Orissa High Court
Mochiram Mohanta vs Amar Mohanta & Another on 29 February, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.331 of 2018
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and decree dated 20.03.2018 &
29.03.2018 respectively, passed by the learned Additional District Judge,
Rairangpur in R.F.A. No.36 of 2015, setting aside the judgment and decree
dated 08.09.2015 & 29.09.2015 respectively passed by the learned Senior
Civil Judge, Rairangpur in Civil Suit No.29 of 2013.
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Mochiram Mohanta .... Appellant
-versus-
Amar Mohanta & Another .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- M/s. Sabita Ranjan Pattnaik,
P. Pattnaik, D. Pradhan,
N. K. Senapati
Advocates
For Respondents - M/s. A. P. Bose, D. J. Sahoo,
S. K. Hota,
Advocates
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING :20.02.2024:: DATE OF JUDGMENT:29.02.2024 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and preliminary decree dated 20.03.2018 & 29.03.2018 respectively, passed Page 1 of 10 R.S.A. No.331 of 2018 {{ 2 }} by the learned Additional District Judge, Rairangpur in R.F.A. No.36 of 2015.
The Respondent No.1 as the Plaintiff had filed the suit (Civil Suit No.29 of 2013) in the Court of learned Senior Civil Judge, Rairangpur seeking partition of the suit schedule property described in schedule 'C' of the plaint arraigning the Appellant and their sister as the Defendant No.1 & 2 respectively. The suit was dismissed.
The Respondent No.1 (Plaintiff) being the unsuccessful Plaintiff and thus non-suited, had carried the Appeal under section 96 of the Code, which has been allowed and the First Appellate Court has decreed the suit preliminarily on contest against the Respondent No.2 and ex parte against the Appellant (Defendant No.1). The Appellant (Defendant No.1) and Respondent No.1 (Plaintiff) have been held entitled to 50% of share each over the land under Plot No.219. The preliminary decree has been passed to the above effect with the observation that due regard be given to the possession of the parties as far as possible when that would be worked out in the field. The Appellant being the aggrieved Defendant No.1, is now before this Court in the Second Appeal.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.
3. Plaintiff's case is that the Plaintiff is the elder brother of Defendant No.1 and the Defendant No.2 is their sister. The land under Hal Khata No.16 of Mouza Rairangpur stood recorded in the name of the Plaintiff and Defendant No.1. The Defendant No.2's name did not find mention in the said Record of Right as he had relinquished her right, title, interest over the suit Page 2 of 10 R.S.A. No.331 of 2018 {{ 3 }} land. The Plaintiff and Defendant No.1 possessed some lands from out of that land under Hal Khata No.16 for their convenience without any partition in metes and bounds. There was an understanding between them that they would effect a final partition of the joint family properties taking equal shares unto each. At the time of the arrangement, the Defendant No.2 voluntarily expressed that he would not claim any share out of the ancestral property. Thereafter, the parties had sold some lands out of their shares with the knowledge of each other. So far as the land under Hal Plot No.219 of that Hal Khata No.16 of Mouza Rairangpur, the area extends to Ac 0.26 decimals. At the time of partition, the plot was divided into two halves; each possessing Ac 0.13 decimal of land. When the Plaintiff is continuing to possess the said portion of the plot, the Defendant No.1 sold his portion of the land to one Dasaratha Mohanta by registered sale deed dated 25.08.1993. Pursuant to the said sale, the Defendant No.1 delivered possession of the sold land to that Dasaratha Mohanta.
After that the Defendant No.5 filed petition under section 19(1)(C) of the Odisha Land Reforms Act, 1960 (for short, 'OLR Act') vide OLR Case No.86 of 2011 before the Tahasildar, Rairangpur. The Plaintiff did not receive any notice in the said matter. There was no field enquiry. Be that as it may that Ac 0.13 decimal of land of Plot No.219 under Hal Khata No.16 of Mouza Rairangpur was the share of the Plaintiff and that was ordered to be recorded by the order in that proceeding in favour of the Defendant No.1. In the said petition, under section 19(1)(C) of the OLR Act, one joint affidavit of the parties had been filed. But the Plaintiff says to have never sworn that affidavit nor had lent his LTI over there. He states that he had no knowledge of such petition. The Plaintiff, therefore, having come to know about the said recording, filed the suit praying therein to declare said order of Tahasildar as Page 3 of 10 R.S.A. No.331 of 2018 {{ 4 }} null and void and for a preliminary decree allotting 50% share over the suit schedule land and all the land under Hal Plot No.219 under Hal Khata No.16 in his favour exclusively.
