Afr Tabun Bibi vs Supta Chatterjee & Others on 25 August, 2023

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Orissa High Court

Afr Tabun Bibi vs Supta Chatterjee & Others on 25 August, 2023

The present appeal is against the confirming judgment passed by learned District Judge, Baleswar on 21.04.2012 followed by decree in RSA No. 129 of 2009 whereby the judgment and decree passed by learned Civil Judge (Senior Division), Baleswar on 31.10.2009 followed by decree in C.S. Page 1 of 11 No. 739 by 2002-I was confirmed. The suit was filed by the plaintiff-appellant for declaration of title with consequential reliefs such as confirmation of possession with alternative prayer for recovery of possession and permanent injunction. Said suit was dismissed by the Trial Court.

2. The present appeal was admitted on the following substantial questions of law:

"(i) Whether the learned Courts below are justified in dismissing the suit holding, inter alia, that the suit is barred under Section 42 of the Orissa Survey and Settlement Act as well as Sections 64 and 65 of the Limitation Act?

(ii) Whether the finding of the learned lower appellate Court that the finding of the Assistant Settlement Officer cannot be set at not after lapse of 12 years is correct?"

3. The plaintiff's case, briefly stated is that her father, Sultan Khan purchased Ac 0.04 decimals of land from Sk. Samatulla, the original recorded tenant of C.S. Plot No. 622 under C.S. Khata No. 24 measuring Ac. 0.63 decimals. Said Sk. Samatulla orally gifted the remaining property (Ac. 0.059 decimals) to the plaintiff in presence of villagers, witnesses and relations. The plaintiff continued to possess such land Page 2 of 11 since then. Sultan Khan sold the said Ac. 0.04 dec. of land to Feluram Chatterjee and his wife Renubala, who in turn, sold the same land to one Durga Sankar Chatterjee, father of the present defendants, who are in possession. The plaintiff further claims that during major settlement, the area under the defendants was increased to Ac. 0. 054 dec. and by Ac. 0.014 dec. to the east of the plaintiff's land, which was not part and parcel of the land purchased by the father of the defendants but of C.S. Plot No. 507 belonging to her. Thus, alleging that the recording of the name of the defendants in M.S. ROR was wrong, illegal and claiming title and possession over their land, the plaintiff filed the suit.

4. The defendants' case is that the suit land is actually not part and parcel of C.S. Plot and Khata as mentioned in the plaint schedule but pertains to C.S. Plot No. 612 whereas the area of AC. 0.04 dec. belonging to the plaintiff pertains to Plot No. 622. It is further claimed that the defendants are in possession of Plot measuring Ac. 0.054 dec. for more than 30 years. They further challenged the maintainability of the suit on the ground of non-joinder of parties and estoppel as previously, the plaintiff's father had filed a suit against the Page 3 of 11 father of the defendants being O.S. No. 2940/8 wherein, he had admitted the possession of the defendants. The claim of the plaintiff regarding gift of the land in question as also title and possession was specifically disputed being barred by the law of limitation.

5. Basing on the rival pleadings, the Trial Court framed 8 issues of which the following two issues were held to be pertinent and therefore taken up for determination at the outset.

Issue No. 5 and 6

Issue No. 5 "Whether the plaintiff has got right, title, interest and possession over the suit land? Issue No. 6 "Whether the suit property is the part and parcel of C.S. Khata No. 24, C.S. Plots 272 & 507 corresponding to M.S. Khata No. 24. M.S. Plot No. 622?"

The Trial Court after considering the oral and documentary evidence in detail held that the plaintiff failed to prove that the suit land is part and parcel of C.S. Khata No. 24 and C.S. Plot No. 622 as described in the schedule and thus answered both the issues against her. The Trial Court further found that the M.S. ROR was prepared and published in the year 1986, but the suit was filed in the year 2002, that is, after 16 years to declare the entry in the ROR as wrong which Page 4 of 11 is barred by Section 42 of the Odisha Survey and Settlement Act. As regards the relief for declaration with possession or recovery of possession the Trial Court observed that the period of limitation is 12 years as per Article 65 and Articles 58 and 59 of the Indian Limitation Act. The suit was thus held to be barred by limitation. In view of the findings of the Trial Court on the pivotal issues, the suit was dismissed.

6. The plaintiff carried the matter in appeal and the learned District Judge framed the following the three points for determination:

"Firstly: whether the plaintiff has any locus standi to bring the suit or in other words whether plaintiff has any right over M.S.Plot No. 507?

Secondly: Is the suit maintainable?

Thirdly: Whether the suit is filed within the period of Limitation?"

7. The First Appellate Court disbelieved the plaintiff's claim of being gifted with land measuring Ac. 0.59 dec. by her father on 15.08.1976 taking note of the fact that in 1981 Sk. Samatulla was pursuing the litigation and had filed objection in the Rent Camp. Further, Sk. Samatulla did not file any appeal against the order of the Assistant Settlement Officer. The First Appellate Court further found that the ROR Page 5 of 11 was published in the year 1986 and that as per Section 42, a suit challenging the entries therein ought to have been filed within three years. It was also held that the suit was barred for not having been filed within 12 years of such recording as per Articles 64 and 65 of the Limitation Act. It was held that if the suit is held to be based on previous possession, the same is barred under Article 64 and if it is treated as based on title, it is barred under Article 65. On such findings the First Appellate Court concluded that there being a positive finding of the Settlement Authorities based on possession, such findings cannot be set aside by the Civil Court. The First Appeal was thus dismissed.

