Orissa High Court
Ghanashyam Hemalata Vidya vs Dhruba Charan Pattnaik & on 6 April, 2024
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.8 of 2015
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Ghanashyam Hemalata Vidya .... Appellant
Mandir's Society, Vill.-Bhuan,
PO.-Chhaitana, PS.-Gop, District-
Puri
-versus-
Dhruba Charan Pattnaik & .... Respondents
Another Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr. Ramakanta Mohanty, Sr. Adv.
assisted by Ms. S. Mohanty, Adv.
For Respondents - Mr. G. Mukherji, Sr. Adv. assisted by Mr. S. Acharya, Adv.
CORAM:
MR. JUSTICE A.C.BEHERA Date of Hearing :27.02.2024:: Date of Judgment :06.04.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the confirming Judgment.
2. The appellant-society of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.203 of 1998 and the plaintiff-society was the appellant before the 1st Appellate Court in the 1st Appeal vide R.F.A No.14 of 2008.
The respondents of this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.203 of 1998 and they were the Page 1 of 12 RSA No.8 of 2015 {{ 2 }} respondents before the 1st Appellate Court in the 1st Appeal vide R.F.A. No.14 of 2008.
The suit of the plaintiff-society vide T.S. No.203 of 1998 before the Trial Court was a suit for declaration of title, confirmation of possession and permanent injunction.
3. As per plaint, the suit properties are in total Ac.10.00 decimals i.e. plot No.43 Ac.5.15 decimals, Plot No.45 Ac.4.85 decimals under Khata No.23 in Mouza Gada Bangar under Gop Police Station in the district of Puri corresponding to Hal Plot Nos.24/321, 24/323, 24/503, 24/621 and 23/622.
According to the plaintiff-society, the suit properties were originally belonged to Gopal Suar. The said Gopal Suar sold the suit properties to Harihar Panda by executing and registering the sale deed bearing No.2878 dated 17.04.1970 and delivered possession thereof. That Harihar Panda sold the suit properties to Bijaya Kumar Pradhan by executing and registering the sale deed bearing No.1055 dated 30.08.1994 and delivered possession thereof. That Bijaya Kumar Pradhan sold the said suit properties to the plaintiff-society by executing and registering the sale deed dated 08.02.1995 and delivered the possession thereof. Accordingly, since the date of purchase, the plaintiff-society became the exclusive owner and in possession over the suit properties. The plaintiff- Page 2 of 12 RSA No.8 of 2015
{{ 3 }} society has also made compound wall around the entire area of the suit properties and has also constructed buildings on some portions thereof for running the institute of technology as a full-fledged engineering college by taking electric connection to the same. The defendants have no manner of right, title, interest and possession over the suit properties. When, on dated 14.05.1998, the defendants falsely claimed the suit properties as their properties, then, without getting any way, the plaintiff-society approached the civil court by filing the suit vide T.S. No.203 of 1998 against the defendants praying for declaration of title of the plaintiff- society over the suit properties and for confirmation of possession on the same and for permanent injunction against the defendants in order to restrain them (defendants) from causing any sort of interference or disturbance in the peaceful possession of the plaintiff over the suit properties and also from changing the status quo thereof along with other reliefs, to which, the plaintiff-society is entitled for.
4. Having been noticed from the Trial Court in the suit of the plaintiff-society vide T.S. No.203 of 1998, the defendants challenged the same by filing their joint written statement denying the averments made by the plaintiff in its plaint by taking their stands inter alia therein that:
Due to the legal necessity of Sridhar Suar son of Gopal Suar, he (Sridhar Suar) executed 3 sale deeds in favour of the defendants vide Sale Page 3 of 12 RSA No.8 of 2015 {{ 4 }} deed No.4442 dated 26.12.1988 in selling Ac.3.00 decimals of sabik Plot No.42 under sabik Khata No.23 to the defendant No.1 and registered sale deed No.1702 dated 03.05.1989 in selling Ac.3.50 decimals of Sabik Plot No.42 under sabik Khata No.23 and registered sale deed No.1701 dated 03.05.1989 in selling Ac.2.25 decimals of Sabik Plot No.42 under Khata No.23 to defendant No.2. As per the above purchase, through the aforesaid three sale deeds, the defendants being father and son respectively are in possession over the said purchased properties from Sabik Plot No.42 by raising different trees on the same and they have also kept the said properties within one campus by erecting a pucca boundary wall around the same. As the defendants are in possession over the aforesaid properties covered under Sabik Plot No.42, for which, during the settlement operation, they had approached the settlement authorities to record their aforesaid purchased properties from Sabik Plot No.42 in their names by filing an appeal vide Appeal No.10488 of 1995 and the Settlement Authorities allowed their said appeal on 18.10.1996 and directed to record their above purchased properties in their names and accordingly, final R.o.R has been prepared in their names and for which, the plaintiff-society has no right, title, interest and possession over their purchased properties. Therefore, the suit of the plaintiff is not maintainable against them (defendants). As the defendants are the owners Page 4 of 12 RSA No.8 of 2015 {{ 5 }} and they are in possession over their aforesaid purchased properties through the above 3 registered sale deeds from Sridhar Suar, then, the plaintiff-society has no right, title, interest and possession over their properties. Therefore, the suit of the plaintiff is liable to be dismissed.
