Orissa High Court
Bika Nag .Dead. Through His L.Rs vs Ukia Ganda Alias Bhaina Through Her L.R. on 6 September, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.68 of 1997
From a judgment and decree dated 15.11.1996 and 27.11.1986
respectively passed by Shri S.K.Pradhan, Addl. District Judge,
Bargarh in T.A.No.17 of 1996 confirming the judgment and decree
dated 31.7.1992 and 6.8.1992 passed by the learned Civil Judge,
(Jr.Division), Bargarh in T.S.No.42 of 1989.
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Bika Nag (dead)
through his L.Rs .... Appellants
Versus
Ukia Ganda @ Bhaina
through her L.R. .... Respondent
For Appellants -- Mr.Suresh Chandra Mohanty
Advocate
For Respondent -- Mrs.Prativa Mishra
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 24.8.2017 & Date of Judgment: 06.9.2017
Dr.A.K.RATH, J.This is a defendant's appeal against an affirming judgment.
2. Mst.Ukia Ganda @ Bhaina, predecessor-in-interest of the appellants instituted Title Suit No.42 of 1989 in the court of the learned Munsif, Bargarh for declaration of right, title and interest over the suit property. The case of the plaintiff is that her 2 residential house stands over Hamid Settlement Plot no.25 measuring an area of Ac.0.05 dec.. She is in possession of the said house. The suit land was recorded in the name of her husband Gayadhar Ganda in the Hamid Settlement record of right. He was paying rent. In the Major Settlement, the suit plot had been bifurcated in two plots i.e., plot no.996 Ac.0.03 dec. and plot no.996/3574 Ac.0.02 dec. Plot no.996/3574 had been recorded in the name of the plaintiff. Since the house was in a dilapidated condition, she was staying over plot no.996. But the said plot had been wrongly recorded in the name of the defendant. The defendant had no semblance of right, title and interest over the same. She filed Mutation Case No.101/88 before the Tahasildar, Barpali, who refused to entertain the same on the ground that after publication of Major Settlement record of right, he had no jurisdiction. By order dated 28.12.88 he directed the party to file the case before the Civil Court. The further case of the plaintiff was that the wife of recorded tenant had executed a Regd. Will in her favour and as such she has title over the suit property.
3. The case of the defendant is that M.S.Plot no.996, Ac.0.03 dec. had been recorded in the name of the father of the defendant in the Hamid Settlement record of right. After him, the defendant is in possession of the same. M.S.Plot No.996 relates to Hamid Settlement Plot no.24 and not Hamid Settlement Plot no.25. As the house of the plaintiff was damaged, she was staying over the house situated over plot no.996/3574. Taking advantage of the absence of the defendant, the plaintiff is claiming title in respect of the disputed property.
34. On the inter se pleadings of the parties, the learned trial court framed five issues. Both the parties led evidence, oral and documentary, to substantiate their cases. The learned trial court held that the plaintiff has right, title and interest over the suit land and decreed the suit. Challenging the said judgment and decree, the defendant filed Title Appeal No.17 of 1992 in the court of the learned Additional District Judge, Bargarh, which was eventually dismissed. It is apt to state here that during pendency of the suit, the sole plaintiff died on 30.5.1999. Her legal heirs have been substituted. During pendency of the appeal, the sole defendant also died. Thereafter his legal heirs have been substituted.
5. The Second Appeal was admitted on the following substantial questions of law enumerated in para-1(B), (C) & (D) of the appeal memo. The same are:
"B) In a suit of such a nature whether the plaintiff can succeed due to the weakness of the defendant with regard to proof of his title and whether the trial court is justified in overlooking the principle that the plaintiff must succeed on the strength of its own case.
C) When the entries in the Record of Rights in respect of two settlements are relied on and there is conflict between them, if the later entry is to prevail or the earlier entry in the Records of Right will prevail.
D) Whether the courts below are justified in ignoring the evidence produced by the defendant and if the courts below are justified in utilizing the report of the Revenue Inspector in a mutation proceeding 4 for the purpose of arriving at a conclusion in the civil suit."
6. Heard Mr.Suresh Chandra Mohanty, learned Advocate for the appellants and Mrs.Prativa Mishra, learned Advocate for the respondent.
7. Mr.Mohanty, learned Advocate for the appellants argued with vehemence that two different record of right of Hamid Settlement in respect of plot no.25 had been exhibited from both sides. There cannot be two plots for the same place of land in a particular settlement. Ext.A is the certified copy of Hamid Settlement record of right having an area of Ac.0.24 dec. The land has been recorded in the name of Sudarsan Sahu and others. Certified copy of Hamid Settlement map has been marked as Ext.2. On a bare perusal of the same, it is evident that Hamid Settlement Plot No.25 does not correspond to Major Settlement Plot nos.996 and 996/3574. The Amin has been examined by the plaintiff as P.W.4. He stated that H.S. plot no.25 is a rectangular in shape having an area of Ac.0.24 dec.. Plot Nos.996 and 996/3574 are jointly in two shape. The evidence adduced by the plaintiff is confusing. The name of the defendant has been recorded in the major settlement in respect of the suit plot published in the year 1970. Even if the Hamid Settlement R.O.R. was published in the name of the plaintiff, then there being conflicts in both the settlement entries, the later entry will prevail. The suit land is not the adjacent land of the plaintiff. She was not in possession of the same when the record of right was published. No prayer has been made for correction of the said R.O.R. The findings of the court below are perverse. He relied on the decision of the apex Court in 5 the case of Shri Raja Durga Singh of Solon Vrs. Tholu and others, AIR 1963 SC 361.
8. Per contra, Mrs.Prativa Mishra, learned Advocate for the respondent submitted that both the courts below concurrently held that the suit house standing over it corresponds to Hamid Settlement plot no.25. The same was recorded in the name of grandfather of the plaintiff. The courts below, after careful and through consideration of the materials available on record, held that Hamid Settlement plot corresponds to current settlement plot no.996 and 996/3574. This Court should not interfere with the findings of the courts below. There is no perversity or illegality in the findings of the courts below.
9. The plaintiff asserts that Hamid Settlement Plot No.25 measuring an area Ac.0.05 dec. corresponding to M.S.Plot Nos.996, Ac.0.03 dec. and 996/3574 Ac.0.02 dec. The suit land is a portion of Hamid Settlement Plot No.25 over which ancestral house stands. On the other hand, the defendant claimed over the suit land that he is in possession of the same. The plaintiff examined one Hemsagar Boria, P.W.4, an Amin, who measured the land. P.W.4 has stated that he measured the land and prepared the map vide Ext.1. Both the courts below held that M.S.Plot no.996 relates to Hamid Settlement Plot no.25. The grandfather of the plaintiff was the recorded owner. This is essentially a finding of fact. On a threadbare analysis of the evidence on record, both oral and documentary and pleadings, the learned trial court declared the title of the plaintiff. There is no perversity or illegality in the findings of the courts below.
610. Reliance placed on the decision of Shri Raja Durga Singh of Solon (supra) is totally misplaced. The apex Court held that where a new entry is substituted for an old one it is that new entry which will take the place of old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry. The settlement R.O.R. neither creates title nor extinguishes title. This is a suit for declaration of title. The substantial questions of law are answered accordingly.
11. The Second Appeal, being devoid of merit, is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack, The 6th September, 2017/CRB 7