8. Heard Mr. S.K.Mishra, learned Senior Counsel with Ms. P.P. Mohanty, learned Counsel for the appellant-plaintiff and Mr. D.P.Mohanty, learned counsel for the respondent- defendants.

9. Assailing the impugned judgments rendered by both the Courts below, learned Senior Counsel Mr. Mishra would argue that Section 42 of the Odisha Survey and Settlement Act is not applicable as the suit was filed for declaration of title of the plaintiff and not for correction of the entries in Page 6 of 11 ROR per se. Further, both the Courts below were misdirected in reckoning the period of limitation from the date of publication of ROR without considering the date on which the cause of action arose. Mr. Mishra further contends that one of the witnesses examined by the defendants (D.W.1) admitted in his cross-examination that the suit property is part of C.S. Plot No. 622, which renders the finding of the Trial Court perverse. Mr Mishra further argues that the First Appellate Court has not discussed the evidence at all and the points framed by him for determination do not cover the lis in its entirety.

10. Mr. D.P. Mohanty learned counsel for respondent- defendants argued that the very basis of the claim of the plaintiff is the purported gift to her by her father on 15.08.1976, which the Trial Court found to be not proved by the evidence on record. On the question of limitation, Mr.Mohanty would argue that having regard to prayer No. 1 in the plaint, it is obvious that the cause of action is publication of Hal ROR on 28.03.1986 and therefore, Section 42 of the Odisha Survey and Settlement Act has full application. Even if the suit is considered to be a declaratory Page 7 of 11 one, then also the same having been filed beyond the period of 12 years, is barred by limitation as per Articles 64 and 65 of the Limitation Act.

11. The question of limitation having been raised and answered by both the Courts below and raised again before this Court, it is imperative to deal with it at the first instance, more so, as the second appeal itself was admitted on such question. It would be apposite in this context to refer to the plaint averments and the relief claimed therein. Relief No.1 under paragraph-7 (pleaded in Odia) is for a declaration of the plaintiff's right, title, interest and possession over schedule "GA" property as also to declare that M.S. ROR No. 507 is wrong and illegal. The other reliefs claimed are consequential in nature and therefore the maintainability of the suit would be relatable to Relief No. 1 as referred above.

12. Coming to the second part of the first Relief, it is that the declaration that MS ROR 507 is wrong and illegal inasmuch as the same stands recorded in the names of the defendants, the plaintiff's case is that said property was actually gifted to her by her father, Sk. Samatulla on 15.08.1976.

Page 8 of 11

Section 42 of the Odisha Survey and Settlement Act reads as follows:

"Limitation of jurisdiction of Civil Court. - [(1) No suit shall be brought in any Civil Court in respect of any order directing survey, preparation of record-of- rights or settlement of rent under this Act or in respect of publication, signing or attestation of any record thereunder or any part thereof :

Provided that any person aggrieved by any entry in or omission from any record finally published under Sections 6-C, 12-B or 23 in pursuance of Section 36 may, within three years from the date of such publication, institute a suit for relief in a Civil Court having jurisdiction.

(2) When such Court has passed final orders it shall notify the same to the Collector of the district and all such alterations as may be necessary to give effect to the orders of the said Court shall be made in the records published as aforesaid."

It is clear that a suit filed by a party aggrieved by any entry in or omission from any record finally published shall have to be filed within three years from the date of such publication. There is no dispute that the suit was filed on 08.10.2002 whereas the MS ROR was published in the year 1996. Thus, the suit was filed much beyond three years. Mr. Mishra learned Senior Counsel has argued that the prayer for declaration relating to MS ROR is incidental to the first part of the relief that is, declaration of right, title and interest of the plaintiff. This Court is unable to accept such contention because even though couched under one heading, the two Page 9 of 11 prayers so claimed are in fact distinct and separate and therefore, have to be considered on their own. This Court therefore, holds that the relief claimed to declare the MS ROR as wrong and illegal is barred by limitation.

13. As regards the relief regarding declaration of title, this Court finds that the claim of the plaintiff that she acquired title from her father through oral gift was negatived for want of evidence. This Court after going through the findings recorded by the Trial Court finds no infirmity therein so as to be persuaded to interfere. The plaintiff's claim is that she is not in a position to pray for recovery of possession, but has claimed declaration of title based on possession. If, according to her she came over the property from the date of the oral gift i.e. 15.06.1976, the suit for declaration based on possession ought to have been filed within 12 years from the date of dispossession both under Articles 64 or 65 of the Limitation Act. The plaintiff has described the cause of the action under paragraph 4 of the plaint as alleged wrong recording of MS ROR and alleged abuse and threat held out by the defendants to her on 01.08.2002. The Trial Court found no evidence being adduced in this regard. On the Page 10 of 11 contrary, it was found that it cannot be held that the plaintiff is the owner in possession of the suit property. In view of the forgoing discussion, this Court is also of the same view. As to the so-called admission made by the defendant No. 1 in her evidence that the suit property corresponds to C.S. Plot No. 642, in view of the findings that the very basis of the suit being non-existent, such admission, if at all can have no consequence.

14. For the foregoing reasons therefore, this Court is of the considered view that both the Courts below have committed no illegality in rejecting the claim of the plaintiff. Even on an independent assessment, this Court has arrived at the same conclusion as the Courts below. Thus, this Court finds no justified reason to interfere with the impugned judgments.

15. In the result, the appeal is found to be devoid of merit and is therefore, dismissed but in the circumstances without any cost.

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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 25th August, 2023/ Deepak, Jr. Steno Page 11 of 11

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