Orissa High Court
Pruthiraj Parida & Another vs Artabandhu Swain on 23 April, 2021
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO.39 OF 2020
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment dated 24.12.2019 passed by the
learned Additional District Judge, Bhubaneswar in R.F.A. No.6 of 2019
confirming the judgment and decree dated 20.12.2018 and 16.02.2019
respectively passed by the learned Civil Judge (Jr. Division),
Bhubaneswar, in C.S. No.13 of 2015.
.........
Pruthiraj Parida & Another :::: Appellants.
-:: VERSUS ::-
Artabandhu Swain :::: Respondent.
Advocate(s) who appeared in this case by Video Conferencing Mode:-
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For Appellants :::: M/s. Sushant Kumar Joshi,
S. Behera, B.R. Tripathy
& S. Sahoo, Advocates..
For Respondent :::: Mr. Biswajit Kanungo
(Caveator)
.........
PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
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Date of Hearing :: 05.04.2021 :: Date of Judgment: 23.04.2021
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D.Dash,J The Appellants, by filing this appeal under section 100 of
the Code of Civil Procedure (for short 'the code') seek to assail the
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judgment and decree passed by the learned Additional District Judge,
Bhubaneswar in R.F.A. No.6 of 2019.
By the said judgment, the First Appellate Court has
confirmed the judgment and decree passed by the Trial Court in
decreeing the suit filed by the Respondent as the Plaintiff.
2. 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 Suit.
3. The case of the plaintiffs is that the land in question stands
recorded in his name as also in the name of one Madhusudan Swain. It
is their ancestral property. On 03.07.1989, he purchased the share of
Madhusudan Swain from the suit plot by registered sale deed. He then
wanted to mortgage the property to an extent of Ac.0.90.5 decimal in
order to obtain money to meet his legal necessity. It is stated that the
Defendant Nos.1 and 2 with an intention to grab the suit land rightly
agreed to take the property in mortgage. Accordingly, the Plaintiff put
his signature on a document in the Sub-Registrar Office and it is stated
that he had received a sum of Rs.2,500/- from the father of the
Defendant Nos.1 and 2 on 12.12.1990. At that time,the Plaintiff could
not know that a sale deed has been created given with the impression as
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to be bringing a deed of mortgage in to being. It is next challenged that
the suit plots being 'Chakas' are not partiable and as such the sale deed
being in contravention of the provision of section 34 of the Orissa
Consolidation of Holdings and Prevention of Fragmentation of Land
Act, 1972 (hereinafter called as the 'OCH&PFL Act') is void. In view
of the illegal action of the Defendants in encroaching upon the suit land
as well as the denial by the Authority to receive the land revenue from
the Plaintiff, the Suit was filed.
4. The Defendants admit that the land in question stood
recorded jointly in the name of the Plaintiff and Madhusudan Swain and
was so reflected in the record of right published on 27.07.1984. It is
stated that after purchasing Madhusudan's share, the Plaintiff became
absolute owner of the suit land and he sold an area Ac.0.100 decimal
from out of the total area Ac.0.190 decimal to them by registered sale
deed dated 12.12.1990 on receipt of agreed consideration and had also
delivered possession. It is their case that the original sale deed had been
taken by the Plaintiff at the time of filing of the mutation appeal, which
he did not return thereafter. It is stated that the Defendants mutated their
purchased land in their name but the same has been for the entire land. It
is further stated that on 02.04.2012, the Plaintiff again offered the
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Defendants to purchase the rest part of the suit plot as he wanted to meet
the urgent need for the engagement of his daughter. Then the mortgage
deed was executed instead of sale deed for a consideration of
Rs.20,000/- and possession of the land was delivered to the Defendants.
It was at that time agreed that the sale deed would be executed later
which has not been done as yet.
The Trial Court declared the sale deed dated 12.12.1990 as
void. The Suit was accordingly decreed. The Defendants having carried
an Appeal under section 96 of the Code, have failed.
5. Learned counsel for the Appellants (Defendants) in the
absence of any mention in the Memorandum of Appeal as to the
substantial questions of law involved in the case for being answered in
the Appeal as required under the law submitted that the courts below
have committed grave error in recording the finding, i.e., the sale deed
in question (Ext.3) as void simply saying that the same contravenes the
provision of section 34 and 35 of the OCH&PFL Act. This according to
him is the substantial question of law that arises in the case to be
answered in the Appeal. He, therefore, urges for admission of the
Appeal.
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6. Section 35 of the OCH&PFL Act declares the transfer in
contravention of provision of section 34 of the Act as void. Section 34
of the Act prohibits the fragmentation of the land except to a land owner
of contiguous Chaka. The 'fragment' stands defined in section 2(m) of
the Act. Both the Courts below on appreciation of evidence have
concurrently found that the Defendants have not taken possession of the
land said to have been involved in the transaction. This being a pure
finding of fact and as nothing is shown that the Courts below have either
overlooked some important evidence for being taken note of for arriving
at said conclusion or that some extraneous have been read into evidence,
which if would have been properly done, the finding would have been
otherwise. This Court being not able to find any such perversity therein,
thus accepts the same. Keeping in view the provision of sections 34 &
35 read with section 2(m) of the OCH&PFL Act as also the transaction
in question concerning the land involved therein, the Courts below are
found to have rightly decreed the suit.
7. In the wake of aforesaid, this Court is not in a position to
accept the submission of the learned counsel for the Appellants
(Defendants) that any substantial question of law is involved in the case
for being answered in this Appeal, meriting its admission.
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8. Accordingly, the Appeal stands dismissed. No order as to
costs.
As the restrictions due to resurgence of COVID-19
situation are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at par with
certified copy, subject to attestation by the concerned advocate, in the
manner prescribed, vide Court's Notice No.4587, dated 25th March,
2020 as modified by Court's Notice No.4798 dated 15th April, 2021.
...................
D. Dash, J.
Orissa High Court, Cuttack Date 23rd April, 2021/ Himansu