Orissa High Court
Suril Alias Surai Majhi And Ors vs Laxman Majhi And Others on 1 February, 2016
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO. 23 OF 2008
From the judgment and decree dated 12.10.2007 and 13.11.2007
respectively by the learned Additional District Judge, Baripada in R.F.A.
No. 34/69 of 2007-04.
.........
Suril @ Surai Majhi & ors. ....... Appellants
VERSUS
Laxman Majhi & others ....... Respondents.
For Appellants : M/s. B.N.Bhuyan, B.N.Mishra,
C.R.Swain, advocates.
For Respondents : xxxx.
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
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Date of hearing : 20.01.2016 : Date of judgment : 01.02.2016
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The appellants in this appeal have called in question the
judgment and decree passed by the learned Additional District Judge,
Baripada in R.F.A. No.34/69 of 2007-04 confirming the judgment and
decree passed by the learned Civil Judge (Sr. Division), Karanjia in Title
Suit No.8 of 2002 in decreeing the suit filed by the respondents as the
plaintiffs in part in respect of schedule 'B' land and holding their
entitlement for recovery of possession of schedule 'D' lands except the
land under plot nos.75 and 65/250.
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2. For the sake of convenience, in order to bring in clarity and
avoid confusion, the parties hereinafter have been referred to as they
have been arraigned in the court below.
3. The case of the plaintiffs is that one Jatia is the common
ancestor of the defendants and he had land measuring Ac.5.56 dec. in
village-Guliajudi including the suit land under Khata No.3. Their
further case is that on 27.10.1931, Jatia had sold the land described in
schedule 'B' of the plaint to Pitha Majhi and Karu Majhi the two sons of
Laxman Majhi who are the predecessors-in-interest of the plaintiffs for a
consideration of Rs.38/- by an unregistered sale deed coupled with
delivery of possession. It is stated that since the date of the said
purchase, Pitha and Karu remained in possession of the land and they
had also later on partitioned between them and possessed respective
shares separately which came to the hands of their successors
accordingly. It is further stated that after the death of two sons of Jatia,
their sons had partitioned their properties and remained in separate
possession. While continuing as such, one San-Ananta son of Chhutai
who happens to be the son of Jatia had sold schedule 'C' land to
Laxman, the plaintiff no.1 by a registered sale deed dated 17.05.1974
for a consideration of Rs.1000/- and had delivered of possession and
since then the plaintiffs have been in possession of the said land. It is
alleged that on 18.11.1991, the defendant nos.1 to 3 forcibly cut away
the paddy crops from the land described in schedule 'D-1'. So, there
was initiation of a proceeding under section 145, Cr.P.C. vide C.M.C.
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No.31 of 1991. The properties were attached and by the order in the
said proceeding, the plaintiff no.1 has been found to have been illegally
dispossessed. Accordingly, the order of restoration of possession had
been passed. The said order was challenged in criminal revision. During
pendency of the said revision, as the defendant nos.1 and 3 created
further disturbance over schedule 'D' lands, the plaintiff no.1 had filed
another proceeding under section 145 Cr.P.C. wherein the parties were
directed to seek redress in the proper court of law. Hence, the plaintiff
filed the suit for declaration of their right, title and interest over
schedule 'B' land on the basis of purchase of the same by their
predecessors-in-interest, namely, Pitha Majhi and Karu Majhi on
27.01.1931from the common ancestor of the defendants, namely, Jatia Majhi as also for declaration of their right, title and interest over 'C' schedule land on the basis of purchase being made by the plaintiff no.1 from San-Ananta s/o Chhutai Majhi by registered sale deed dated 17.05.1974. Prayer for recovery of possession in respect of schedule 'D- 1' and 'D-2' of the land has also been made.
4. The defendant nos.1 to 3,5 and 6 contested the suit. It is their case that Jatia died prior to 1941 settlement and in the records of right of 1941 settlement published during Darbar administration when the State was under the Sovereign Ruler, the name of their predecessors-in-interest found place as the recorded tenant in respect of land under Sabik Khata No.3 of Mauza-Guliajudi. It is further stated that the two sons of Jatia, namely, Chhutai and Surai had partitioned // 4 // those properties long back and there the suit lands had fallen to the share of Surai, who died leaving behind his three sons, namely, Bad- Ananta, Kuanr and Ramsai. Ramsai died issueless and they had also partitioned the land amicably when the suit lands were allotted to Bad- Ananta and after his death his widow and three sons who are defendant nos.8, 1 to 3 came to possess. It is stated that in the year 1991, the plaintiff no.1 falsely initiated the proceeding under section 145 Cr.P.C. and the order in the proceeding is said to have been passed illegally. The subsequent proceeding is also said to have been initiated without any justification.
It is the specific case of the defendants that Jatia never sold schedule 'B' land to Karu and Pitha nor schedule 'C' land was sold by San-Ananta to the plaintiff no.1. They had no knowledge about the note of possession in the record of rights and those are said to have been manipulated. Thus, the defendants vehemently resist the claim of title and possession of the plaintiffs over the suit land.
