Gopal Chandra Swain vs Parsuram Majhi & Others
2025 Latest Caselaw 6544 Ori

Orissa High Court

Gopal Chandra Swain vs Parsuram Majhi & Others on 2 April, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                    RSA No.323 of 2024

[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.]


Gopal Chandra Swain                    ......   Appellant


                            -Versus-


Parsuram Majhi & Others                ...... Respondents


Advocate(s) appeared in this case:


For the Appellant            :Mr. M.M. Basu, Advocate

For Respondents              : None


CORAM:
         JUSTICE SASHIKANTA MISHRA

                       ORDER

rd 3 April, 2025

SASHIKANTA MISHRA, J.

This is a plaintiff's appeal against a confirming

judgment.

2. The suit of the plaintiff for declaration of right,

title and interest along with defendant No.2 over the suit

schedule land, irrespective of sale deed being RSD

No.1951 of dated 02.04.1974 executed in favour of

defendant No.1 was dismissed by the Trial Court and

confirmed in appeal by the First Appellate Court.

3. For convenience, the parties are referred to as per

their respective status in the Trial Court.

4. The plaintiff's case, briefly stated is that the

property originally belonged to his grandmother

Indramani Bewa @ Indramani Swain. She sold the

property for legal necessity to the plaintiff and defendant

No.2 for consideration vide RSD No.1190 dated

06.03.1972. At that time, both the plaintiff and defendant

No.2 were minors and as such they were represented by

their mother guardian. Subsequently, they renovated the

old house standing over the property and possessed the

same. During settlement operation the ROR was prepared

exclusively in the name of the defendant No.2. The

plaintiff therefore, filed a suit being TS No.1056 of 1991,

in the Court of First Addl. Civil Judge (Sr. Division),

Balasore, claiming himself to be owner of the suit property

and for partition. The suit ended in compromise as per

which, both became joint owners of the property. While

possessing such property on 22.07.2012, defendant No.1,

being their adjacent owner, attempted to damage the

western side fence. On protest, he disclosed that he had

purchased the property.

5. On further enquiry on 24.06.2012 from the Sub

Registrar's Office, the plaintiff came to know that the

defendant No.1 had managed to obtain a sale deed

bearing No.1951 dated 12.04.1974 from his grandmother.

Since the sale deed was executed after execution of the

sale deed in favour of the plaintiff and defendant No.2, no

right, title and interest accrued thereby in favour of

defendant No.1. In spite of the same, defendant No.1

managed to record Ac 0.14 dec. of land in his favour and

encroached upon the rest Ac 0.02 dec. out of Sabik Plot

No.2898. Hence, the suit.

6. The Defendant No.1 contested the suit by filing

the written statement. He questioned the maintainability

of the suit on the ground of improper description of the

suit property. It was claimed that the suit was grossly

barred by limitation as the sale deed dated 02.04.1974

was not challenged by plaintiff within three years from the

date the same came to his notice. The plaintiff had never

raised his claim in the earlier suit filed by him for which

the suit is also hit by the principle of constructive res-

judicata. That apart, the plaintiff and his brother basing

on RSD dated 06.03.1972 initiated Objection Case

No.3905 of 1981 before Settlement Authority, defendant

No.1 on the basis of sale deed dated 02.04.1974 filed

Objection Case No.1110 of 1981 and another objection

case bearing No.156 of 1981 was also initiated. All the

three cases were heard together by the Settlement Officer

in the presence of all parties and accordingly MS Plot

No.43/2599 was recorded in the name of defendant No.1.

This fact was known to the plaintiff in 1988 but he never

challenged the ROR within the period of limitation.

Defendant No.1 further claims to have purchased the suit

property from Indramani Bewa vide RSD dated

02.04.1974 for consideration of Rs.1400/- with delivery of

possession. It is also claimed that the plaintiff and

defendant No.2 through their mother guardian alienated

Ac 0.04 dec. of land from suit Plot No.2898 in favour of

Dayanidhi Bal through RSD dated 06.05.1976 with

delivery of possession, which has since been recorded in

his name.

7. Basing on the rival pleadings, the Trial Court

framed the following issues for determination:

(i) Whether the plaintiff has any cause of action to bring the suit?

