Akrura Sahoo vs Ghana Dharua and others

Plaintiff is the appellant against a confirming judgment. The suit was for declaration of right, title and interest and delivery of possession.

The case of the plaintiff was that Sansara Dharua had four sons, namely, Nanda, Kunja (defendant no.2), Sana and Goura. After death of

Nanda, his widow-Mena lived with Kunja. Kunja purchased the suit land in the name of Mena. Kunja executed a registered sale deed dated

2.2.65 vide Ext.1 in favour of the plaintiff for a valid consideration. He is in possession of the same. Defendant no.1 disturbed his possession. A

proceeding under Sec.145 Cr.P.C. was initiated against defendant no.1. In the said case, the defendant no.1 claimed that he was the adopted son

of Mena. Defendant no.1 was not the adopted the son of Mena. He had no right, title and interest over the suit land. In the said proceeding, the

possession of defendant no.1 was declared. He filed revision before the Sessions Judge, which was dismissed. With this factual scenario, he

instituted the suit seeking the reliefs mentioned supra.

The defendant no.1 filed a written statement denying the assertions made in the plaint. The case of the defendant no.1 was that Mena never lived

with Kunja after the death of her husband. Mena and her husband adopted him when he was a child. Mena purchased the suit land. She was in

possession of the same. Kunja had no right, title and interest over the same. The sale deed executed by him in favour of the plaintiff cannot create

any title. The plaintiff never possessed the suit land. The defendants are scheduled tribe. The plaintiff is not a scheduled tribe. The sale deed

executed by Kunja in favour of the plaintiff without taking permission from the revenue authority is void.

Stemming on the pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary, to substantiate their

cases. Learned trial court came to hold that the sale deed had been exhibited by Chandrabati Samanta Rai vide Ext.A. The same revealed that

Mena purchased the suit land. Mena was in possession of the suit land. No document had been filed to show that Kunja purchased the suit land.

Kunja admitted that he had no right, title and interest over the suit land. In view of the same, Kunja had no right, title and interest over the suit land.

The sale deed was executed in the year 1965. The Orissa Merged States (Laws) Act, 1950, (hereinafter referred to as ''the Act, 1950'') was in

force. Kunja is a member of scheduled tribe. No permission was accorded to purchase the suit land. The sale is hit by the Act, 1950. Thus, the

plaintiff cannot acquired right, title and interest over the suit land. Defendant no.1 is not the adopted son of Mena. Held so, it dismissed the suit.

The plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, Bolangir, which was subsequently

transferred to the court of the learned Additional District Judge, Bolangir and renumbered as T.A. No.33/20 of 1991-92. Learned lower appellate

court came to hold that there is no material on record to show that the restrictions originally contained in Sec.7(b) of the Act, 1950 was in force on

the date of transfer, but concurred with the other findings of the learned trial court. The appeal was dismissed.

The second appeal was admitted on the substantial questions of law enumerated in ground no.4 (A), (B) and (C) of the appeal memo. The same

are:

A. Whether in absence of any documentary evidence, it can be held that Kunja had title over the disputed land on the basis of the oral evidence

only ?

B. Whether on the basis of the oral evidence, Kunja had valid title over the properties ?

C. Whether in view of the admission of Kunja that he had executed the sale deed in favour of the plaintiff in respect of the suit land, title had

passed to the plaintiff ?

Heard Mr. Debasis Pattanaik, learned counsel on behalf of Mr. M.R. Mohanty, learned counsel for the appellant. None appears for the

respondents.

Mr. Pattanaik, learned counsel for the appellant submits that the suit land was purchased by Kunja in the name of Mena. After death of the

husband of Mena, she remained with Kunja. Kunja had valid title over the suit land. To press his legal necessity, Kunja alienated the suit land in

favour of the plaintiff by means of a registered sale deed for a valid consideration and thereafter delivered possession. He further submits if it is

construed that after death of Mena, Kunja had a share over the suit land, alienation to the extent of his share is valid.

Both the courts relying on the sale deeds, Ext.1 and Ext.A held that the suit property was purchased by Mena. Mena was in possession over the

suit property. Kunja was examined as D.W.1. In his deposition, he stated that the suit property was purchased by Mena. Thus Kunja has no title

over the same. Any alienation made by Kunja in favour of the plaintiff will not confer title. The submission made by Mr. Pattanaik that after death

of Mena, the property will go to other reversionary is difficult to fathom. Such a plea was not taken in the trial court. No issue was framed. For the

first time in the second appeal, this contention is advanced. Further there is no evidence on record that Mena died issueless. The substantial

questions of law are answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.