Orissa High Court
Barun Pradhan vs Hrusikesh Behera And Another on 30 August, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
ORISSA HIGH COURT: CUTTACK
RSA No. 481 OF 2012
[In the matter of appeal under Section 100 of the Code of
Civil Procedure.
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Barun Pradhan ...... Appellant
-Versus-
Hrusikesh Behera and another ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellant : M/s. S.P. Misra, Sr. Advocate
S. Mishra, B. Mohanty,
B.S. Panigrahi &
S.K. Sahoo, Advocates
For Respondents : M/s. A.R. Dash,
A. Mohnata, S. Kar &
S. Kanuno, Advocates
______________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
ORDER
30.08.2023 I.A. NO. 506 of 2023 & RSA No. 481 OF 2012 SASHIKANTA MISHRA, J.
Both the I.A. for condonation of delay and hearing on the question of admission of the appeal were taken up on 09.08.2023. Thus order shall dispose of both. Page 1 of 8
2. The above mentioned I.A. is filed for condonation of delay. Office has pointed out a delay of 222 days in filing of the appeal. It is stated that the appeal was filed in time but without court fees, which was filed 222 days later. As such, the delay has to be treated as 222 days.
3. Mr. Soumya Mishra, learned counsel for the appellant submits that at the time of filing of the appeal, the required court fees could not be arranged and therefore to save limitation, the appeal was filed by the advocates' clerk attached to his office on a mistaken notion that it would not constitute delay. Subsequently, however, office having pointed out the above fact the court fees were paid, the delay may, therefore, be condoned.
4. Having regard to the fact that the Second Appeal itself was filed in time but was treated as incomplete in the absence of filing of court fees, which is a technical ground, this Court is inclined to take a lenient view. This is for the reason that the party cannot suffer for the laches of his lawyer. In such view of the matter, the delay of 222 days in filing of the appeal is condoned.
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5. Heard Mr. S. Mishra learned counsel for the appellant and Mr. A.R. Dash, learned counsel appearing for the respondent No.1 who has already entered appearance on the question of admission.
6. The plaintiff before the trial court has preferred the appeal against the confirming judgment passed by the 1st Appellate Court. The plaintiff-appellant had filed C.S. No. 52 of 2009 in the Court of Civil Judge (Senior Division), Champua for declaration of right, title, interest, recovery of possession and mandatory injunction. The suit was decreed in part. The plaintiff carried the matter in appeal being 24/1 of 2011-09 in the Court of Additional District Judge, Champua. Said appeal was dismissed and the judgment and decree of the trial court was confirmed.
7. Heard Mr. Soumya Mishra, learned counsel for the appellant and Mr. Subhendu Kar, learned counsel appearing for the defendant-respondent No.1 on the question of admission.
8. A plaintiff's case, briefly stated is that as per amicable family settlement, the suit plot, being Hal Plot No. 160 measuring an area of Ac.0.38 decimals was allotted in Page 3 of 8 favour of one Munsi and father of the plaintiff, namely, Rabi, both of whom possessed Ac. 0.19 decimals each with Rabi being in possession of the western half. The plaintiff inherited the properties upon death of his father. The sons of Munsi, however, transferred the land in favour of one Banamali Behera, the predecessor of the defendants. In the year 2005, the defendants encroached upon the plaintiff's land and started construction of a house which was objected to by him but the defendants claimed that the same was government land. On identification, the plaintiff came to know that the land in question belongs to his family.
9. The case of the defendants, inter alia, is that father of the plaintiff Rabi Pradhan alienated Ac.0.12 decimals of land on 17.03.1992 towards the southern side of the western half of Hal Plot No.160 in favour of the minor son Bikash Behera and possession was delivered. A residential house was also constructed. When mutation proceeding was initiated in the year 2006, it came to light that a wrong plot number had been mentioned in the sale deed for which they approached the plaintiff for Page 4 of 8 rectification but he delayed the matter and thereafter filed the suit mischievously.
10. On such pleadings the trial court framed eight issues for determination. After analyzing the oral and documentary evidence on record, the trial court arrived at the finding that the plaintiff was guilty of suppressing the fact of execution of the sale deed on 17.03.1992 and had approached the Court with unclean hands by taking advantage of wrong description of the property. However, the trial court found that the plaintiff has valid title over the balance property measuring Ac.0.07 decimals of Plot No.160. The suit was thus, decreed in part by declaring the title of the plaintiff along with other co-sharers over Ac.0.07 decimals of suit Plot No. 160 except the southern side of western half of Plot No. 160 alienated in favour of the defendants.
11. The plaintiff, as already stated, being dissatisfied carried the matter in appeal mainly highlighting the misdescription of property in the registered sale deed executed by his father in favour of the defendants. The 1st Appellate Court however took note of the ambiguity in the Page 5 of 8 sale deed and admitted extensive evidence to explain the ambiguity and on such basis held that the plaintiff could not prove his title over the suit property to the extent of Ac.0.12 decimals on the southern side of western half of Hal Plot No.160. The appeal was therefore, dismissed.
12. Mr. Soumya Mishra, learned counsel appearing for the appellant would argue that the boundary mentioned in the sale deed has to tally with the actual possession of the party. So, even if the plot number is wrong, the evidence clearly shows that the boundary described in the registered sale deed and the boundary of the plot over which the defendants are in possession are different. To such extent therefore, the proposition that the boundary will prevail over the plot number has no application.
13. Per contra, Mr. Subhendu Kar would argue that both the courts below have extensively analyzed the oral and documentary evidence on record to arrive at the finding that the plaintiff could not prove his title beyond Ac.0.07 decimals of land and in particular over Ac.0.12 decimals of land to the southern side of the western half of Plot No. 160. This being essentially a question of fact Page 6 of 8 concurred by both the courts below need not be reopened by this Court.
14. I have considered the rival submissions and have also gone through the judgments passed by the trial court and the 1st Appellate Court. As already stated, the trial court observed that the plaintiff had suppressed the fact of execution of the sale deed by his father in favour of the defendants in 1992. Further, regardless of the so called ambiguity in description of the property sold, the boundaries thereof are sufficient to identify it. The above finding of the trial court was confirmed by the 1st Appellate court also by referring to the recitals of the sale deed in question and the evidence adduced relating to the boundaries. In view of the ambiguity in the recitals of the sale deed, the trial court rightly admitted oral evidence to explain the same. The finding thus rendered is based on evidence and in any case, is purely factual in nature. The contention that the proposition that boundaries shall prevail over the plot number in case of ambiguity has no application to the facts of the case is untenable. It is trite that the High Court exercising jurisdiction under Section Page 7 of 8 100 of CPC is always slow to interfere with concurrent findings of fact unless the same is blatantly wrong or perverse. In view of what has been discussed hereinbefore, such a situation does not arise in the present case.
15. For the foregoing reasons therefore, this Court is of the considered view that the Second Appeal involves no substantial question of law for which the same is dismissed being not admitted.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 30th August, 2023/ B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 01-Sep-2023 10:34:12 Page 8 of 8