       (ii)     Whether the suit is maintainable?
       (iii)    Whether the plaintiff and defendant No.2

have joint right, title and interest over the suit land?

(iv) Whether the suit is bad for indefinite description of suit land?

(v) Whether the plaintiff is entitled for any other reliefs?

8. After considering the oral and documentary

evidence the Trial Court held under issue Nos.3 and 4

that the plaintiff had failed to establish that he and

defendant No.2 have joint right, title and interest over the

suit land. On issue nos. 1 & 2, the Trial Court,

considering the fact that there is discrepancy in the

evidence relating to the date of his knowledge regarding

execution of the sale deed in favour of the defendant No.1,

held that the plaintiff had no valid cause of action. On

such findings basically, the suit was dismissed.

9. The plaintiff carried the matter in appeal. The

First Appellate Court after going through the findings of

the Trial Court and on appreciation of the oral and

documentary evidence, refused to interfere with the

judgment of the Trial Court. The said order is impugned

in the present appeal.

10. Heard Mr. M.M. Basu, learned counsel for the

appellant on the question of admission of the appeal.

11. Mr. Basu would argue that both the Courts

below have erred in law in holding that the suit of the

plaintiff is barred by limitation without taking note of the

date on which the cause of action first accrued i.e., on

22.07.2012. It was the specific case of the plaintiff that on

that date, defendant No.1 attempted to damage the

western side fence of his property. According to Mr.

Basu, the period of limitation ought to have been

calculated from that date. In this context, Mr. Basu has

relied upon the judgment of the Supreme Court in the

case of Jai Ram V. Som Prakash & Anr. Etc. (2025

INSC 227) Mr. Basu further submits that the plaintiff

had properly and adequately described the suit property

in the plaint but both the Courts below erroneously held

the same to have been improperly described, which is a

perverse finding.

12. This Court has carefully perused the impugned

judgment and given its anxious consideration to the

contentions advanced by the plaintiff-appellant. There is

no dispute that the sale deed sought to be ignored was

executed way back in the year 1974 i.e., RSD No.1951

dated 12.04.1974. It is otherwise borne out from the

evidence on record that there were at least three objection

cases filed before the Settlement Officer including one by

the plaintiff himself in the year 1981. The ROR was finally

published in favour of the defendant No.1 in the year

1988. The plaintiff took no steps for correction of the ROR

either before the Settlement Authorities or by filing a suit

within the prescribed period of three years. The First

Appellate Court has taken note of such omission of the

plaintiff to hold that the relief claimed by the plaintiff vis-

à-vis the sale deed dated 02.04.1974 is hit under Article

59 of the Limitation Act as well as Section 42 of the

Odisha Survey and Settlement Act. The evidence on

record clearly shows the plaintiff to have been aware of

the existence of the sale deed dated 02.07.1974 as well as

the recording of the suit property in the name of

defendant No.1 at least in 1988. The suit is therefore,

grossly barred by limitation. Having held so, it is not

necessary to examine the further findings rendered by

both the Courts below.

13. Even then, perusal of the impugned judgment

does reveal that both the Courts below have concurrently

found the plaintiff of not being entitled to the relief

claimed. It has not been suggested that such finding is

perverse, against the weight of evidence on record or

otherwise such that no prudent person can arrive at.

14. It is settled law that concurrent findings of fact

are not to be interfered with as a matter of course by the

Second Appellate Court. Such interference is called for

only when the findings are perverse, against the weight of

evidence on record or such as no prudent person would

arrive at. Reference in this regard is made to the Supreme

Court in the case of Gurvachan Kaur v. Salikram, (2010)

15 SCC 530, where it was held as follows:

"It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."

15. For the foregoing reasons therefore, this Court

finds no substantial question of law to be involved for

adjudication in the Second Appeal so as to be persuaded

to admit the same. Resultantly, the appeal is dismissed.

............................

Sashikanta Mishra Judge Orissa High Court, Cuttack.

The 3rd April, 2025/P. Ghadai, Jr. Steno

Designation: Junior Stenographer

Location: High Court of Orissa, Cuttack. Date: 09-Apr-2025 18:44:14