Orissa High Court
Laxman Chandra Giri vs Sabi Deo & Others on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.29 of 2016
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment dated 30th November, 2015 &
11th December 2015 respectively passed by the learned District Judge,
Mayurbhanj, Baripada in R.F.A. No.49 of 2014 confirming the
judgment & decree dated 30th September, 2014 & 15th October, 2014
respectively passed by the learned Civil Judge (Senior Division),
Baripada in Civil Suit No.275 of 2009.
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Laxman Chandra Giri .... Appellant
-versus-
Sabi Deo & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. M. K. Panda
(Advocate)
For Respondents -
CORAM:
MR. JUSTICE D.DASH
Date of Hearing :07.11.2023 : Date of Judgment: 13.11.2023
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 dated 30th November, 2015 & 11th December 2015
respectively passed by the learned District Judge, Mayurbhanj, Baripada
in R.F.A. No.49 of 2014.
The Respondent Nos.1 to 3, as the Plaintiffs, had filed Civil Suit
No.275 of 2009 in the Court of the learned Civil Judge (Senior
Division), Baripada for confirmation of possession and permanent
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injunction. The suit, having been decreed, the Defendant No.1, being
aggrieved, had carried the Appeal under section 96 of the Code, which
has been dismissed.
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 Suit.
3. Plaintiffs' Case:-
The land described in Schedule-A of the plaint with other lands
were owned and possessed by one Gadadhar Giri, the father of
Defendant Nos.1 & 2 as it had fallen in his share in an amicable
partition of the landed properties between him and his brothers. After
the death of Gadadhar in the year 1967-98, his two sons, namely
Laxman (Defendant No.1), Rama Chandra (Proforma Defendant No.2)
and widow (Bidulata) inherited the same. It is stated that an amicable
partition, being effected between them, the suit land with other lands
had fallen to the share of Defendant No.1 and accordingly, he possessed
the same as its owner. The Defendant No.1 sold the suit land to Golak
Deo by registered sale deed dated 07.01.1974 for a consideration of
Rs.3,200/- and delivered possession of the same to Golak. Accordingly,
the suit land, in the current settlement, was recorded in the name of
Golak. Golak, having died in or about the year 2004, the Plaintiffs and
Defendant Nos.3 to 5, being his heirs, succeeded to the same.
Bidulata, the wife of Gadadhar filed T.S. No.8/17 of 1974-77-I for
partition of their joint family lands including the suit land. In that suit,
the Defendant Nos.1 & 2 and the purchaser of the suit land, namely,
Golak had been arraigned as Defendant No.10, 11 & 16 respectively.
Thereafter, another suit for partition, i.e., T.S. No.87 of 1994 was filed.
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In Execution Case No.7 of 2004 arising out of the final decree passed in
T.S. No.88 of 1997, the Plaintiff of that suit managed to get an order of
confirmation of possession over the suit land without impleading the
legal representatives of Golak, i.e., the Plaintiffs and Defendant Nos.3 to
5 of the present suit. It is said that the said decree simply remained on
pen and paper without being carried into action in the field at any point
of time. To the utter surprise of the Plaintiffs, when some time in the
month of January, 2009, the Defendant No.1 claimed the title over his
suit land and threatened to dispossess the Plaintiffs and Defendant Nos.3
to 5, the suit came to be filed.
4. The Defendant No.1, in his written statement, asserted the suit
land to be the joint family property of Defendant Nos.1 & 2 and their
father Gadadhar. It is said that after the death of Gadadhar, they had
inherited the land of Gadadhar and their mother Bidulata filed T.S.
No.8/17 of 1974-77-I in which her 1/3rd share was curved out and rest
2/3rd was kept joint with Defendant Nos.1 & 2 and thereafter Defendant
No.1, having filed T.S. No.87 of 1994, which was finally decreed, the
possession of the Defendant No.1 over the suit land was confirmed.
They plead that Golak had never possessed the suit land and the
possession of the suit land was all through with the Defendant No.1.
5. The Trial Court, on the above rival pleadings, has framed as many
as four issues and upon examination of the evidence and their
evaluation, answered all those in favour of the Plaintiffs and the suit
stood decreed.
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6. The Defendant No.1, being aggrieved by the said order passed by
the Trial Court, having carried an Appeal under section 96 of the Code,
has again been unsuccessful.
7. Learned counsel for the Appellant-Defendant No.1 submitted that
when admittedly the property was the ancestral property in the hands of
Gadadhar which ultimately came to be succeeded by Defendant No.1, he
had no right to alienate the same and, therefore, the Courts below ought
not to have accepted the claim of the Plaintiffs. He, therefore, submitted
that the recording of the suit land in the name of Golak, being nonest,
the same ought not to have been given any recognition for the purpose
of acceptance of the claim of the Plaintiff as laid in the suit. It was also
submitted that as against the sale deed dated 07.01.1974, which is
projected by the Plaintiffs as the document by which the title in respect
of the suit land, has come to rest on them, the suit, being filed in the year
2009, is hopelessly barred by limitation, which the Courts below have
not taken note of. He, therefore, urged for admission of this Appeal to
answer the above as the substantial questions of law.
8. Keeping in view the submissions made, I have carefully read the
judgments passed by the Courts below. I have also gone through the
rival pleadings and the evidence both oral and documentary let in the
parties as placed.
9. The Plaintiffs' case is based on the registered sale deed dated
07.01.1974 (Ext.1) executed by none other than the present Defendant
No.1 in favour of Golak. Now, the Defendant No.1, who is the vendor of
the said sale deed is impeaching the same on the ground of lack of his
own authority/power which as per law he is estopped from so
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questioning on that very ground. Furthermore, the allotment sheet
prepared in the final decree passed in T.S. No.8/17 of 1974-77-I clearly
shows that the suit plots have been given to the share of Defendant
Nos.1 & 2 and in the subsequent partition suit, i.e., T.S. No.87 of 1994
when the Commissioner effected the partition of lands of both
Defendant Nos.1 & 2, he allotted the suit plots in the share of the
Defendant No.1 as because he had sold away the same to Golak by
registered sale deed and accordingly, it had been adjusted towards his
share. Thus, it goes to show that the Defendant No.1 himself has
accepted the sale of the suit land made by him in favour of Golak.
Therefore, the defence of the Defendant No.1 for not giving effect to the
sale executed by him way back in the year 1974 has absolutely no legal
base to stand upon.
In the absence of any claim from the side of the Defendant No.1
that he has perfected title over the suit land by way of adverse
possession, which in the facts and circumstances of the case and in view
of the main defence taken by him, could not have even been so
projected, the submission as to the suit, being barred by limitation has
no leg to stand.
For all those aforesaid, the submission of the learned counsel for
the Appellant that the Appeal merits admission to answer the substantial
questions of law, as pointed out above, cannot be countenanced with.
10. In the result, the Appeal stands dismissed. There shall be no order
as to cost.
(D. Dash),
Signature Not Verified Judge.
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: HIGHBasu
COURT OF ORISSA : CUTTACK
Date: 15-Nov-2023 11:20:14
RSA No.29 of 2016
