Nilambara Mahakur vs Surendra Mohapatra; And Upendra Mohapatra

D.Dash, J

The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment & decree dated 30th August, 2018 & 12th September, 2018 respectively passed by the learned Additional District Judge, Patnagarh in R.F.A. No.21 of 2014.

The Appellant, as the Plaintiff, had filed Civil Suit No.111 of 2010 in the Court of the learned Civil Judge, Sr. Division, Patnagarh. The suit is for declaration of his right, title and interest over the suit land and confirmation of possession with further relief of injunction as against the Respondents (Defendants) declaring the record of right of Holding No.372/126 standing in the name of Sripat Mohapatra, the father of Respondents 1 & 2 (Defendants 1 & 2) as void.

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.

Plaintiff’s Case:-

The suit land, as described in the schedule of the plaint under Holding No.372/126 bearing Plot No.152/3608 and 152; in total measuring Ac.0.102 decimals was was originally in the Holding No.309 and standing recorded in the name of Rahi Mahakud, Makaru Mahakud and Balmakund Mahakud in the current settlement record of right. All the three recorded tenants are dead. The Plaintiff and Defendants 3 to 8 are in possession of that land on their right, title and interest. The Plaintiff, being the legal heir of one of the recorded tenants, claims to be the owner in cultivating possession over the suit land. It is said that on 03.10.2010, the Plaintiff when had been to the suit land for inspection of the crops grown by him, the Defendants 1 & 2 suddenly came there and declared that the suit land belonged to them as it has been recorded in the name of their father. They, therefore, declared that they would not allow the Plaintiff to reap the crops as he had no right, title and interest over the suit land. The Plaintiff then made enquiry about the truth of the said statements of Defendant Nos.1 & 2. The Plaintiff, to his utter surprise, found that the land under Plot No.372/126 has been divided into two plots, i.e, 152/3608 & 152 and recorded in the name of the father of Defendants 1 & 2. The Plaintiff thus came to know that the father of Defendants 1 2 somehow managed to get the suit land recorded in his name by playing fraud and mischief without the knowledge of the Plaintiff and that the Defendant Nos.1 & 2, have manufactured some documents for the said mutation when there was never any physical transfer of the suit land. The Plaintiff, therefore, filed the suit.

The Defendants 1 & 2 denied the factum of possession of the land under Holding No.309 by the Plaintiff and Defendants 3 to 8 having their right, title and interest. It is the case of the Defendants that the suit land was the joint ancestral property. Daman, Makaru, Chhelia and Balmukund were the recorded tenants in respect of the suit land as per the record of right of the year 1936. Chhelia died leaving no issue. After the death of Chelia, there was dissension in the family for which the three brothers, namely, Daman, Makaru and Balmukund did not like to continue in joint mess and they affected partition in metes and bounds in respect of their property including the suit land in order to avoid future litigation. It is stated that in that partition, the suit land including other land hand fallen in the share of Daman and he was in possession of the same during his lifetime as its owner with his wife, Rahi and daughter, namely, Anandabati. The partition is stated to have taken place sometime in the month of Falguna, 1972. The land under said Holding No.74 of 1936 settlement corresponding to Holding No.309 of 1976 settlement was recorded in the name of Rahi, Makaru and Balmukund jointly. All are dead. Anandabati, the daughter of Daman has also expired leaving her only daughter Sumitra, who was staying with her husband at Village-Sibtala. After the death of Daman and Rahi, her daughter Anandabati became the absolute owner of the suit land and in the year 1976, she has sold the land under Schedule-A of the written statement to one Nrupamani Patel under a registered sale deed for a consideration of Rs.2,500/- on 03.01.1976 and pursuant to the same, delivery of possession was also given to the vendee on the same day. Nrupamani remained in possession of the same from the time of purchase and as Nrupamani was a minor, her father Tankaj Patel had given the consideration money and thereafter for legal necessity, the above property has been sold to Sripat Mohapatra, the father of Defendants 1 & 2 on 30.07.1976 for a consideration of Rs.2,500/-. Sripat was in possession of the said land from the date of his purchase. Similarly, Anandbati, for her legal necessity, sold the land under Schedule-B of the written statement by way of registered sale deed dated 14.04.1976 and since that day, Sripat remained in exclusive possession of the both Schedule-A & Schedule-B land in total measuring area of Ac.0.98 decimals having the exclusive right, title and interest thereon. Though it is stated that Anandbati had sold the lands for benefit and welfare of the family and that had already been mutated in the name of Sripat, who was in possession of the same till his death and after him, the Defendants 1 & 2 are possessing the same. It is further stated that they remained in open, peaceful and continuous possession of the suit land and in the alternative, they have acquired right, title and interest by way of adverse possession. They also state that Anandbati had sold some lands to Baisakhu Naik and Ghasi Bagarty when Indu (Defendant No.5), the widow of Makaru had also sold some lands to Gathel Bangula of Village-Bhainsa, who have not been impleaded as parties.

