Lakhpati Sahu and others vs Bed Prakash Agrawal and another

DR.A.K.RATH, J.

Defendant nos.1 to 3 are the appellants against a reversing judgment.          Â

The plaintiff-respondent no.1 instituted the suit for declaration of title and permanent injunction. According to the plaintiff, defendant nos.1 to 3 sold

the Schedule-A land to him by means of a registered sale deed dated 29.01.1975 for a valid consideration vide Ext.1 and thereafter delivered

possession. But in the settlement R.O.R., the names of defendant nos.1 to 3 had been wrongly recorded.

The defendants entered contest and filed a written statement contending, inter alia, that Schedule-A land was not sold to the plaintiff. The land

described in the sale deed as well as in the schedule of the plaint does not tally. Â

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

case. The suit was dismissed. Feeling aggrieved, plaintiff filed T.A. No. 30/6 of 1990 before the learned Additional District Judge, Titilagarh. The

appeal was allowed.

The appeal was admitted on the following substantial question of law:-

“Whether contemporous facts and circumstances for drawing an inference that the assertion in the sale deed Ext.1 including the description of

property intended to be sold, are wrong ?â€​

Heard Mr. Budhiram Das, learned Advocate on behalf of Mr. N.C. Pati, learned Advocate for the appellants and Ms. Neha Sharma along with

Mr. Lalit Kumar Moharana, learned Advocates on behalf of Mr. S.P. Mishra, learned Senior Advocate for the respondents.

Mr. Das, learned Advocate for the appellants submits that the defendants had not sold Schedule-A land at any point of time. Plot number mentioned

in the sale deed and the disputed suit land does not tally. The plaintiff is not in possession of the suit land. R.O.R. has been published in the names of

the defendants. Â

Per contra, Miss. Sharma, learned counsel for the respondents submits that the description of the suit land in the sale deed and the plaint is same

except the plot number. The mouza, district, khata number, area and boundary described in the sale deed tally with the suit schedule land. Learned

appellate court rightly came to hold that the plaintiff has title over the suit land. To buttress her submission, she relied on the decision of this Court in

the case of Babaji Dehuri and others v. Biranchi Ananta and others, AIR 1996 Orissa 183.

Taking a cue from the decisions in Sheodhyan Singh and others v. Mst. Sanichara Kuer and others, AIR 1963 SC 1879 and Dinabandhu Sathi and

others v. Chintamoni Sahu and others, AIR 1971Orissa 215, this Court in Babaji Dehuri (supra) held:- “10. xxx xxx xxx Whenever there is any

misdescription of the property, the real intention of the parties has to be gathered from the surrounding circumstances as well as the sale deed. Though

it is not an inexorable principle of law, but ordinarily it is said that depending upon the facts and circumstances of each case, whenever there is a

conflict in the description of a property in a sale deed or any other instrument so far as plot number, khata number and boundaries are concerned,

generally speaking, the boundaries are to prevail.

On a cursory perusal of the sale deed dated 29.01.1975 vide Ext.1 as well as schedule of the plaint, it is evident that the mouza, district, khata

number, area and boundary described in the sale deed tally with the suit schedule land. But then, there is misdescription of plot number in the sale deed

and schedule of the plaint. On an analysis of evidence on record as well as pleadings, learned appellate court came to hold that the R.I. has

demarcated the land and submitted a report. The report has been marked as exhibit. From the said report, it is evident that the plaintiff is in possession

of Schedule-A land. Although in Ext.1 there is misdescription of the plot number, but the identity of Schedule-A land has been clearly mentioned as

per boundary given therein. The plaintiff has right, title and interest over the suit land. There is no perversity or illegality in the findings of the courts

below. The entry in the M.S. ROR neither creates nor extinguishes title. In view of the same, reliance placed on the R.O.R. is totally misplaced. The

substantial question of law is answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. Consequently, the suit is decreed. There

shall be no order as to costs.