NARAHARI SAHU .DEAD. AND OTHERS vs MAHESWAR PRADHAN

Dr. A.K.Rath, J

Defendants are the appellants against a confirming judgment.

Plaintiff-respondent instituted the suit for declaration of right, title and interest over the suit land, eviction of defendants and recovery of possession.

Case of the plaintiff is that the suit land originally belonged to the wife of Dhaneswar Chouby. She died in the year 1963 leaving behind her son

Harishankar Chouby and three daughters. Harishankar and his sons alienated the suit land to the plaintiff by means of a registered sale deed dated

9.8.1966 and delivered possession. The plaintiff is in possession of the same. Since the defendants created disturbance, he filed Criminal Misc. Case

No.115 of 1966 under Sec. 145 Cr.P.C. The Magistrate declared the possession of the plaintiff. While matter stood thus, the defendants filed Title Suit

No.6 of 1970 in the court of the Subordinate Judge, Sambalpur for specific performance of contract. The plaintiff-Maheswar Pradhan was set ex

parte. Learned trial court decreed the suit holding, inter alia, that Harishankar was not competent to sell the entire properties. He had only 1/4th share

in the Streedhan property of his mother. It directed the defendants including the plaintiff to execute a registered sale deed in respect of 1/4th share of

Harishankar on payment of balance consideration amount and in the event the defendants fail to execute the registered sale deed within a period of

two months, the defendants shall get the sale deed executed through court. The decree was not executed. No sale deed was obtained by the

defendants on payment of balance consideration amount. The plaintiff is in possession of the suit land since 9.8.1966. On 6.5.1972, the defendants

claimed to have obtained a sale deed from Harishankar. In the year 1973, the defendants initiated a proceeding under Sec.145 Cr.P.C. The Magistrate

declared the possession of the defendants over the suit land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

The defendants entered contest and filed a written statement denying the assertions made in the plaint. According to the defendants, Harishankar

and his sons entered into an agreement for sale on 21.3.1964 in respect of Ac.30.91 decimals of land including the suit land and delivered possession.

They are in possession of the same. The sale deed in favour of the plaintiff is illegal. The decree passed in Title Suit No.6 of 1970 is binding on the

plaintiff. The plaintiff is not in possession over the suit land.

On the inter se pleadings of the parties, learned trial court struck ten issues. Parties led evidence, both oral and documentary, to substantiate their

case. Learned trial court decreed the suit. Unsuccessful defendants appealed before the learned District Judge, Sambalpur, which was subsequently

transferred to the court of the learned Addl. District Judge, Sambalpur and re-numbered as Title Appeal No.15/9 of 1988/89. The appeal was

eventually dismissed. It is apt to state here that during pendency of the appeal, appellants died, whereafter their legal representatives have been

substituted.

The second appeal was admitted on the following substantial question of law;

“Whether the suit in the present form is maintainable, in absence of any prayer to set aside the registered sale deed executed by Hari Shankar

Choubey and his sons on 6.5.1972 in favour of the defendants ?

Heard Mr. Prashant Kumar Khuntia, learned counsel for the appellants and Mr. Budhiram Das on behalf of Mr. N.C. Pati, learned counsel for the

respondent.

Mr. Khuntia, learned counsel for the appellants submitted that the suit is hit by res judicata. A part of the land is covered under the judgment passed

in T.S. No.6 of 1970, vide Ext.A. There is no prayer to set aside the sale deed dated 6.5.1972. After the decree passed under Ext.A, the matter was

amicably settled between the parties and the sale deed dated 6.5.1972 was executed. Plaintiff may stand or fall on his own case. Elaborating the

submission, he submitted that the plaintiff was a party in the earlier suit. The decree had attained finality. In the said suit, the plaintiff had not taken the

stand that the sale deed was executed by Harishankar in his favour in the year 1964. Further, the plaintiff was aware of the agreement to sell

executed between the vendor and the defendants. Notwithstanding the same, he purchased the suit land from the vendor Harishankar.

Per contra, Mr. Das, learned counsel for the respondent submitted that the area of the suit property in the earlier suit is different from the schedule

properties. The judgment shall not operate as res judicata.

Harishankar and his sons were in possession of the suit land. They alienated the same in favour of the plaintiff by means of a registered sale deed,

vide Ext.1. According to the defendants, Harishankar and his sons entered into an agreement on 21.3.1964 to sell Ac.30.91 dec. of land including the

suit land and delivered possession. Defendants filed T.S. No.6 of 1970 in the court of the learned Subordinate Judge, Sambalpur for specific

performance of contract against Harishankar and his sons. Maheswar Pradhan-plaintiff was defendant no.6 in the suit. The suit was decreed on

20.9.1971. Defendants had been directed to execute the sale deed in respect of 1/4th of the suit land of defendant no.1 in favour of plaintiff for a

consideration of Rs.2950/-. Though defendants assert that Harishankar and his sons had executed the sale deed on 6.5.1972 in their favour, but the

same had not been exhibited in the court below. Neither before the appellate court or this Court, the application for additional evidence to admit the

sale deed has been filed. In the absence of documentary evidence on record, it is difficult to hold that Harishankar and his sons had alienated the suit

land in favour of the defendants. Thus the suit is maintainable. Learned appellate court held that the entire suit area consists of Ac.30.91 decimals of

land. The plaintiff had purchased Ac.1.87 dec. of land, which is less than 1/4th share of Harishankar. Defendants have not acted in accordance with

the decree passed in the earlier suit. They claimed that Harishankar and his sons executed the sale deed on 6.5.1972. The sale deed had not been

produced or proved. Harishankar and his sons had not executed the sale deed dated 6.5.1972 as per the direction of the decree passed in T.S. No.6 of

1970. The decree still remains unexecuted. The plaintiff had purchased the suit land from Harishankar and his sons vide Ext.1. The defendants cannot

claim better title from the plaintiff. The defendants have not perfected title by way of adverse possession. There is no perversity in the said finding.

On comparison of the decree passed in T.S. No.6 of 1970, learned trial court came to hold that the suit land was not a part of the decree. The

principle of res judicata does not apply. The suit schedule property consists of nine plots. The area of plot no.236 is Ac.0.11 dec. whereas in the

previous suit, the same is Ac.0.04 dec. Similarly, the area of plot nos.240, 241, 278, 304, 308, 311 and 312 are Ac.0.12 dec., Ac.0.11 dec., Ac.0.19

dec., Ac.0.46 dec., Ac.0.44 dec., Ac.0.25 dec. and Ac.0.12 dec. respectively whereas in the previous suit, the same was Ac.0.46, Ac.0.45, Ac.0.25,

Ac.2.57, Ac.1.54 and Ac.0.12 in Khunti No.1. As it appears the plots mentioned in the suit schedule is a big patch of land. There is no pleading that

the area mentioned in the plots of the previous suit has been included in the present suit or the same are different. The matter in issue was not directly

and substantially in issue in the previous suit. Learned trial court is fully justified in holding that the suit land is not a part of the earlier decree and the

principle of res judicata does not apply. The substantial question of law is answered accordingly.

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