On the above rival pleadings, the Trial Court has framed as many as eight issues. The Trial Court, dealing with Issue No.V as regards the claim of the Plaintiff to be the having right, title and interest over the suit land and his right to possess the same, upon examination of the evidence and their evaluation in the backdrop of the rival pleadings, has finally held that although there was no partition of the properties in metes and bounds amongst the parties, there was severance of status and they have sold the portions of the suit holding to different persons from out of the share of Daman and Makru. Thus, the Trial Court has held the Plaintiff to be having no right, title and interest to claim the suit property and he is not entitled to possess the same. Then, the consolidation ROR of holding No.372/126 standing in favour of Sripat, the Trial Court has answered in favour of its sustainability negative. Practically, these findings have led to the dismissal of the suit.

The unsuccessful Plaintiff, having carried the Appeal under Section 96 of the Code, has failed in his attempt.

Mr.A.P. Bose, learned counsel for the Appellant submitted that the Courts below are not correct in dismissing the suit on the face of their finding that there was no partition of the joint ancestral properties amongst them in metes and bounds, the suit ought not to have been dismissed in refusing to grant the reliefs to the Plaintiff, as prayed for, simply on the ground that there was severance of status between the parties vis-à-vis their joint ancestral properties. He further submitted that in the present case, although there was no specific prayer, the Courts below, by moulding the relief, ought to have declared the sale deeds (Exts.E, F & H) as valid to the extent of the share of vendors and invalid to the extent of the land beyond the share of the vendors. He, thus urged for admission to the Appeal to answer the above as the substantial questions of law.

Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties, as placed.

The evidence on record clearly shows that the suit land, as per the 1936 settlement record of right as well as the current record of right, was the joint ancestral properties of the Plaintiff’s family. The Defendants 1 & 2 have asserted that despite such joint recording of the suit land in both the settlements, the ancestral properties of the Plaintiff including the suit land had been partitioned in metes and bound. It reveals from the registered sale deed dated 03.01.1976 that Anandabati had sold the suit land to Nrupamani Patel and delivered possession of the same to her, who was then a minor. The father of Nrupamani Patel, namely, Tankaja Patel and his son Nrupamani wanted to raise some funds in order to meet their legal necessity. So, said Schedule-A land as in W.S. was sold on 30.04.1976 for a consideration of Rs.2,500/- to Sripat and possession of the same was delivered in favour of Sripat as indicated therein. Defendants 1 & 2 state that Anandabati, being the only legal heir and successor became the absolute owner in possession of the share of land of Daman. Anandabati, being in need of money to purchase agricultural lands and meet the household expenses, sold away the land under Schedule-B of W.S. to Sripath, the father of Defendants 1 & 2 by registered sale deed dated 14.04.1976. The two sale deeds; Ext.H executed by Anandabati in favour of Rupamani Patel and Ext.E executed by Tankaj Patel in favour of Sripat Mohapatra are not only registered but also more than thirty years old. The recitals of said sale deeds are to the effect that the said sold land was her share of land and that had come to the hands of her father after partition, which she has sold after the death of her father Daman. The Courts below, cumulatively viewing the evidence both oral and documentary on record although have concurrently found that though the Defendants 1 & 2 have failed to prove that there was partition of the joint ancestral properties of the Plaintiff, yet, have held that there was severance of status between the parties and the jointness had been completely put to an end. It reveals from the evidence, as discussed by the Courts below, that there was no challenge from the side of the Plaintiff to the evidence on record that the parties were living separately for convenience and utilizing the income from those properties remaining in their respective possession.

Learned counsel for the Appellant, in course of hearing, has not been able to point out that any such material evidence on record, has overlooked or bypassed by the Courts below. It has also not been placed that the Courts below have read something extraneous into the evidence and had those been correctly done, the finding would have been otherwise and thus, the present finding is the outcome of perverse appreciation of evidence.

In view of that and also in the absence of evidence in support of the case of the Plaintiff; the Courts below, having dismissed the suit filed by the Plaintiff specifically seeking a declaration of right, title and interest over the suit property, the same is not liable to set aside.

For all those aforesaid, the submission of the learned counsel for the Appellant that the Appeal merits admission to answer the substantial questions of law, as pointed out above, cannot be countenanced with.

Resultantly, the Appeal stands dismissed with cost.

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