4. The Defendant No.1 in his written statement raised the question of maintainability of the suit in view of the order passed by the Tahasildar in OLR Case No.86 of 2001 in the matter of a proceeding under section 19(1)(C) of the OLR Act. It is stated that the land measuring Ac 1.10 decimal had been recorded in the name of Defendant No.1 under Khata No.376/498 and land measuring Ac 1.20 decimals had been recorded in the name of the Plaintiff. The Defendant No.2 had relinquished her right over the said land. In the year 1993, the Plaintiff and Defendant No.1 were possessing their ancestral land jointly. So they were in need of money to purchase bullocks. It is stated that on the request of the Plaintiff, the Defendant No.1 sold Ac 0.13 decimals of land to Dasaratha Mohanta and with the said consideration received, bullocks were purchased for cultivation of the joint family properties. The Defendant No.1 alone sold the said land as the Plaintiff had gone outside and remained absent at the time of execution of the sale deed on 25.08.1993. The Defendant No.1 is unable to read and write. Hence he could not know the contents of the deed and the land has been sold.
It is further stated that with the consent of the Plaintiff and Defendant No.1, the petition under section 19(1)(C) of the OLR Act has been filed which had led to registration of the OLR Case No.86 of 2011. The notice was duly served on the Plaintiff on 10.12.2011 and, thereafter, the local Revenue Inspector having demarcated the suit land on 10.12.2012 in presence of the Plaintiff, the Defendant No.1 and witnesses. Then the Plaintiff and Defendant No.1 having sworn the affidavit jointly before the Executive Magistrate on 27.02.2012, the petition was allowed basing upon the report of the local Page 4 of 10 R.S.A. No.331 of 2018 {{ 5 }} Revenue Inspector and affidavit submitted by the parties. Accordingly, the land measuring Ac1.10 decimal have been recorded in the name of Defendant No.1 and Ac. 1.20 decimal have been recorded in the name of the Plaintiff. It is, therefore, stated that the Plaintiff is estopped from filing of the suit for partition.
5. The Defendant No.2 claimed her right, title and interest over the suit land described under Hal Khata No.16 of Mouza Rairangpur and stated that the earlier partition between the Plaintiff and Defendant No.1 be declared invalid.
6. On the above rival pleadings, the Trial Court framed the following issues:-
i. Is the suit maintainable?
ii. Has the plaintiff any cause of action to file this suit? iii. Can OLR Case No.86 of 2011 be declared as null and void?
iv. Is the plaintiff entitled to get 50% share out of the suit schedule land?
v. To what reliefs, if any, the plaintiff is entitled?
7. The Trial Court rightly taking up issue no.iii & iv together for decision as those are intertwined, upon examination of evidence and their evaluation has rendered the finding that the Plaintiff has failed to adduce any rebuttal evidence to the order of the Tahasildar and accordingly, the order of the Tahasildar passed in that proceeding under section 19(1)(C) of the OLR Act cannot be declared null and void. It is further stated that the Plaintiff's possession of the suit property is not lawful in view of the Records of Right published under Ext.7 and 8. The Trial Court thus dismissed the suit.
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8. The Plaintiff being non-suited, then carried the First Appeal. The First Appellate Court on going through the rival pleadings, the evidence on both oral and documentary and keeping in view the contentions raised formulated the following points for determination:-
i. Whether the decision of the Tahasilar in O.L.R Case No.86/2011 in effecting the partition of the suit properties is to be declared as null and void.
ii. Whether the suit of the plaintiff is to be preliminarily decreed by declaring his share to be 50% over the suit properties and an area of Ac.0.13 decimals out of Ac. 0.26 decimals of land in Hal Plot No.219 under khata no.16 is to be allotted to the share of the plaintiff (appellant) exclusively.
9. Answering the first point for determination by appreciating the evidence independently at its level, in the backdrop of the rival pleading, the following has been said by the First Appellate Court.
"Under the circumstances, I am of the opinion that the learned trial court has committed the error apparent on record in not considering the case of the plaintiff particularly when the plaintiff has adduced ample evidence from his side and simultaneously examined two witnesses on his behalf. Hence, the said order of the Tahasildar, Rairangpur in O.L.R. Case No.86/2011 U/S 19(1)C is declared to be illegal."
Coming to the second point for determination, it has been said that the Defendant No.2 has relinquished her share over the same and the said properties are liable to be partitioned between the Plaintiff and Defendant No.1. Having found the Defendant No.1 to have already sold Ac. 0.13 decimal of land from the said plot to Dasaratha Mohanta by executing Page 6 of 10 R.S.A. No.331 of 2018 {{ 7 }} registered sale deed on 25.08.1993, the Plaintiff alone has been found entitled to the balance Ac 0.13 decimal of land under Hal Khata No.16 Hal Plot No.219. The suit was preliminarily decreed holding the Plaintiff to be entitled to 50% share over Hal Plot No.219 and in view of the sale made by the Defendant No.1, the Plaintiff has been held entitled to the available land under that plot, exclusively.
10. The Appeal has been admitted to answer the following substantial questions of law:-
I. Whether the view taken by the lower appellate court contrary to the one taken by the trial court in so far as the issue no.3 is concerned is based on perverse appreciation of evidence and is also not tenable on the face of the settled position of law?