5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 numbers of issues were framed by the Trial Court in the suit vide T.S. No.203 of 1998 and the said issues are:
ISSUES
1. Has the plaintiff any cause of action to file the suit?
2. Is the registered deed of partition dated 17.04.1970 (seventeenth day of April, 19 hundred seventy) between Gopal Suar and Sridhar Suar is valid and binding to the parties?
3. To what relief, if any the plaintiff is entitled to?
4. Is the suit maintainable in law?
5. Is the suit barred by the law of limitation?
6. Has the plaintiff acquired title over the suit property by way of adverse possession?
6. In order to substantiate the aforesaid reliefs sought for by the plaintiff in their favour against the defendant in the suit, the plaintiff- society examined altogether 4 numbers of witnesses from its side as P.Ws.1 to 4 and relied upon series of documents vide Exts.1 to 9 on its behalf.
In order to nullify/defeat the suit of the plaintiff, the defendants examined 3 witnesses from their side including the defendant No.1 as D.W.3 and proved series of documents on their behalf vide Ext.A to S. Page 5 of 12 RSA No.8 of 2015 {{ 6 }}
7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue Nos.2 and 6 partly in favour of the plaintiff and partly in favour of the defendants and also answered other issues in favour of the plaintiff and basing upon the findings and observations made by the trial court in the issues, decreed the suit of the plaintiff in part on contest against the defendants as per its Judgment and Decree dated 16.01.2008 & 30.01.2008 respectively and declared the title of the plaintiff over Hal Plot No.24/321, 24/323 and 24/621 under Hal Khata No.84/Ka and also confirmed the possession of the plaintiff over the said 3 Hal plots under Hal Khata No.84/Ka, but, refused the prayer of declaration of title of the plaintiff over Hal Plot No.24/503 and 23/622 under Hal Khata No.74/Kha and permanently injuncted the defendants from creating any disturbance with the possession of the plaintiff over the said 3 plots i.e. over Plot Nos. 24/321, 24/323 and 24/621 under Hal Khata No.84/Ka and refused the prayer of injunction of the plaintiff in respect of Hal Plot No.24/503 and 23/622 under Hal Khata No.74/Kha assigning the reasons that, the Ext.3 is the sale deed, through which, the plaintiff-society has purchased suit properties from Bijay Kumar Pradhan. Bijay Kumar Pradhan had purchased the suit properties from Harihar Panda through the sale deed vide Ext.1. Harihar Panda had purchased that suit properties from Gopal Page 6 of 12 RSA No.8 of 2015 {{ 7 }} Suar through the sale deed vide Ext.2. There is no indication in the sale deeds vide Exts.2 & 1 (on the basis of which Ext.3 was prepared in favour of the plaintiff-society) about the selling of Sabik Plot No.42.
Therefore, the claim of the plaintiff-society over Sabik Plot No.42 corresponding to Hal Plot No.24/503 and 23/622 under Hal Khata No.74/Kha cannot be sustainable under law.
So, the plaintiff is not entitled for any relief as claimed in its plaint against the defendants in respect of Hal Plot No.24/503 and 23/622.
