Orissa High Court
Raj Kishore Dash And Others vs Bahuda Bhoi on 1 November, 2016
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA: CUTTACK.
SECOND APPEAL NO.35 of 2002
From the judgment and decree dated 13.9.2001 and 27.9.2001
respectively passed by the learned Civil Judge (Sr.Divn.), Puri in Title
Appeal No. 11/67 of 1995/1993.
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Raj Kishore Dash and others ...... Appellants
- Versus-
Bahuda Bhoi ...... Respondent
For Appellants : M/s. B.S.Tripathy, M.K.Rath,
P.K.Barik and J.Pati,
advocates
For Respondent : M/s. N.C.Pati, A.K.Das and B.Das,
advocates
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PRESENT:
THE HONOURABLE SHRI JUSTICE D.DASH
Date of hearing- 01.08.2016 : Date of judgment- 01.11.2016
1. The present second appeal arises out of the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Puri in T.A. No. 11/67 of 1995/93 confirming the judgment and decree passed by the learned Munsif, Puri in T.S. No. 221 of 1989 in dismissing the suit filed by the appellants as the plaintiffs against the respondent-defendant seeking the relief of declaration of right, title and interest over the suit land alternatively for recovery of possession in case found to have been 2 dispossessed and also for declaration that the record of right published in the consolidation operation has been done by practising fraud and thus is without jurisdiction.
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 trial court.
3. Case of the plaintiffs is that the house with coconut trees around situated over the suit land originally belonged to one Madhusudan Das who had sold the same to the grandfather of plaintiff nos. 1 to 3 and the father-in-law of plaintiff orally for a consideration of Rs.40/- in the year 1945. So from the time of purchase, the suit land has been in possession of the grandfather of above plaintiffs and then coming to be possessed by their father Janardhan, subsequently by the plaintiffs. It is said that in an amicable partition amongst Janardan and his brothers in the year 1962, the property had been allotted to Janardan. Thus the possession is claimed as its owner and continuously since the time of oral purchase without any interruption.
During the preliminary stage of settlement operation, the suit land was recorded in the name of plaintiffs' father But subsequently at the later stage, as the plaintiffs did not remain vigilant, the same has been surreptiously recorded in the name of defendant's father. In the 3 consolidation operation, similarly during initial stage, the parcha slips are said to have been granted to the plaintiffs indicating their possession over the suit land. It is next stated that the defendant though initiated one proceeding under Orissa Land Reforms Act i.e. OLR Case No. 262/87, the same stood dismissed. So when thereafter they attempted to dispossess the plaintiffs, the suit has been filed stating that the defendant has absolutely no right, title and interest over the suit land and also not in his possession.
4. The defendant in his written statement has averred to be in continuous possession of the suit land since time of his father who had constructed their residential house over there and had planted the coconut trees. This possession is said to be to the knowledge of the plaintiffs and others of the locality. Accordingly, it is stated that the Settlement Authority as well as the Consolidation Authority have rightly recorded the suit land in his name overruling the plaintiffs objections and declining their claim. It is stated that as he filed an appeal questioning the legality of order passed in OLR Case no. 262/87, the plaintiffs being apprehensive that the result may go against them, filed the suit. He has also raised the objection as to the jurisdiction of Civil Court being barred under section 67 of OLR Act as also for applicability of the provision under section 11 of the Code of Civil Procedure standing 4 as the legal hurdle to set aside the record of right published in the consolidation operation.
5. Faced with the above rival pleadings, the trial court framed 11 issues and as it appears has rightly taken up issue nos. 3, 4, 5 and 6 together for decision as those concern with the plaintiffs claim of right, title and interest over the suit land as also the challenge to the jurisdiction in deciding the same.
6. Upon examination of evidence both oral and documentary, the trial court has recorded the following findings:-
(i) the plaintiffs have got no right, title, interest in the suit property,
(ii) the plaintiffs have not been in possession over the suit property within the period of limitation of 12 years from the date of the suit, and
(iii) the consolidation ROR in respect of the suit property is not fraudulent and the consolidation authority has the jurisdiction to record the suit property in favour of the defendant.
The other objection relating to jurisdiction as raised by the defendant has been repelled. However, in view of the findings that the plaintiffs have no right, title and interest as also having failed to prove to 5 be in possession within twelve years next before the suit, the suit has been held to be barred by limitation.
7. The unsuccessful plaintiffs in the first appeal called in question all those findings on issue nos. 3,4,5 and 9.
The lower appellate court rejected the contention that a finding in favour of oral sale be recorded as claimed by the plaintiffs stating that the note of possession of Madhusudan in the ROR of 1928 is of no avail for the purpose. The next contention regarding non- consideration of draft-ROR (Ext.2) and rent receipts (Ext.4 and 4/9) in support of the plaintiffs case of possession has not found favour with. The third contention that there ought to have been a finding that the consolidation ROR has been obtained fraudulently has also been rejected. The other objections relating to non-consideration of orders in OLR Case (Exts.3 and 5) etc. have been turned down. As aforesaid, the findings of the trial court being thus affirmed, the judgment and decree passed by the trial court have withstood the tests as put through.
8. This second appeal has been admitted on the following substantial questions of law:-
"i) Whether the finding on oral sale has been correctly decided?6
ii) Whether the provisions of Section 31 (1) of the Orissa Tenancy Act are attracted in the present case?
iii) Whether the findings relating to Ext.2, Ext.4 and Ext.7 of the learned court s below are in conformity with law?
iv) Whether the civil court has jurisdiction to declare that the consolidation ROR (Ext.7) is void when the entry in the Consolidation ROR having not been disturbed by the machinery provided under the Consolidation Act.?"
