.W.1 and relied upon some documents from his side vide Ext.A to D.

8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendants and basing upon the findings and observations made by the trial court in the issues, decreed the suit of the plaintiff on contest against the defendant no.1 and ex parte against other defendants vide its judgment and decree and declared the right, title and interest of the plaintiff over the suit properties entitling him (plaintiff) to recover the possession of the suit properties through court assigning the reasons that, the settlement of the // 7 //

suit properties exclusively in the name of the plaintiff through Bhogra Conversion Proceeding shall not enure benefit to any other person than the plaintiff, for which, plaintiff has the right, title and interest over the suit properties.

9. On being dissatisfied with the aforesaid judgment and decree passed by the trial court in T.S. No.7 of 1983 in favour of the plaintiff and against the defendants, the defendants challenged the same by preferring the 1st appeal vide T.A. No.8 of 1985 being the appellants against the plaintiff by arraying him (plaintiff) as respondent. After hearing from both the sides, 1st appellate court dismissed to that 1st appeal vide T.A. No.8 of 1985 of the defendants concurring / accepting the findings and observations of the trial court in favour of the plaintiff.

10. On being aggrieved with the aforesaid judgment and decree of dismissal of T.A. No.8 of 1985 of the defendants passed by the 1st appellate court, they (defendants) challenged the same by preferring this 2nd appeal being the appellants against the legal heirs of the plaintiff arraying them as respondents due to the death of the plaintiff Rama Chandra Kudei after the judgment of the 1st appeal.

11. This 2nd appeal was admitted on formulation of the substantial questions of law, i.e.,

(i) Whether the settlement of raiyat status of Bhogra lands on one co-sharer is a settlement on the family and other co-sharers have got right over the same land or the co-sharer on whom raiyati status has been confirmed gets exclusive title over it?

(ii) Whether in view of the acknowledgement of the coparceners interest over the suit land under the Ext.A to the defendant no.1's father and there // 8 //

being in continuous possession of the same, the courts below should have held adverse possession of the appellant (defendant) over the suit land?

12. I have already heard from the learned counsels of both the sides.

13. It is the undisputed case of the parties that, originally the suit properties were Bhogra lands. After abolition of the Gountia system, the suit properties have been settled exclusively in the name of the plaintiff through Bhogra Conversion Proceeding and on the basis of such settlement, raiyat patta of the suit properties has been issued in his favour.

14. The order of settlement of the suit properties in the name of the plaintiff through Bhogra Conversion Proceeding has not been challenged either by the predecessor of the defendants or by any of the defendants including the defendant no.1 before any statutory higher forum of Bhogra Conversion authorities. Therefore, it is clear that, the order of settlement of the suit properties in favour of the plaintiff in the Bhogra Conversion Proceeding has not at all been varied or set aside by any competent authorities thereof till date. It is also the undisputed case of the parties that, on the basis of the settlement of the suit properties in favour of the plaintiff through Bhogra Conversion Proceeding, the suit properties were recorded in the name of the plaintiff exclusively in the 4th settlement by the settlement authorities.

15. The law relating to the title on the land on the basis of settlement through Bhogra Conversion Proceeding like this suit at hand has already been clarified by Hon'ble Courts in the ratio of the following decisions:-

(i) 2007(II) CLR-477 : Muralidhar Naik vrs. State of Orissa and others--Bhogra Land --"Bhogra lands to be settled with occupancy right thereon, only if a person is in // 9 //

actual possession of the same. Held, order of settlement passed in the Bhogra Conversion Proceeding having not been varied by any competent authority till date, for which, the settlement authorities rightly recorded the land in the name of O.P. Nos.5 to 23."

(ii) 2021(II) CLR-146 : Halayudha Satpathy and others vrs. Manoranjan Satpathy----Bhogra Lands--

"After vesting of Bhogra lands in the State, the said suit lands were settled by Collector in favour of the defendants in the Bhogra Conversion Proceedings on 04.06.1962 with effect from 14.04.1956 followed by the grant of raiyat patta. Appeal filed by the plaintiff against the Bhogra Conversion order stood dismissed by the Revenue Divisional Commissioner. Suit filed by the plaintiff for declaration of title, confirmation of possession and injunction. According to the plaintiff, he continued in possession of the suit lands as before stating that, the settlement record prepared in the name of the defendants was wrong. Held, civil court cannot sit over the final order passed in the Bhogra Conversion Proceeding, unless there is challenge in the suit that, the statutory authorities under Bhogra Conversion Proceeding have acted unfairly, arbitrarily or capriciously and without exercising the powers within the ambit of the statute."

16. Here in this suit at hand, the order of settlement of the suit properties in the name of the plaintiff through Bhogra Conversion Proceeding and issuance of raiyat patta of the suit properties in the name of the plaintiff on the basis of such settlement made in the Bhogra Conversion Proceeding and recording of the suit properties exclusively in the name of the plaintiff in the 4th settlement on the basis of the order of settlement of the suit properties made in the Bhogra Conversion Proceeding have not been challenged by the defendants including the defendant no.1 in any higher forums of the statutory authorities of Bhogra Conversion Proceeding. For which, in view of the propositions of law enunciated in the ratio of the aforesaid decisions, the said order of settlement of the suit properties in the name of the plaintiff exclusively as // 10 //

per the order passed in Bhogra Conversion Proceeding cannot and shall not be unsettled by the civil court. Because on the basis of settlement of the suit properties through Bhogra Conversion Proceeding in the name of the plaintiff followed by the grant of raiyat patta in his name, the right, title and interest of the plaintiff over the suit properties have already been created.

