Orissa High Court
RSA/150/2017 on 23 March, 2021
Author: D. Dash
Bench: D. Dash
RSA NO.150 of 2017
06. 23.03.2021 This matter is taken up through hybrid arrangement
(virtual/physical mode).
The Appellant by filing this appeal under section 100 of
the Code of Civil Procedure (for short, the Code) has assailed
the judgment and decree dated 28.01.2017 and 07.02.2017
respectively passed by the learned 3rd Additional District
Judge, Cuttack in RFA No. 96 of 2013/32 of 2014.
By the said judgment and decree, the lower Appellate
Court has confirmed the judgment and decree passed by the
learned Civil Judge (Junior Division), Salipur in Civil Suit No.
54 of 2012.
2. Be it stated here that the Plaintiff before the Trial Court
had carried the First Appeal under section 96 of the Code as
the Appellant and he having been unsuccessful in both the
Courts below has now filed this Second Appeal.
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. The Plaintiff's case is that the suit land as per the sabik
record stood recorded in his name and in the name of his
brother Pahali Mallik sons of Sarat Mallik as well as Karuni
Mallik, s/o- Sadhu Mallik. It is his further case that in an
2
amicable partition, the same came to be allotted to him and his
brother Pahali and accordingly, their possession was noted in
the remark column of the sabik record of right as against the
land under plot No. 204. During Consolidation Operation, the
land again came to be recorded under khata No. 31 in the
name of Karuni, s/o- Sadhu, Pahali and Pari (Plaintiff) both
the sons of Sarat Mallik. However, in the remark column, the
possession of Pahali and Karuni got reflected as against the
land under that plot instead of Plaintiff and his brother Pahali.
It is stated that the Plaintiff with his co-sharer Pahali being the
owners were in possession of the suit land. While so
possessing, Pahali sold his share of land to the Plaintiff by the
registered sale deed dated 29.11.1996 and thus the Plaintiff
became the owner of the entire plot of land which is the suit
land. The Plaintiff denies that Karuni had any right, title,
interest and possession nor his legal heirs and successors i.e.
the Defendant Nos. 1 and 2, the widow and daughter
respectively over the suit land. According to him, Karuni had
managed to record his name in the remark as being in
possession of the suit land by practising fraud upon the
Consolidation Authority. That earlier being not known to the
Plaintiff, when it came to his notice on 3.4.2012 as the
Defendant No. 1, S/o- Karuni staked his claim to that effect,
the Suit has been filed.
3
4. The Defendant No. 1 being the son of Karuni and
Defendant No. 2 being Karuni's daughter contested the suit by
filing the written statement. The daughter of Plaintiff's brother
Pahali being arraigned as Defendant No. 3, she has neither
filed any written statement nor participated in the hearing of
the suit. The case of Defendant Nos. 1 and 2 is that the Suit is
hit by provision of contained in Orissa Consolidation of
Holding and Prevention of Fragmentation of Land Act, 1972.
Lack of cause of action for filing the Suit has also been taken
as a ground to non-suit the Plaintiff.
The specific case projected by them is that the suit land
is the ancestral undivided Gharabari land of the Plaintiff as
well as the Defendants and they are in possession according to
their share having their residential houses over it. In the year
1972, the Settlement record of right was published in respect
of the suit land in the name of all the co-sharers and it had an
erroneous remark against sabik suit plot No. 204 noting
possession of the Plaintiff and his brother Pahali which
according to them, ought to have been in favour of Pahali and
Karuni. So it is stated that during Consolidation Operation,
Karuni filed objection case for correction of the said remark as
against the suit plot and on verification of the records and due
enquiry in the field, the Consolidation Authority have rightly
made the entry for the remark column of the ROR as against
the suit plot indicating the possession of Pahali and Karuni as
4
per the actual position in the field. This Consolidation ROR
has been published in the year 1982. They however admit that
Pahali has sold his share to the Plaintiff and he is in possession
of said land which had fallen in the share of Pahali. The
Defendant Nos. 1 and 2 claim that they are in possession of
the rest area of the suit land as to the land falling to the share
of Karuni.
