Pitambar Majhi (since dead) through L.Rs. and others vs Smt. Dosumi Majhi and others

Defendants are the appellants against a confirming judgment.

Panchu Majhi, predecessor-in-interest of respondent nos.1 and 2, as plaintiff instituted the suit for recovery of possession and mesne profit. The

case of the plaintiff was that the suit land was the self-acquired property of his father, Raghu Majhi. They were in possession of the suit land. One

Lambu Majhi, a distant relative, was staying with him. He had no title over the suit land. But then, the suit land was jointly recorded in the final

ROR. Lambu died issueless. Defendant no.1 was brought by his father to help him in cultivation. He had no right over the suit land. While the

matter stood thus, his father died in the year 1972. Taking advantage of his innocence, the defendant nos.2 to 4, sons of defendant no.1, created

disturbances. They filed Mutation Case No.1018/79 before the Tahasildar, Kodinga to mutate the land in their favour. No enquiry was made.

Without considering the matter in its proper perspective, the Tahasildar allowed the case on 8.12.79. