Orissa High Court
Narasingha Naik (Dead) & Others vs Janakram Behera (Dead) & Others on 13 March, 2024
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.238 of 1991
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Narasingha Naik (dead) & Others .... Appellants
-versus-
Janakram Behera (dead) & Others .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. S. Pattnaik, Advocate.
For Respondents - Mr. D. Panigrahi, Advocate.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :30.01.2024:: Date of Judgment :13.03.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the reversing Judgment.
2. The appellants of this 2nd Appeal were the plaintiffs before the trial court in the suit vide T.S. No.25 of 1986 and they were the respondents before the 1st Appellate Court in the 1st Appeal vide T.A. No.7 of 1990.
The predecessors of the respondents of this 2nd Appeal i.e. Janakram Behera was the sole defendant before the trial court in the suit vide T.S. No.25 of 1986 and he was the appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.7 of 1990.
Page 1 of 16SA No.238 of 1991
{{ 2 }} The suit of the plaintiffs vide T.S. No.25 of 1986 before the Trial Court was suit for declaration and recovery of possession.
3. The properties described in Schedule "A" of the plaint situated in village Kirei pertaining to Sabik Plot No.165 under Khata No.8 Ac.0.07 decimals, which corresponds to Hal Plot No.969 under Hal Khata No.102 are the suit properties.
The case of the plaintiffs in the suit vide T.S. No.25 of 1986 was that, defendant is a permanent resident of village Kirei. Surya Kumar Singh and his brothers were the original owners of the suit Sabik Plot No.165 Ac.2.43 decimals under Sabik Khata No.8. As per the partition between Surya Kumar Singh and his brothers, the suit properties had fallen into the share of Surya Kumar Singh, wherein Surya Kumar Singh being the exclusive owner, he was possessing and cultivating Rabi crops. That Surya Kumar Singh sold the suit properties to the plaintiff No.1 through registered sale deed dated 30.09.1978 for a consideration of Rs.200/- and delivered possession thereof to plaintiff No.1. The suit properties are situated by the side of Sundergarh-Jharsuguda main road in the village Kirei.
The defendant started a betel shop by the side of the road in front of the suit properties by installing a GUMUTI (CABIN) as per the permission of the plaintiff No.1. But, surprisingly, on 02.12.1982, the Page 2 of 16 SA No.238 of 1991 {{ 3 }} defendant constructed a hut encroaching some portion of the suit properties of the plaintiff No.1, to which, the plaintiff objected. Therefore, a proceeding under Section 144 of the Cr.P.C. was initiated between the plaintiffs and defendant and the said proceeding was converted to a proceeding under Section 145 of the Cr.P.C. In that proceeding under Section 145 of the Cr.P.C., the defendant falsely claimed his long possession over the suit properties on the basis of illegal noting of his possession in the remarks column of the suit Hal Plot No.969 and he (defendant) also claimed that, the suit plot No.969 is a part of Sabik Plot No.116 but not the part of Sabik Plot No.165.
Sabik Plot No.116 corresponds to Hal Plot No.970. In that proceeding under Section 145 of the Cr.P.C, the possession of the defendant over the suit properties was illegally declared by the Executive Magistrate as per its Order dated 07.08.1986. The defendant had not constructed any hut on any portion of the suit properties prior to 1982. But, on the basis of the order passed in the proceeding under Section 145 of the Cr.P.C in favour of the defendant, he (defendant) approached the Local Tahsildar, Sundargarh, for mutation of the suit properties into his name, but the said application for mutation of the defendant was rejected on the objection of the plaintiffs.
Page 3 of 16 SA No.238 of 1991
{{ 4 }} As, in the final order dated 07.08.1986, the Executive Magistrate had erroneously declared the possession of the defendant over the suit properties, for which, the plaintiffs approached the civil court by filing the suit vide T.S. No.25 of 1986 against the defendant praying for declaration of their right, title, interest and possession over the suit properties and also for recovery of possession of the suit properties from the defendant.
4. Having been noticed from the Trial Court in the suit of the plaintiff vide T.S. No.25 of 1986, the defendant contested the same by filing written statement taking his stands inter alia therein that:
The Tahsildar was competent court under OLR Act and the Tahsildar has settled the suit land in his favour, for which, the Civil Court is not competent to decide the matter, which has already been settled under the OLR Act. Because, the defendant was a landless person having no house or house site, for which, he was occupying the suit site in which, he has constructed a house since long and in that house, he is residing. The further case of the defendant was that, there was no partition of the suit properties between Surya Kumar Singh and his co- sharers. He (defendant) has been residing in the suit properties for more than 20 to 30 years. He (defendant) has not taken any permission from the plaintiff No.1 for installation of the Gumti (CABIN) in the suit Page 4 of 16 SA No.238 of 1991 {{ 5 }} properties. The area shown in the so-called sale deed dated 30.07.1978 said to have been purchased the suit properties by the plaintiff No.1 from Surya Kumar Singh are imaginary and false. He (defendant) is in possession over Ac.0.12 decimals of land recorded in Hal Khata No.102 and after making due enquiry, the local Tahsildar has passed an order for settlement of the suit properties in his favour as per Section 9(1) of the OLR Act vide Order dated 11.08.1986. The plaintiff has preferred an appeal against that order. Hal Plot No.969 corresponds only to a portion of Sabik Plot No.165. As per Amin report in Mutation Case No.65 of 1982, suit Sabik Plot No.165 corresponds to Hal Plot No.968/1. Hal Plot No.969 corresponds to Sabik Plot No.116. So, the Executive Magistrate has correctly declared the possession of the defendant over suit Hal Plot No.969 for a total area of Ac.0.12 decimals. The plaintiffs have no right, title, interest and possession over the suit properties. For which, the plaintiffs have no cause of action to file the suit against him (defendant). Therefore, the suit of the plaintiff is not maintainable. The same is liable to be dismissed against him (defendant) with cost.
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.25 of 1986 and the said issues are: Page 5 of 16 SA No.238 of 1991
{{ 6 }} ISSUES
1. Whether the suit is maintainable in its present form?
2. Is there any cause of action for the suit?
3. Whether the suit is barred by law of limitation?
4. Whether the suit is bad for non-joinder of parties?
5. Whether the defendant is a landless person and is in possession of the suit land since long and thereby he has acquired title by way of adverse possession?
6. To what relief, if any, the plaintiffs are entitled to get?
6. In order to substantiate the aforesaid reliefs sought for by the plaintiffs in their favour against the defendant in the suit, they (plaintiffs) examined altogether 4 numbers of witnesses from their side including the plaintiff No.1 as P.W.1 and the original owner of the suit properties i.e. Surya Kumar Singh as (P.W.2) and relied upon series of documents vide Exts.1 to 7.
But, on the contrary, in order to nullify/defeat the suit of the plaintiff, he (defendant) examined 3 witnesses from his side including him as (D.W.1) and relied upon several documents vide Ext.A to S.
7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiffs and against the defendant and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiffs and against the defendant, the trial court decreed the suit of the plaintiff vide T.S. No.25 of 1986 on contest Page 6 of 16 SA No.238 of 1991 {{ 7 }} without cost against the defendant as per its Judgment and Decree dated 16.12.1989 and 22.12.1989 respectively and declared the right, title and interest of the plaintiffs over the Schedule "A" suit properties of the plaint and also declared that, the plaintiffs are entitled to recover the suit properties from the defendant and accordingly, directed the defendant to deliver the vacant possession of the suit land to the plaintiffs within 2 months, failing which, the plaintiffs shall recover the same from the defendant through court assigning the reasons in the Judgment and decree that, the suit properties were originally belonged to Surya Kumar Singh. The said Surya Kumar Singh sold the suit properties to the plaintiff No.1 by executing and registering the sale deed dated 30.09.1978 and delivered possession thereof to the plaintiff No.1, for which, the defendant has no right, title and interest over the suit properties and the plaintiffs being the owners of the suit properties, they have right to possess the same and as the defendant has occupied the suit properties illegally, for which, the defendant is liable to deliver the vacant possession of the suit properties to the plaintiffs and the plaintiffs are entitled to recover the possession of the suit properties from the defendant.