5. On the above rival pleadings, the Trial Court has framed
as many as five issues. In the backdrop of the case and counter
case of the parties; upon appreciation of evidence both oral
and documentary on record, the Trial Court has answered
Issue No. 4 as to the claim of right, title, interest and
possession of the suit property by the Plaintiff in the negative.
Accordingly, the Plaintiff's suit seeking declaration of right,
title, interest and possession over the suit land situated in
Mouza -Pandi under Khata No. 64, Plot No. 204 ad-measuring
0.045 dec. (as per 1977 ROR) corresponding to the land under
Khata No.31, Plot No. 124 measuring Ac.0.045 dec. as per
Consolidation ROR together other consequential reliefs has
been dismissed.
The unsuccessful Plaintiff having filed the First Appeal
has also been unsuccessful. Hence, this Appeal.
6. Learned counsel for the Appellant (Plaintiff) submits
that the Courts below have committed illegality by inventing a
5
third case in presuming the suit property as the ancestral
undivided joint family property and that is in the absence of
pleading and evidence to that effect. She submits that further
error has been committed by holding that for non-proving the
factum of partition as projected by the Plaintiff, the suit is
liable to be dismissed. She further submits that since the
Consolidation Authority have no jurisdiction to record the
possession of party/parties in the remark column, the Courts
below ought to have held that the consequential issuance of
Record of Right with said remark entry has no legal sanctity.
These are said to be the substantial questions of law standing
to be answered in this Appeal.
7. Keeping in view the submission made, I have perused
the judgments of the Courts below.
8. Admittedly, the suit land under sabik khat No. 64
assigned with plot No. 227 as per the record of right published
in the year 1977 was standing in the name of Karuni, s/o-
Sadhu, Plaintiff and his brother Pahali both sons of Sarat
which gives rise to presumption of joint ownership. However
in the remark column in so far as the above plot of land is
concerned, there was a note of possession in favour of Pahali
and Pari, the Plaintiff to the exclusion of Karuni subsequent
recording of the suit land has been made jointly in the names
of Karuni who happens to be the father of Defendant No. 1
and 2, Pari, the Plaintiff as well as his brother Pahali who
6
happens to be the father of Defendant No. 3. In the remark
column of that ROR noting as to the possession of Pahali and
Karuni finds mention. From that however, in view of the
relationship between the parties, partition cannot be presumed
and it cannot be said that said land had fallen in the share of
Plaintiff and his brother. It may at best be taken to be in
separate possession for convenience on mutual agreement as
to that. The Plaintiff's claim over the suit land is based on
amicable partition and it is said that the suit property had been
in his and his brother's share. Having purchased half share of
Pahali in the year 1996, he thus says to have become the
exclusive owner of the entire suit property. The whole case as
above is merely based on that remark column entry as to
possession of Pahali and himself in respect of the suit land in
the record of right standing in the name of three. While
denying the above, the Defendants assert that there was no
partition in respect of the suit land. So this factum of partition
as pleaded by the Plaintiff and denied by the Defendant is the
contentious issue. Therefore, the Courts below have rightly
gone to analyze the evidence on record in judging the
acceptability of the said stand. In view of the record position
and the relationship between the parties and in the absence of
any such clear and cogent evidence as to the facts as above
stated, the Courts below having found the Plaintiff to have
failed to prove the case of partition and allotment; this Court
7
finds no such infirmity or illegality therein. The lower
Appellate Court has also rightly then accepted the purchase of
share of Pahali over the suit land by the Plaintiff. Accordingly,
the Courts below did commit no such error in holding the
Plaintiff is entitled to his share as also the share of Pahali
leaving the rest portion of the suit land as resting upon the
Defendant Nos. 1 and 2 who are the heir and successors of
Karuni towards share of Karuni.
09. In view of the aforesaid discussion and reasons, the
submission of the learned counsel for the Appellant (Plaintiff)
is hereby repelled.
10. Resultantly, it is held that there surfaces no substantial
question of law in the case meriting admission of this Appeal.
Accordingly, the RSA stands dismissed. No order as to
cost.
.....................
D. Dash, J.
Aks