8. On being dissatisfied with the aforesaid Judgment and Decree passed by the trial court in the suit vide T.S. No.203 of 1998 on dated 16.01.2008 and 30.01.2008 respectively refusing the prayer of the plaintiff for declaration of title over Hal Plot No.24/503 and 23/622 under Hal Khata No.74/Kha and also refusing the prayer of the plaintiff for confirmation of its possession and permanent injunction in respect of the said two plots, the plaintiff-society challenged the same by preferring the 1st Appeal vide R.F.A. No.14 of 2008 being the appellant against the defendants by arraying them (defendants) as respondents.
After hearing from both the sides, the 1st Appellate Court dismissed that 1st Appeal vide R.F.A. No.14 of 2008 of the plaintiff and confirmed the Judgment and Decree passed by the trial court in T.S. No.203 of 1998 accepting all the findings and observations made by the trial court in the Page 7 of 12 RSA No.8 of 2015 {{ 8 }} suit and accordingly passed the Judgment and Decree of the dismissal of the 1st Appeal vide R.F.A. No.14 of 2008 of the plaintiff-society on dated 09.12.2014 and 18.12.2014 respectively.
9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide R.F.A. No.14 of 2008 of the plaintiff- society, the said plaintiff-society challenged the same by preferring this 2nd Appeal being the appellant against the defendants by arraying them (defendants) as respondents.
This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. Whether the learned courts below were correct in dismissing the plaintiff/appellant's claim over suit Sabik Plot Nos.42 & 43 on the ground that the same are not covered under the sale deeds (Ext.1 to 3) when the suit property acquired through such sale deeds has been described by boundaries, which in law prevails over the description through plot numbers?
10. I have already heard from the learned counsel for the appellant (plaintiff) and the learned counsel for the respondents (defendants).
11. It is the own case of the plaintiff/society that, Gopal Suar had sold the suit properties to Harihar Panda through registered sale deed dated 17.04.1970 vide Ext.2. The said Harihar Panda sold the properties covered under the sale deed vide Ext.2 through sale deed dated Page 8 of 12 RSA No.8 of 2015 {{ 9 }} 30.08.1994 (Ext.1) to Bijay Kumar Pradhan. That Bijay Kumar Pradhan sold the properties purchased by him through Ext.1 to the plaintiff through registered sale deed dated 08.02.1995 (Ext.3).
It is the concurrent findings of both the fact finding courts i.e. trial court as well as the 1st Appellate Court, after appreciating the oral and documentary evidence that, in the 1st sale deed executed by Gopal Suar in favour of Harihar Panda vide Ext.2, there is no indication of any corresponding Hal plot numbers of Sabik Plot Nos.43 and 45 indicated in that sale deed vide Ext.2.
Likewise, in any of the sale deeds vide Exts.2 & 1 (on the basis of which, Ext.3 was prepared in favour of the plaintiff-society), there is no indication about the selling of any portion of Sabik Plot No.42. Rather, the 3 sale deeds in favour of the defendants vide Exts.E,F & G are clearly and unambiguously going to show that, they (defendants) have purchased Sabik plot No.42 corresponding to Hal suit plot Nos.24/503 and 23/622 under Hal Khata No.74/Kha from its owner Sridhar Suar, son of Gopal Suar.
When the plaintiff-society has not been able to establish its purchase any portion of Sabik plot No.42 corresponding to Hal Plot No.24/503 and 23/622 through any legally admissible evidence and when the sale deeds in favour of the defendants vide Exts.E,F and G are going Page 9 of 12 RSA No.8 of 2015 {{ 10 }} to show that, the defendants are the owners and they are in possession over Hal suit plot Nos.24/503 and 23/622 under Hal Khata No.74/Kha, then, at this juncture, the question of interfering with the aforesaid concurrent findings on facts arrived by the trial court as well as by the 1 st Appellate Court through this 2nd Appeal filed by the appellant does not arise.
On this aspect, the propositions of law have already been clarified by the Hon'ble Courts and the Apex Court in the ratio of the following decisions:
(i) 2010 (3) PLR 387 (P & H)--Tarsen Lal Vrs. D. Improvement Trust, Patiala--CPC, 1908--Section 100--High Court has no jurisdiction to interfere with the findings of the fact arrive at by Courts below, even if, the same are erroneous--Legislature never wanted Second Appeal to become a third trial on facts.