8. On being dissatisfied with the aforesaid Judgment and Decree dated 16.12.1989 and 22.12.1989 respectively passed by the trial court in the suit vide T.S. No.25 of 1986 in favour of the plaintiffs and against the Page 7 of 16 SA No.238 of 1991 {{ 8 }} defendant, he (defendant) challenged the same by preferring the 1 st Appeal vide T.A. No.7 of 1990 being the appellant against the plaintiffs by arraying them (plaintiffs) as respondents.
After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal of the defendant vide T.A. No.7 of 1990 on contest against the plaintiffs (respondents) and set aside the Judgment and Decree of the trial court passed in T.S. No.25 of 1986 in favour of the plaintiffs as per its Judgment and Decree dated 20.08.1991 and 28.08.1991 respectively assigning the reasons that, the suit properties were originally belonged to, the then Raja Saheb, Shri Biramitra Sekhar Deo, Minor Chief of Gangapur State, recorded as public road. After abolition of Jamidari system, it might have been vested to the State of Orissa and there is no averment in the plaint on behalf of the plaintiffs how the suit properties came to the hands of the Singh families after abolition of the Jamidari system. Therefore, the State is the necessary party in the suit. For which, in absence of the State, the suit of the plaintiffs was not maintainable. That apart, the suit of the plaintiffs is bad for improper description of the suit properties. On that ground also the suit of the plaintiffs must fail.
That apart, the suit of the plaintiffs is for Ac.0.07 decimals appertaining to Sabik Plot No.165/2 under Sabik Khata No.8. But, the Executive Magistrate has declared the possession of the defendant in a Page 8 of 16 SA No.238 of 1991 {{ 9 }} criminal proceeding under Section 145 of the Cr.P.C. vide Criminal Misc. Case No.1/3 of 1983 in respect of Ac.0.12 decimals of land in favour of the 2nd Party thereof i.e. in favour of the defendant on 07.08.1986. But, as the plaintiffs have claimed only Ac.0.07 decimals land out of Ac.0.12 decimals, for which, the plaintiffs have no right, title, interest and possession in respect of the remaining Ac.0.05 decimals of land. Therefore, the plaintiffs have no cause of action for the rest Ac.0.05 decimals of land. So, the suit of the plaintiffs was defective for non- description of proper identification of the suit properties and lack of cause of action. For which, the Judgment and decree passed by the trial court in favour of the plaintiffs in respect of the suit properties cannot be sustainable under law.
9. On being aggrieved with the aforesaid Judgment and Decree dated 20.08.1991 and 28.08.1991 respectively passed by the 1st Appellate Court in T.A. No.7 of 1990 in favour of the defendant and against the plaintiffs in setting aside the Judgment and Decree passed by the trial court in T.S. No.25 of 1986, they (plaintiffs) challenged the same by preferring this 2nd Appeal being the appellants against the defendant by arraying him (defendant) as respondent. As the respondent (defendant) Janakram Behera expired during the pendency of the 2nd Appeal, for which, in his place, his legal heirs have been substituted as respondents. Page 9 of 16 SA No.238 of 1991
{{ 10 }} This 2nd Appeal was admitted on formulation of the following substantial question of law i.e.
1. When both plaintiff and defendant proceed with the suit on the basis that the plot to which the disputed land belongs is of Surya then, whether non-impletion of State Government would defeat the suit?
