Chinalu Kariadu vs Chinalu Jadiadu

This is a defendant''s appeal against reversing judgment.

The plaintiff-respondent instituted the suit for declaration of title, permanent injunction and recovery of possession in the event he is dispossessed

during trial of the suit. The case of the plaintiff was that the suit house originally belonged to one Chinalu Hadiani, wife of Chinalu Krishna. She

along with her husband adopted the father of the plaintiff. His father, Chinalu Bhuluga became the owner of the suit house. For legal necessity, his

father sold half of the suit house and kept other half with him. After death of his father, he, being the only son, succeeded to the suit house. The

defendant is the agnatic brother of his father. He had no right, title and interest over the suit house. He created disturbance in possession of the

plaintiff. The plaintiff initiated a proceeding under Section 144 Cr.P.C. in the court of the Executive Magistrate, Digapahandi, which was decided

against him. With this factual scenario, he instituted the suit seeking the relief mentioned supra.

The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that the

house was sold to his father by the father of the plaintiff in the year 1946. Since then his father was in exclusive possession of the same. In a family

partition, the suit house was allotted to his share. He was in possession of the same. The plaintiff had no right, title and interest over the suit house

since his father sold the remaining portion to one A.Dandasi by means of a registered sale deed. The plaintiff is residing in another house situated in

the village. A false case under Section 144 Cr.P.C. had been filed before the Executive Magistrate, Digapahani only to harass him.

On the inter se pleadings of the parties, the learned trial court framed four issues. Both parties led evidence, oral and documentary, to

substantiate their case. The learned trial court came to hold that the plaintiff had failed to establish his title over the suit property. He was not in

possession of the same. Held so, it dismissed the suit. Aggrieved by the judgment and decree of the learned trial court, the plaintiff filed appeal

before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 1st Additional District Judge,

Berhampur and renumbered as Title Appeal No.11/99(Title Appeal No.42/92 G.D.C.). The learned appellate court held that the plaintiff had title

over the suit house. The defendant had failed to prove his title. Held so, it allowed the appeal.

The Second Appeal was admitted on the following the substantial questions of law.

Whether the decree granting permanent injunction in favour of the plaintiff can be sustainable in view of the finding of the trial court that the

defendant is in possession of the suit house?

Whether the learned appellate court has entered into an erroneous legal approach in placing onus on the defendant for establishing his title,

particularly when the onus is clearly on the plaintiff to establish his title in respect of the suit house and not on the basis of any lacuna in the title of

the defendant?

Heard Mr.Soubhagya Kumar Samal, learned Advocate on behalf of Mr.Buddhadev Routray, learned Senior Advocate for the appellant. None

appears for the respondent.

Mr.Samal, learned Advocate for the appellant submits that father of the plaintiff sold half of the suit house to the father of the defendant in the

year 1946 by means of a registered sale deed. The plaintiff was not in possession of the suit property. The learned trial court came to hold that the

defendant had right, title, interest and possession over the suit land, but the learned appellate court up set the finding of the learned trial court on

untenable and unsupportable reasons. Elaborating the submission, he further submits that the learned appellate court came to hold that the plaintiff

was not in possession of the suit property. Thus the suit for permanent injunction is not maintainable.

The submission of Mr.Samal, learned Advocate for the appellant, is difficult to fathom. The defendant pleads that the father of the plaintiff sold

half of the suit house to the father of the defendant in the year 1946 by means of a registered sale deed. No such sale deed had been exhibited by

the defendant. The defendant had not substantiated his plea of title over the suit property. The learned appellate court has rightly held that the

defendant has no title over the suit property. Possession of the defendant over the suit house, if any, is unauthorized. The substantial questions of

law are answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.