Orissa High Court
Bibeka Sahoo And Others vs Jemamani Roul And Others on 3 October, 2012
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
RFA No.84 of 2003
From the judgment and decree dated 29.4.2003 passed by Shri Prakash
Ch. Mohapatra, Civil Judge (Senior Division), Athmallik in Title Suit
No.25 of 2000.
Bibeka Sahoo and others ...... Appellants
- Versus-
Jemamani Roul and others ...... Respondents
For Appellants : M/s. B.H. Mohanty, D.P. Mohanty,
R.K. Nayak & T.K. Mohanty
For Respondents : M/s. S.C. Ghose, K.M. Panigrahi
& P.C. Das (R-1 to 7)
A.G. & ASC (R-10)
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PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of hearing - 27.9.2012 :: Date of judgment - 3.10.2012
B.K. PATEL, J.This appeal is directed against judgment and decree dated 29.4.2003 passed by learned Civil Judge (Senior Division), Athmallik in Title Suit No.25 of 2000.
2. Appellants were defendant nos.1(a) to 1(e) whereas respondent no.1 was the plaintiff, respondent nos.2 to 7 were proforma defendant nos.5 to 10, respondent nos.8 and 9 were defendant nos.2 and 3, and respondent no.10 was defendant no.4 in the suit. Defendant nos.1(a) to 1(e) were substituted in the suit upon death of original defendant no.1 Sumitra as her legal heirs.
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3. Plaintiff's suit is a suit for declaration that the plaintiff and pro forma defendant nos.5 to 10 are entitled to 1/4th share in respect of compensation amount awarded for acquisition of suit lands and for injunction to restrain defendant no.4 from disbursement the entire compensation amount to defendant nos.1 to 3. The genealogy given below would show relationship between the plaintiff and defendant nos.1 to 3 and 5 to 10.
GENEALOGY Late Laxman Pradhan ________________________________________________________ Late Paikira Late Mani Late Gokula Wife-late Tilotama (issue less) _____________________ Naba (D-2) Santosh (D-3) ______________________ Sumitra Late Subarna (D-1) husband-Mangulu (D-7) ____________________________________________________________ Duryodhan Santosh Kanak Tarulata Bhama Jama (D-5) (D-6) (D-8) (D-9) (D-10) (Plnt.) 3
4. As is evident from the genealogy Paikira, Mani and Gokula were three sons of Laxman. Suit lands originally belonged to Laxman which were subsequently recorded jointly in the names of Paikira, Mani and Gokula. Gokula died issueless. After death of Paikira the suit lands were recorded in the names of his wife Tilotama and Mani. Defendant no.1-Sumitra and defendant no.7' s wife Subarna were daughters of Paikira. After death of Tilotama suit lands were recorded in the names of deceased defendant no.1 Sumitra and Mani in Mutation Proceeding No.311 of 59-60 and also in the Hal R.O.R. These facts are not in dispute.
5. Plaintiff's case is that though late Subarna had 1/4th share over the suit lands which devolved upon plaintiff and pro forma defendant nos. 5 to 10 after her death, defendant no.1 Sumitra got the suit lands recorded in her name along with Mani's by practising fraud and deception. Suit lands were acquired by the Government for construction of Manjore Irrigation Project. When Plaintiff and defendant nos.5 to 10 claimed before defendant no.4, the Land Acquisition Officer, to release 1/4th of compensation amount, their claim was turned down. In such circumstances, the plaintiff filed the suit.
6. Defendant nos.4 to 10 were set ex parte. Contesting defendant nos.1 to 3 filed joint written statement. Their case is that during her life time Subarna relinquished her right, title and interest over the suit lands in favour of defendant no.1-Sumitra by giving a written consent to that effect in Mutation Proceeding No.311 of 59-60. 4 Plaintiff and pro forma defendant nos.5 to 10 never challenged recording of the suit lands in the names of defendant no.1 Sumitra and Mani till the date of payment of compensation amount. It is asserted that in view of relinquishment of her right, title and interest over the suit lands by Subarna, plaintiff and pro forma defendant nos.5 to 10 are not entitled to 1/4th share of the compensation amount.
7. On the basis of rival pleadings, the trial court framed the following issues:
(1) Is the suit maintainable?
(2) Whether plaintiff and proforma defendant nos.5, 6, 8, 9 and 10 have right, title and interest over suit lands in Hal Khatian No.14 of village-Bankual? (3) Whether plaintiff and proforma defendant nos.5, 6, 8, 9 and 10 are jointly entitled to get 1/4th share from the compensation amount payable under Lands Acquisition Act?
(4) Whether defendant no.4 should be restrained to disburse the entire compensation amount to defendant nos.1, 2 and 3?
(5) Is the suit bad for non-joinder and mis-joinder of necessary parties?
8. In order to substantiate her case plaintiff examined four witnesses including herself as P.W.1, defendant no.7 as P.W.2 and defendant no.5 as P.W.4, and also placed reliance on documents 5 marked Exts.1 to 6 of which Ext.3 is the order sheet in Mutation Case No.311 of 59-60 and Ext.6 is the certified copy of voter list of village Chillikhandi for the year 1965. Defendants examined six witnesses of whom D.W.1 is defendant no.1(d), D.W.4 is defendant no.1(c) and D.W.5 is defendant no.2 and also placed reliance on Ext. A, the certified copy of order dated 12.9.59 passed in Mutation Proceeding No.311of 59-60 and Ext.B series, the rent receipts.