10. I have already heard from the learned counsels for the appellants (plaintiffs) and respondents (defendants).
11. The defendant (as D.W.1) has deposed in Para No.4 of his deposition before the trial court in the suit vide T.S. No.25 of 1986 stating that, "Hal Plot No.969 stands recorded in the name of Surya Kumar Singh. The Hal Suit Plot No.969 extends to an area of Ac.0.12 decimals in Hal R.o.R under Hal Khata No.102. He has no claim over Sabik Plot No.165. Sabik Plot No.165 might have been partitioned between Surya Kumar Singh and his brothers. Sabik Plot No.165 has been recorded in the name of Surya Kumar Singh and others. He has never possessed any land of either Surya Kumar Singh or his co-sharers. Surya Kumar Singh and his brothers were possessing Sabik Plot No.165. He has never possessed in any time to the same. He has deposed in the proceeding under Section 145 of the Cr.P.C, relating to Khata No.116 of Sabik Settlement and he had stated that, he had claimed over Sabik Plot No.165. He had filed written statement in the proceeding under Section Page 10 of 16 SA No.238 of 1991 {{ 11 }} 145 Cr.P.C. by stating that, the disputed land relates to Hal Plot No.969 under Khata No.102 corresponds to Sabik Plot No.116 under Khata No.8."
It is the concurrent finding of the trial court as well as the 1 st Appellate Court in their respective Judgments and Decrees that, in Sabik Settlement, the suit properties were recorded in the name of Udayanath Singh and after his death, in the Hal Settlement in the name of Surya Kumar Singh along with his brothers jointly under Hal Khata No.102.
The trial court has passed the Judgment and decree of the suit declaring the right, title and interest of the plaintiffs over the suit properties on the basis of their purchase from Surya Kumar Singh as per the registered sale deed dated 30.09.1978 vide Ext.3 in favour of the plaintiff No.1, to which, the 1st Appellate Court has reversed on the ground of lack of averments in the pleadings of the plaintiffs, how the suit properties came to the hands of Udayanath Singh after abolition of the Jamidari system i.e. after vesting of the suit properties to the Government due to abolition of the Jamidari system, then, at this juncture, the above findings of the 1st Appellate Court reversing the Judgment and Decree of the Trial Court on the ground of lack of averments in the pleadings, how the suit properties came to the hands of Udayanath Singh for the recording of the same in Sabik Settlement in his name cannot be Page 11 of 16 SA No.238 of 1991 {{ 12 }} sustainable under law. Because, both the parties have admitted to the title of Surya Kumar Singh over the suit properties in their respective pleadings and evidence and when both the courts i.e. trial court and the 1 st Appellate Court have given concurrent findings about the recording of the suit properties in favour of Surya Kumar Singh and when the vendor of the plaintiff No.1 i.e. Surya Kumar Singh has adduced evidence as P.W.2 on behalf of the plaintiffs specifically stating about the alienation of the suit properties by him to the plaintiff No.1 through Registered sale deed dated 30.09.1978 vide Ext.3, then, the aforesaid evidence of the parties/witnesses does not require any further proof about the ownership of Surya Kumar Singh over the suit properties. Because, it is the settled propositions of law, as per Section 58 of the Evidence Act, facts admitted, need not be proved and there cannot be any better evidence than the admissions of the parties.
Here in this suit at hand, when the parties of both the sides are admitting Surya Kumar Singh as the owner of the suit properties and when the execution and registration of the sale deed dated 30.09.1978 vide Ext.3 by Surya Kumar Singh in favour of the plaintiff No.1 regarding the sale of the suit properties to plaintiff No.1 is not under dispute, then at this juncture, it cannot at all be held that, the title of the Page 12 of 16 SA No.238 of 1991 {{ 13 }} suit properties has not been passed from Surya Kumar Singh to the plaintiff No.1.
The conclusion drawn above on the basis of the admissions of the parties in their pleadings and evidence finds supports from the ratio of the following decisions:
I. 2006 (II) OLR 458--Tarini Kanta Giri Vs. Bhajanananda Giri & Others (Para No.3)--Evidence Act, 1872, Section 58--Facts admitted by a party need not be proved.
II. AIR 1971 Supreme Court 2548--Dattatraya Vs. Rangnath Gopalrao Kawathekar (dead) by his Legal representatives and Others & 2010 (2) CCC 444 Sikim--Prakash Sista Chettri Vs. Rabin Rai (Para No.14)-- In an admitted position, there is no necessity to adduce evidence.