(ii) 2014 (Supp-I) OLR 429--Kasinath Nandi (dead), after him, his LRs. Tapan Kumar Nandi and others Vrs. Rudranarayan Mishra and others--(Paragraph 9)--CPC, 1908--Section 100-- Findings by Courts below being a finding of fact on proper appreciation of evidence, it cannot be interfered with in Second Appeal.
(iii) 2023 (3) Civil Court Cases 653 (Raj.)--Mahaveer & others Vrs. Omprakash--CPC, 1908--Section 100--Finding of fact recorded by the First Appellate Court after appreciation evidence not to be interfered with the said findings in the Second Appeal.
(iv) 2017 (I) Civil Court Cases 515 (Bombay)--Madhukar vrs. Smt. Nanda Madhukar Yene and another--CPC, 1908--Section 100--Second Appeal--Concurrent findings of fact by Trial Court and First Appellate Court considering evidence led by both the parties, when such findings are not perverse, the same cannot be interfered with in the Second Appeal.
(v) 2020 (I) Apex Court Judgments--C. Doddanarayana Reddy (dead) by Lrs. & others Vrs. C. Jayarama Reddy (dead) by Lr. & Page 10 of 12 RSA No.8 of 2015 {{ 11 }} others--CPC, 1908--Section 100--Second Appeal--Concurrent finding--Finding of fact cannot be interfered in the Second Appeal, unless the findings are perverse.
(vi) 2018 (6) ALD-2--M. Venugopal Vrs. Smt.M.B. Rama Tulasi--CPC, 100--Second Appeal--Re-appreciation of evidence-- High Court cannot re-appreciate the evidence and arrive at different conclusion--non re-appreciation of entire evidence is warranted in Second Appeal.
(vi) 2010 (3) Civil Court Cases page 800 (P & H)--Raj Kali Vrs. Jitender--CPC, 1908--Section 100--Second Appeal--High Court has no jurisdiction to interfere with the findings of fact, arrived at by the Courts below, even if the same are grossly erroneous.
(vii) AIR 1999 (S.C.) 2213--Kondiba Dagadu Kadam Vrs. Savitribai Sopan Gijar and others--CPC, 1908--Section 100-- Concurrent finding on facts howsoever erroneous--cannot be interfered with. On equitable ground no relief can be granted.
(viii) 2019 (I) MAH. LJ 183--Sabaji Dhabji Dhore Vrs. Baburao Raghuji Kare--CPC, 1908--Section 100--Second Appeal--Scope where there are concurrent findings of fact and there is no materials to show that, any vital evidence was ignored or that inadmissible evidence has been considered, there is no scope for interference with such findings in the Second Appeal.
(ix) 1996 (II) OLR 451--Bhagaban Behra Vrs. Dhiraj Kumar Sivjee and others & 1989 (3) SCC 287--Smt. Annapoorani Ammal Vrs. G. Thangapalam----(Paragraphs 7 & 8)--CPC, 1908-- Section 100--Scope of Interference--Concurrent findings rendered by the Trial Court and First Appellate Court. When reasoning of the First Appellate Court cannot be said to be wholly unacceptable or perverse. Because, the Trial Court and the First Appellate Court have considered the documentary evidence. When neither the findings are perverse nor it is a case of non-consideration of material evidence, in that situation the findings of the Trial Court and the First Appellate Court are not to be disturbed in the Second Appeal. As per the discussions and observations made above, when it is held that, the concurrent findings on facts after appreciation of evidence arrived by the trial court as well as by the 1 st Appellate Court in their Page 11 of 12 RSA No.8 of 2015 {{ 12 }} respective Judgments and Decrees that, the plaintiff-Society is not entitled for any relief in respect of Hal Suit Plot No.24/503 and 23/622 under Hal Khata No.74/Kha, then, at this juncture, by applying the propositions of law enunciated in the ratio of the aforesaid decisions, the question of interfering with the same through this 2nd appeal filed by the appellant (plaintiff) does not arise.
12. Therefore, the 2nd Appeal filed by the appellant (plaintiff) must fail.
13. In the result, the 2nd Appeal filed by the appellant (plaintiff) is dismissed on contest against the respondents, but without cost.
The Judgment and Decree passed by the trial court in the suit vide T.S. No.203 of 1998 are confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:06.04.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 06-Apr-2024 15:36:11 Page 12 of 12 RSA No.8 of 2015