9. On an appraisal of evidence on record the trial court answered the two vital issue nos.(2) and (3) in favour of the plaintiff holding that the plaintiff and defendant nos.5,6,8,9 and 10 have right, title and interest over the suit lands and they are jointly entitled to get 1/4th share out of the compensation amount payable under the Land Acquisition Act. Accordingly, the suit was decreed.
10. In assailing the impugned judgment it was strenuously contended by the learned counsel for the appellants that in accepting plaintiff's case trial court committed gross error in rejecting the case of the contesting defendants that late Subarna relinquished her right, title and interest over the suit lands by executing a relinquishment deed containing her written consent on the basis of which her name was excluded and only the names of her sister Sumitra and late Mani were recorded as owner of the suit lands in Mutation Proceeding No.311 of 59-
60. It was argued that trial court committed error on record in observing that deed of relinquishment executed by Subarna was not brought on record in view of the fact that the entire case record was before it and 6 entire order sheet in Mutation Proceeding no.311 of 59-60 was marked Ext.3 on behalf of the plaintiff. It was also argued that mutation of the suit lands in the names of defendant no.1-late Sumitra and late Mani to the exclusion of late Subarna through whom plaintiff and proforma defendant nos.5 to 10 claim 1/4th share over the suit lands was never objected to. Also no objection was raised in course of settlement operation against exclusion of name of Subarna or her successors-in- interest. Such circumstances lend support to the assertion of the contesting defendants that Subarna in fact had executed a deed of relinquishment or consent deed which was available before the trial court in the record in Mutation Proceeding No.311 of 59-60. It was also contended that mutation of the suit lands in the name of deceased- defendant no.1 as the only legal heir of late Paikira would operate as res judicata against the plaintiff and defendant nos. 5 to 10 in claiming any interest over the suit lands in any subsequent proceeding including the present suit.
11. Learned counsel for the respondent nos.1 to 7 in reply contended that it is not disputed that Subarna being their predecessor- in-interest, plaintiff and defendant nos. 5 to 10 were entitled to 1/4th share over the suit lands. Therefore, it was for the contesting defendants to establish that Subarna had in fact relinquished her interest over the suit lands. Trial court has assigned cogent reasons to discard case of contesting defendants that Subarna had consented to relinquish her 7 right, title and interest over the suit lands. In such circumstances, there is no infirmity in the impugned judgment and decree.
12. Late Laxman Pradhan was the common ancestor of the parties. As his son Gokula died issueless, the other two sons late Paikira and Mani inherited the suit lands in equal shares. Deceased-defendant no.1 Sumitra and her sister late Subarna the two daughters of late Paikira, became entitled to 1/4th share of the suit lands after death of Paikira and his wife Tillotama. Therefore, entire case of the defendants depends on acceptance of plea that late Subarna had relinquished her interest in favour of the deceased defendant no.1 Sumitra.
13. Admittedly, no deed of relinquishment has been admitted in evidence as an exhibit. However, learned counsel for the appellants submitted that deed of relinquishment executed by Subarna is available in the case record of Mutation Proceeding No.311 of 59-60, order sheet of which has been marked Ext.3. Perusal of the said plain paper document stated to be the deed of relinquishment available in the case record is found to be bearing L.T.I. purported to be of Subarna. The document was not proved. Neither the scribe nor any attesting witness was examined as a witness. There is no indication in the order sheet that Subarna appeared in the mutation proceeding at any point of time. Admittedly, Subarna was illiterate. There is nothing to indicate that contents of the plain paper document stated to be deed of relinquishment was read over and explained to her. In such circumstances, trial court 8 rightly refrained from placing any reliance on the said document and rightly held that the contesting defendants did not prove deed of relinquishment or written consent stated to have been executed by Subarna. Moreover, document relied upon by the contesting defendants to establish relinquishment by Subarna of her right, title and interest over the suit lands is not a registered document for which it is not capable of being used for any purpose in view of the provision under section 17 of the Registration Act. Trial court also appears to have placed reliance on Ext.6 voter list of the year 1965 in which Subarna has been described to be aged 21 years to conclude that Subarna was minor and incapable of giving her consent in the year 1959 in Mutation Proceeding no.311 of 59-60.
14. Learned counsel for the appellants made a feeble attempt to urge that recording of the suit lands in the mutation proceeding in the names of other co-sharers to the exclusion of Subarna operates as res judicata against the plaintiff in filing the present suit. However, the mutation proceeding did not involve adjudication of title over the suit lands. It is well settled that Records-of-Right do not create or extinguish title. The contesting defendants having failed to establish their case of execution of deed of relinquishment by Subarna, recording of suit lands in the names of other co-sharers only in the mutation proceeding or subsequent settlement operation is of no consequence. Trial court has rightly held that the plaintiff and defendant nos.5,6,8,9 and 10 were entitled to 1/4th share of the suit lands and are entitled to 1/4th of the 9 compensation amount awarded for acquisition of the suit lands. There is no merit in the appeal.
15. Accordingly, the appeal is dismissed. The impugned judgment and decree are confirmed.
It was stated that in view of the interim order dated 20.11.2007 defendant no.4, Land Acquisition Officer, has deposited 1/4th of the compensation amount in fixed deposit. Plaintiff and defendant nos. 5,6,8,9 and 10 are at liberty to move for disbursement of the aforesaid amount.
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B.K. Patel, J.
Orissa High Court, Cuttack, Dated the 3rd October,2012/A.Sethy