III. 2010 (II) OLR (SC) 286--& 2010 (2) CLR 248--S.R. Srinivasa & Others Vs. S. Padmavathamma (Para No.31)-- Evidence--Admission--A true and clear admission would provide the best proof of the facts admitted--It may prove to be decisive unless successfully withdrawn or proved to be erroneous. IV. 2012 (4) CCC 171 (Andhra Pradesh)--Devarapalli Malla Reddy (Died) & Others Vs. Gadiyam Hanumayamma & Others (Para No.13)-- Evidence-- Admission --There cannot be a better proof than the admission of a fact in issue by the defendant in a suit.
V. 2017 (3) CCC 277 (Mad.)--Natrajan Vs. Tmt.
Marudhakkal & Others (Para No.21)-- Evidence-- Admission --A party is bound by his own admission. VI. 1990 (II) OLR 264--Orissa Mining Corporation Limited, represented by its Secretary Vs. Messrs Ferro Alloys Corporation Limited, Having its Office at 59, Forest Park, Bhubaneswar & Another (Para No.4)-- Evidence--Admission--Once a fact is admitted, it becomes concluded and it is not legally open to the Court to reopen it and reappraise the evidence.
Page 13 of 16 SA No.238 of 1991
{{ 14 }} When, it is the admitted case of the parties that, Surya Kumar Singh was the owner of the suit properties, then, on the basis of aforesaid purchase of the suit properties from Surya Kumar Singh through the sale deed vide Ext.3 on dated 30.09.1978, the plaintiff has become the owner of the suit properties. For which, the ownership of the suit properties does not lie with the Government.
Therefore, the findings and observations made by the 1 st Appellate Court that, the suit of the Plaintiff is bad for non-impletion of the State Government as the party in the suit cannot be sustainable under law.
Likewise the findings and observations made by the 1st Appellate Court in its Judgment and Decree regarding the non-maintainability of the suit of the plaintiffs on the ground of lack of proper description of the suit properties is also not acceptable under law.
Because, both the parties, having fought out the suit having clear idea with regard to the suit properties, forming the subject matter of the suit, because both the parties are claiming possession over the same, for which, it cannot be held that, the suit properties are not identifiable.
On this aspect, the propositions of law has already been clarified by the Hon'ble Courts in the ratio of the following decision: Page 14 of 16 SA No.238 of 1991
{{ 15 }} I. 2015 (II) OLR 504--Rebati Khuntia & Others Vs. Sri Debi Prasad Rath--(Para No.9)--Parties having fought out the suit having clear idea with regard to the space forming the subject matter of the suit, there remains no further scope for the defendants to raise the said question as in this case there was no surprise at all to the defendants and the parties are well aware of the identifiable suit space--Held, Courts below have rightly decreed the suit filed by the respondent which in view of the description of the suit property is but executable against the defendants in case of disobedience or breach.
As per the discussions and observations made above, when it is held that, the reasons assigned by the 1st Appellate Court in its Judgment and Decree for setting aside the Judgment and decree passed by the Trial Court in T.S. No.25 of 1986 are not sustainable under law, then, at this juncture, there is justification under law for making interreference with the Judgment and Decree passed by the 1st Appellate Court through this 2nd Appeal filed by the appellants.
12. As such, there is merit in this 2nd appeal of the appellants (plaintiffs), the same must succeed.
13. In the result, the 2nd Appeal filed by the appellants (plaintiffs) is allowed on contest, but without cost.
The Judgment and Decree dated 20.08.1991 and 28.08.1991 respectively passed by the 1st Appellate Court in T.A. No.7 of 1990 are set aside.
Page 15 of 16 SA No.238 of 1991
{{ 16 }}
14. The Judgment and Decree dated 16.12.1989 and 22.12.1989 respectively passed by the Trial Court in T.S. No.25 of 1986 are confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:13.03.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 15-Mar-2024 16:30:30 Page 16 of 16 SA No.238 of 1991