5. On such rival pleadings, the trial court framed in total nine issues. Taking up issue no.5 for decision at first as regards the claim of the plaintiffs over schedule 'B' land, on analysis of evidence as also looking at the documents especially the record of rights, positive finding has been recorded in favour of the plaintiffs that the land in schedule 'B' has been in possession of Pitha Majhi and Karu Majhi and that has ultimately come to the hands of the plaintiffs. So, it is said that they have acquired title over the suit land.
// 5 // So far as the schedule 'C' land is concerned which relates to the claim of the plaintiffs by registered sale deed dated 17.05.1974 said to have been executed by San-Ananta in favour of plaintiff no.1, finding, however, has been rendered against the plaintiffs by clearly holding that they have failed to prove that schedule 'C' land was the land that had fallen to the share of San-Ananta in a partition and that he had sold the same by registered sale deed. Next proceeding to decide issue no.7 concerning the possession of the schedule 'D-1' and 'D-2' land, the answer has been rendered that the plaintiffs have no right, title and interest in respect of the land under plot no.75 and 65/250. With the above findings, the trial court decreed the suit in part as already stated above.
Being aggrieved by the aforesaid judgment and decree passed by the trial court, these appellants had carried an appeal.
It may be mentioned here that the plaintiffs did not further challenge the judgment and decree of the trial court in respect of the refusal of their claim in part either by filing independent appeal or by preferring any cross-appeal/objection. The lower appellate court as it appears from the judgment has taken up the examination of the sustainability of the findings of the trial court in respect of issue nos.5 and 7. Proceeding to have an independent analysis of evidence on record and upon their evaluation, it has finally affirmed the findings of the trial court on those issues which has led to the dismissal of said // 6 // appeal. Thus, now these unsuccessful defendants have filed this second appeal under section 100 of the Code of Civil Procedure.
6. Learned counsel for the appellants submits that the courts below are not justified in holding that the ancestors of the plaintiffs, namely, Pitha and Karu have purchased the schedule 'B' land from Jatia when no such document has been proved from the side of the plaintiffs and moreover such a finding simply basing upon the entry in the record of right as regards possession is unsustainable in the eye of law. This according to him is the substantial question of law so as to be certified for admission.
It stands admitted that the schedule 'B' land originally belonged to Jatia who died prior to the publication of the record of right in the settlement of the year 1940-41. It is also admitted that the land stood recorded in the name of Chhutai and Surai sons of Jatia in the said record of rights. In that old record of rights of the year 1940-41 which has been published during the Darbar administration in consonance with the provision contained in Chapter VIII of the Mayurbhanj Regulation, 1904, the note of possession in favour of Pitha Majhi and Karu Majhi very much finds mention. It is so provided in section 40 of the said regulation in Chapter - VIII which concerns with Record of Rights and Settlement of land, as to what the Record of Rights should contain.
Oral evidence on the score of possession has been let in by the plaintiffs and it is seen that the trial court as well as the lower // 7 // appellate court have gone for critical examination of said evidence, which have been said to have provided support to the case of the plaintiffs as regards their long possession over Schedule - B land. One Amin who is said to have gone to measure the suit land in the month of April 1991 has also deposed to have found the possession of the suit land to be with the plaintiffs. The trial court has also taken into consideration the evidence let in by the defendants to counter the factum of the possession of the suit land as claimed by the plaintiffs. In analyzing the evidence of D.Ws.1 and 2, it has been found that the witnesses such as P.W.2 and P.W.3 examined on behalf of the plaintiffs are having lands adjoining the suit land. The plaintiffs have proved the certified copy of the order dated 09.04.1940 passed in the settlement proceeding by the Khanapuri Officer, which is Ext.4. The order reveals (Ext.4) that Chotray and Surai sons of Jatia had advanced a claim for recording their names in respect of plot nos.53, 54, 62 and 63 in Sabik Khata No.3 and Pitha and sons of Karu Majhi were the opposite parities in the said objection case. In the order the sale of the said land by Jatia by an unregistered sale deed to Jatia and Karu has been stated and, therefore, finally the order for recording the possession in favour of Jatia and sons of Karu has been passed and that has been carried out in the record of right finally published in the year 1941 which has attained its finality being not called in question in any forum.
The above note of possession has further been reiterated in the record of rights (Ext.10). In view of above evidence on record, the // 8 // courts below have rightly rendered a concurrent finding that the plaintiff have been in possession of schedule 'B' land all along prior to the year 1940-41. Futhermore when the basis of claim is that of purchase which goes to show that the basis of possession as one of ownership leading further to say that its in denial of title of the true owner, the finding having been rendered by the courts below that the plaintiffs have acquired right, title and interest over schedule 'B' land is not found fault with as in both the cases, no such perversity surfaces.
Here is a case where the plaintiffs having been able to establish the factum of possession of the schedule 'B' land even prior to the year 1940-41 and that finds support with the noting of the record of rights of 1940-41 on the basis of an order passed in the settlement proceeding vide Ext.4 having again been reiterated in the subsequent settlement record (Ext.10), the courts below having also found the plaintiffs to have proved through oral evidence, their long standing possession since the time of their ancestors on the basis of their purchase and claiming as such, the submission of the learned counsel for the appellants fails.
7. Thus, the appeal does not merit admission and is accordingly dismissed. No order as to cost.
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D. Dash, J.
Orissa High Court, Cuttack Dated, the 1st February, 2016/ Himansu.
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