17. Due to lawful creation of such right, title and interest of the plaintiff over the suit properties, the claim of title of the defendants including the defendant no.1 over the suit properties is not entertainable.

18. In the written statement of the defendant no.1, he (defendant no.1) has also claimed his title over the suit properties by way of adverse possession.

19. So, in one breath, the defendant no.1 has claimed his ownership over the suit properties through inheritance and succession, but at the same time, in an another breath, he (defendant no.1) has claimed his title over the suit properties through adverse possession.

20. It is the settled propositions of law that, anybody like the defendant no.1 cannot and shall not take the above both pleas at a time, i.e., claim of title over the suit properties by way of inheritance and succession and as well as claim of title over the suit properties by way of adverse possession. Because, both the pleas are mutually destructive of each other. In case, anybody like defendant no.1 takes the above two mutually inconsistent and destructive pleas simultaneously at a time, then, both the pleas of the defendants shall not be entertainable under law.

21. It is very fundamental in civil law that, claim of title over any suit property through adverse possession by the defendant against the plaintiff // 11 //

is his indirect admission to the ownership of the plaintiff over the suit properties.

So, the above claim of adverse possession of the defendant no.1 in his written statement against the plaintiff is his admission to the title of the plaintiff over the suit properties.

22. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

(i) 2008(4) CCC 239 (P&H)--Gurbax Singh Vrs.

Karnail Singh--Adverse Possession-- The plea of adverse possession necessarily implies the admission of the title of the other side.

(ii) 2020(Supp.) OLR (S.C.) 866, 2020 (II) CLR (S.C.)577-Narasamma and others Vrs. A. Krishnaappa-Paragraph-38, (2004) 10 SCC-779- Karnataka Board Vrs. Govt. of India- (Paragraph

12)-- A plea of title and adverse possession simultaneously cannot be taken. Because, pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.

(iii) 2023(3) CCC--201(S.C.)--Government of Kerala and another vrs. Joseph and others--Claim of independent title and adverse possession at the same time amount to contradictory pleas.

(iv) (2022) 10 SCC-217-Kesar Bai Vrs. Genda Lal & another -Article 64 & 65- parties cannot blow hot and cold at a time, because, their claim is that, they have purchased the property through registered sale deed in on breath and at the same time they have claimed perfection of their title by way of adverse possession in another breath. Both are contrary to each other. Both the pleas cannot be taken at the same time.

(v) 2015 (II) CLR (S.C.) 981--M. Venkatesh and Ors. Vrs. Commissioner, Bangalore Development Authority-- Limitation Act, 1963- Article 64 & 65 - Where the plaintiffs claim to be the owners of suit property on the basis of inheritance, they cannot plead adverse possession over the very same property.

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(vi) 2019 (I) Civil Court Cases--433 (Allahabad)- (Paragraphs 18 & 19)--Lavkush Malviya Vrs. Smt. Suman Devi & others--Adverse Possession and Inheritance--These are two inconsistent alternative pleas, which are not permissible--A party is entitled to take an alternative plea, but such alternative plea should not be mutually destructive of each other. Held, plea of title on the suit land through inheritance and adverse possession are mutually destructive of each other.

23. On application to the principles of law enunciated in the ratio of the aforesaid decisions to the pleadings the defendant no.1 in his written statement, it is held that, the pleas taken by the defendant no.1 are mutually inconsistent and destructive of each other. For which, any of his pleas in his written statement is not entertainable under law. Rather, the same is his admission to the title of the plaintiff over the suit properties.

24. Therefore, in order to answer the substantial questions of law formulated in this 2nd appeal, it is held, as per discussions and observations made above that, the settlement of suit properties exclusively in the name of the plaintiff through Bhogra Conversion Proceeding after the abolition of Gountia system followed by issuance of raiyat patta in his name shall not enure any benefit to the defendants including defendant no.1 and the claim of adverse possession the defendant no.1 over the suit properties has become inacceptable. For which, in other words, it is held that, the settlement of the suit properties exclusively in the name of the plaintiff through Bhogra Conversion Proceeding and followed by the issuance of raiyat patta in his name has created the exclusive right, title and interest of the plaintiff over the suit properties.

25. As per the discussions and observations made above, when it is held that, any of the defendants including defendant no.1 has no interest over the suit properties, then, at this juncture, the judgment and decree // 13 //

passed by the trial court in T.S. No.7 of 1983, in favour of the plaintiff and against the defendants and confirmation to the same by the 1st appellate court in T.A. No.8 of 1985 cannot be held as erroneous. For which, the question of making any interference with the same through this appeal filed by the defendants does not arise.

26. In the result, the appeal filed by the appellants (defendants) is dismissed on contest against the respondent (plaintiff), but without cost.

The judgment and decree passed in T.S. No.7 of 1983 in favour of the plaintiff and against the defendants and the confirmation to the same by the 1st appellate court in T.A. No.8 of 1985 are hereby confirmed.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 11th of December, 2023/ Jagabandhu, P.A.