II. Whether the lower appellate court has failed in its duty having not undertaken the exercise of detail examination of the evidence on record at its level so as to arrive at a finding on issue no.3?
11. Mr. S. R. Pattnaik, learned counsel for the Appellant submitted that the view taken by the Trial Court that the Plaintiff having received notice in that proceeding under section 19(1)(C) of the OLR Act when has appeared before the Tahasildar and finally the order has been passed therein, which cannot be questioned by the Plaintiff in the suit, the First Appellate Court is not at all right in holding that the order passed by the Tahasildar is void. He further submitted that the order carries the presumption as to its validity and in the absence of any strong rebuttal evidence to satisfy the Court, that fraud has played the role therein, the First Appellate Court ought not to have ignored that order of the Tahasilar, which has otherwise attained finality.
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12. Mr. A. P. Bose, learned counsel for the Respondent No.1 submitted all in favour of the findings returned by the First Appellate Court in favour of the Plaintiff. According to him, since the Defendant did not at all contest the suit by leading any evidence whatsoever, in at least coming to the witness box and asserting that everything has been done correctly in that proceeding under section 19(1)(C) of the OLR Act with the consent of the Plaintiff, the defence taken in the written statement has gone without being proved. So, according to him, the First Appellate Court is absolutely right in giving the finding against that order of the Tahasildar, which was held by Defendant No.1 as the trump card. He submitted that by such order of the Tahasildar, the Defendant No.1 has been unlawfully enriched; as after having sold his part of the land, he has again been able to secure the rest part to the total exclusion and deprivation of the Plaintiff. He, therefore, submitted that the substantial questions of law are to be answered in the negative.
13. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also travelled through the rival pleadings and the evidence both oral and documentary on record.
14. The Plaintiff in the suit in order to bulldoze the order of the Tahasildar passed in a proceeding under section 19(1)(C) in OLR Case No.18 of 2011 is saying that he had not been noticed, there was no field enquiry, he has not sworn any affidavit nor has put his LTI and had no knowledge about the said petition. The Defendant No.1 has gone to deny all those.
Pin pointed case of the Plaintiff is that the Defendant No.1 has obtained such order from Tahasildar by practising fraud and upon manipulation behind the back of the Plaintiff.
Page 8 of 10 R.S.A. No.331 of 2018{{ 9 }} The Plaintiff has examined himself as P.W.2. The Defendant No.1 after filing the written statement, has however not come to the witness box to depose anything in support of his defence especially by denying the allegations levelled against him in obtaining that order from the Tahasildar. The Defendant No.1 has also not even come forward to cross-examine the three witnesses examined from the side of the Plaintiff including the Plaintiff himself as P.W.2. No document has been filed from the side of the Defendant No.1. The Plaintiff when has stated on oath that the LTI available on the affidavit filed before the Tahasildar is not his LTI and he had absolutely no knowledge about the said proceeding, such evidence has remained unchallenged. On the other hand, when the Plaintiff has specifically made the allegation against the Defendant No.1 that he had obtained that order of the Tahasildar by practising fraud and manipulating the record placed before the Tahasildar, the Defendant No.1 has avoided to come to the witness box in denying the same and asserting that everything had been done in that proceeding correctly.
15. In such state of affair, in the evidence, in my view, the Trial Court was not right in saying that the Plaintiff has failed to adduce any rebuttal evidence against the order of the Tahasildar, and, therefore, said order cannot be declared null and void.
Since the evidence adduced by the Plaintiff has stood unimpeached and in the absence of any evidence either oral or documentary being tendered from the side of the Defendant No.1, particularly when he has himself witnessed in the witness box as giving evidence on his oath, which calls for drawal of adverse inference in concluding that had he examined himself, the fraud would have been unearthed through him and that would have bolstered the case of the Plaintiff, the First Appellate Court is Page 9 of 10 R.S.A. No.331 of 2018 {{ 10 }} absolutely right in declaring the said order of the Tahasildar in OLR Case No.86 of 2012 under section 19(1)(C) of the OLR Act as illegal.
Having said as above, when the Defendant No.2 during trial has come forward to say that she has no objection or demand over the suit property and her brothers have been possessing some land each for convenience without any partition in metes and bounds; in view of the sale made by the Defendant No.1 in respect of Ac0.13 decimal of land out of that plot to Dasaratha Mohanta as has been proved through the certified copy of the said sale deed, which had been admitted in evidence and marked Ext.3, the ultimate result returned by the First Appellate Court is held to be in order.
The substantial questions of law are thus answered against the Defendant No.1 which lead to confirm the judgment and preliminary decree passed by the First Appellate Court.
16. In the result, the Appeal stands dismissed. There shall however be no order as to cost.
(D. Dash), Judge.
Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 05-Mar-2024 10:56:24 Page 10 of 10 R.S.A. No.331 of 2018