Orissa High Court
Chakradhar Mohanty And Another vs Daitari Sahoo on 29 November, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.69 of 1989
From the judgment and decree dated 29.11.1988 and 12.12.1988
respectively passed by Sri K.V.C. Rao, learned Subordinate Judge,
Jagatsinghpur in Title Appeal No.23 of 1986 reversing the judgment and
decree dated 29.9.1986 and 25.10.1986 respectively passed by Sri B.K.
Mishra, learned Addl. Munsif, Jagatsinghpur in Title Suit No.153 of 1983.
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Chakradhar Mohanty & another .... Appellants
Versus
Daitari Sahoo .... Respondent
For Appellants ... Mr.P.K. Das, Adv.
For Respondent ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 27.11.2017 : Date of judgment: 29.11.2017
Dr. A.K.Rath, J Defendants are the appellants against a reversing
judgment.
2. Plaintiff-respondent instituted T.S. No.153 of 1983 in the
court of learned Addl. Munsif, Jagatsinghpur for permanent
injunction. Case of the plaintiff was that the suit schedule land was
recorded in his name in the settlement ROR published on
12.02.1979. The consolidation ROR had been published in his name.
The defendants, who have no semblance of right, title and interest, disturbed in his possession.
3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants was that the suit land was recorded in the name of Paramananda Mohanty and others. In the family partition of the year 2 1942, the suit land fell to the share of Paramananda Mohanty, father of defendant no.1. They are in occupation of the same. The plaintiff purchased the suit land from Rabindra Sahoo and others by means of a registered sale deed dated 3.9.1961. On the strength of illegal sale deed, the plaintiff tried to take possession of the suit land. The plaintiff is not in possession of the suit land.
4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court came to hold that Apatri Sahoo, sikkim tenant died prior to the year 1946. After his death, the suit land was resumed by defendants. Held so, it dismissed the suit. Plaintiff filed Title Appeal No.23 of 1986 in the court of learned Subordinate Judge, Jagatsinghpur. The same was allowed.
5. The second appeal was admitted on the following substantial question of law.
"Whether the requirements under Section 38 of the Specific Relief Act have been satisfied on the facts and circumstances of this case ?"
6. Heard Mr. P.K. Das, learned counsel on behalf of Mr. Anup Kumar Bose, learned counsel for the appellants. None appeared for the respondent.
7. Mr. Das, learned counsel for the appellant submitted that the suit land was recorded in the name of Paramananda Mohanty and others. Apatri Sahoo was a sikkim tenant. He died in the year 1940. The property was resumed by the predecessors of the defendants. The defendants are in possession of the suit land. Alienation made by Pitei Bewa, widow of Bhaskar Sahoo, in favour of the plaintiff is illegal. The suit for permanent injunction simpliciter is not maintainable.
38. The suit land was recorded in the name of Paramananda Mohanty and others in the settlement ROR published in the year 1931. Apatri Sahoo was the sikkim tenant. The plaintiff asserts that after death of Aparti Sahoo, the suit land was in possession of his grand son Bhaskar Sahoo. He purchased the suit land from Pitei Bewa widow of Bhaskar by means of a registered sale deed dated 3.7.1961. He is in possession of the suit land. The settlement as well as consolidation ROR has been published in his name. The defendants assert that the sikkim right of Apatri Sahoo had been extinguished after his death in the year 1940. Their predecessors were in possession of the suit land. The suit land was allotted to defendant no.1's father. Learned trial court came to hold that Apatri Sahoo died in the year 1941 and as such, sikkim tenant had no right to transfer his interest in respect of any holding under Sec. 236 of the Orissa Tenancy Act prior to 1946. On a thread bare analysis of the evidence on record and pleadings, learned appellate court came to hold that Apatri Sahoo died either in the year 1956 or 1958. Thus the father of the plaintiff had right to alienate the land. Sufficiency or insufficiency of evidence is for the first appellate court. There is no perversity in the findings of the learned appellate court. Learned appellate court rightly held that the vendor of the plaintiff had right to alienate the land. The suit land was recorded in the name of the plaintiff in the settlement ROR. The consolidation ROR had already been published in the name of plaintiff. The plaintiff is in possession of the suit schedule land.
9. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033, the apex court held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is 4 not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
10. There is no dispute with regard to title of the suit land. Thus the simple suit for permanent injunction is maintainable. The substantial question of law is answered accordingly.
11. Resultantly the appeal fails and is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 29th November, 2017/Pradeep