9. Learned counsel for the appellants contends that the overwhelming evidence on record with regard to oral sale of the suit property by the ex-intermidiary, Madhusudan Das to Jagannath Das, the grandfather of the plaintiffs when further find support from note of possession in the ROR of the year 1928 as also in the deed of partition, the courts below have erred both in fact and law by not recording that finding in favour of the plaintiffs. According to him, the oral sale for the involvement of consideration of Rs.40/- is not illegal since it was accompanied by delivery of possession.
He next contends that the provision of section 31 (1) of Orissa Tenancy Act, squarely applies to the cases of occupancy holding which ought to have been duly considered by the courts below finding support from the documents under Exts. 2, 4 and 7.
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He also submits that the plaintiffs having proved their title over the suit land, in the absence of proof of acquisition of title by adverse possession by the defendants, the finding that the suit is barred by limitation as the plaintiffs have not proved their possession within 12 years next before the suit is clearly unsustainable as it is a case based on title and according to him the courts below have failed to take note of the most important changes made in enacting Articles 64 and 65 of Limitation Act, 1963 corresponding to the old articles standing in repealed Act of 1908.
10. Learned counsel for the respondent supporting the findings of the courts below contends that those are not liable to be disturbed being based on just and proper appreciation of evidence keeping in view the settled position of law.
11. The plaintiffs suit is based upon their claim of right, title and interest over the suit property. They also claim to be in possession as such and have filed the suit in apprehension of their dispossession in the hands of the defendant and for that only there has been the alternative prayer for recovery of possession in case of dispossession in the meantime which is merely to give a show of possession. Thus here the plaintiffs are to establish their title over the property first no matter, the defendant fails to prove his case. The plaintiffs have to stand on 8 their own and the failure or defect of the defendant on that score has no role to play.
12. It is the plaintiff's case that their grandfather had orally purchased the property in the year 1945 from Madhusudan. Admittedly, since then no step has been taken to get the suit land recorded accordingly in the record of right. Neither it was ever been so attempted by Jagannath, the grandfather of the plaintiffs, or by plaintiffs father namely Janardan, or by them. In the absence of such evidence, the oral purchase as projected is not deriving any support from the documents. No document showing payment of rent during those olden days has been proved. The witnesses P.Ws.1 to 4 are not the witnesses to the transaction nor to the delivery of possession in the field which is the most vital aspect for acceptance of such oral sale. They simply state about possession of the suit land to be remaining with the plaintiffs since the time of their grandfather.
13. For establishment of oral sale, the most vital aspect remains the delivery of possession of the immovable property which practically evidences the parting of right by the vendor to the vendee in one way expressing the intention to sale the same. This has not been proved in the case. The note of possession in the ROR of the year 1928 even 9 though accepted for a moment as correct, the same by no stretch of imagination can be said to be pursuant to the oral sale.
14. Even this transaction in the particular case has no legal sanctity holding for a moment that the oral sale had been made by Jagannath for the reason that it being occupancy holding as provided under section 31 (1) of Orissa Tenancy Act, the sale had to be through registered instrument and not otherwise, irrespective of value of the property which is a sort of protection and more-so when it begins with an non-obstante clause that "notwithstanding the provisions of section 54 of the T.P.Act, every transfer of an occupancy holding irrespective of the value is compulsorily registerable". In the instant case, as per plaintiffs own case, the suit property formed a part of intermediary estate where Madhusudan and others had acquired occupancy status. Moreover, when sale is said to have been by Madhusudan alone, other tenants being also there on record, the same stands against the claim of exclusive right of alienation by Madhusudan and as regards the transfer of right over the entire suit property.
This being the state of affair in evidence, the courts below having held the plaintiffs to have failed to prove their title over the property in question by oral purchase, this Court finds no such flaw with the same either on fact or in law.
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15. Now coming to the factum of possession of the suit land by the plaintiffs, the courts below have recorded the finding against the plaintiffs after analysis of evidence let in by the parties and by their detail discussion as to how those are not acceptable so as to record a finding by preponderance on probability. The draft parcha, Ext.2 in the early stage of the settlement though had been issued in favour of the father of plaintiffs, yet it has been overruled later as has been found to be not correct by specific order to that effect in the Objection Case No. 1882/72 (Ext.D and Ext. 8). This ROR although has been in the name of Jaga Bhoi yet it cannot be said to be taken to be based on open, continuous and uninterrupted possession for long period. However, the presumption therefrom arises only about the physical possession of the suit land during that time by the recorded tenant. The consolidation ROR is in the name of the defendant and that has remained unchallenged till the suit wherein it is questioned to be the outcome of fraud.
The courts below with detail discussion of evidence have held the consolidation ROR to have not been fraudulently obtained since the plaintiff has been found to have utterly failed to establish the same. This being the position, the bar under section 14 of the OCH & PFL Act squarely applies attracting the principle of constructive res judicata that 11 the objection although was available to be raised being not raised is no more permissible in law to be raised now for being adjudicated and that ROR is no more open to challenge in a suit between the parties raising competing claim over again.
In the upshot of the aforesaid discussion, the dismissal of the suit as ordered by the courts below is upheld and the substantial questions of law stand accordingly answered against the appellants.
16. In the result, the appeal stands dismissed.
However, in the peculiar facts and circumstances, the parties are directed to bear their respective cost throughout.
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D.Dash, J.
Orissa High Court, Cuttack, Dated the , 01st day of November, 2016/Aswini