Orissa High Court
Judhisthir Moharana vs Menaka Das & Another on 8 January, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.186 of 2022
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment & decree dated 02.05.2022 &
13.07.2022 respectively passed by the learned Additional District Judge,
Salipur in R.F.A. No.142 of 2013 confirming the judgment & decree
dated09.10.2013 & 23.10.2013 passed by the learned Civil Judge (Junior
Division), Salipur in Civil Suit No.103 of 2011.
Judhisthir Moharana .... Appellant
-versus-
Menaka Das & Another .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- M/s. Ajit Chandra Mohapatra, A.K.
Panda, B. K. Panda
Advocates
For Respondents- --------
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 03.01.2024 :: Date of Judgment: 08.01.2024
D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of
Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the
judgment & decree dated 02.05.2022 & 13.07.2022 respectively passed
by the learned Additional District Judge, Salipur in R.F.A. No.142 of
2013.
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The Respondent No.1 as the Plaintiff had filed the Suit for
declaration of her right, title, interest and possession over the suit land,
permanent injunction and other consequential reliefs arraigning the
Respondent and the Appellant as Defendant No.1 & 2 respectively in the
Court of learned Civil Judge (Junior Division) Salipur. The suit having
been decreed, the present Appellant (Defendant No.2) having suffered
from the same, had carried the Appeal under section 96 of the Code. The
said Appeal has also 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. Plaintiff's case is that she has purchased the suit property from
Defendant No.1 by registered sale deed dated 19.04.2010. In the
Settlement Record of the year 1977, the suit property was shown to be in
possession of one Baishnab Moharana. Said Baishnab died issueless.
However, during the life time of Baishnab, he had sold Ac.0.060 decimal
of land out of Ac 0.108 decimal to one Chandramani Ojha. During
Consolidation Operation, the rest property was further recorded in the
name of the Defendant No.1, who happens to be the daughter of
Baishnab Moharana. The Defendant No.2 created disturbance with the
possession of the Plaintiff over the suit land and attempted to dispossess
her from the same. So the Plaintiff filed the suit.
4. The Defendant No.2 coming to contest the suit in his written
statement has averred that he has been in possession of the suit land
raising a residential house over the same for more than a century. It is
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stated that said possession was with the permission of the Ex-
Intermediary and being a tenant before the vesting, by virtue of operation
of the provision of section 8(1) of the Orissa State Abolition Act. The
Defendant states to have been recognized as a stitiban tenant and thus his
possession is noted in the remark column of the Record of Right. The
Defendant No.2 states that from the time of his purchase, they are in
possession of the suit land for more than a century as of right without
any disturbance from any quarter and that such possession is said to be
open, peaceful, uninterrupted and with the knowledge of the Plaintiff,
running adverse to her interest.
Thus it is said that there has also been acquisition of title of the
suit land by the Defendants by virtue of adverse possession. The Record
of Right in the name of Defendant No.1 is said to be wholly erroneous
and the Defendant No.2 claims that he should have been recorded as the
stitiban tenant since he was a deemed tenant in respect of the suit land.
5. On the above rival pleadings, the Trial Court has framed as many
as seven issues. The crucial issue is in relation to the claim of the
Plaintiff of having the right, title, interest and possession over the suit
property. The Trial Court on analysis of evidence and their evaluation
has answered the same in favour of the Plaintiff. The said answer has led
the Trial Court to decree the suit.
6. The Defendant No.2 being aggrieved by the said judgment and
decree passed by the trial Court carried the First Appeal. The First
Appellate Court upon examination of evidence and their evaluation
independently at its level has affirmed the findings of the Trial Court and
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accordingly, the Defendant No.2 is under the sufferance of the
Judgments and decrees passed by both the Courts below.
7. Learned counsel for the Appellant (Defendant No.2) submitted
that the Courts below are not right in finding that the Plaintiff is entitled
to a decree because of her purchase when in the Record of Right
published in the settlement operation as also during consolidation, the
note of possession in relation to the suit land stands in favour of the
Defendant No.2. He further submitted that the Courts below ought not to
have held that the title in respect of the suit land has passed on to the
hands of the Plaintiff and without any finding of possession in favour of
the Plaintiff, on the face of the note of possession in favour of the
Defendant No.2, the suit ought to have been dismissed. 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 gone
through the judgments passed by the Courts below. I have also read the
averments taken in the plaint and written statements and have perused the
evidence both oral and documentary let in by the parties.
9. It is the case of the Plaintiff that the Defendant No.1 has sold the
suit land to the Plaintiff under Ext.1 on receiving due consideration
followed by delivery of possession. As against the above, the case of
Defendant No.2 is that from the time of his purchase, he is in peaceful
possession of the suit property for more than a century. In the written
statement at one stage, when he claims that his status in relation to the
suit land is as the deemed tenant and as such recognizable as he is a
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stitiban tenant, his subsequent claim is that he has acquired title over the
suit property by way of adverse possession. The pleas appear to be
contradictory to one another and irreconcilable. Moreover, the written
statement filed by the Defendant No.2 being read in its entirety, it is seen
that all such necessary facts for providing the foundation to the
ingredients required to be proved have not been pleaded. The Defendant
No.2 when is not certain as to if the Plaintiff or her vendor had the title
over the suit land and does not state to have been in possession of the
same, to their knowledge in denial of their title and claiming title unto
himself; simply for these reasons when the finding of the Courts below
stand that the Plaintiff has the title over the suit land, the Courts below in
decreeing the suit filed by the Plaintiff are found to have not committed
any such error.
10. This Court is therefore of the view that there arises no such
substantial question of law for being answered in this Appeal meriting its
admission.
11. Resultantly, the Appeal stands dismissed. No order as to cost.
(D. Dash),
Judge.
Gitanjali
Designation: Junior Stenographer
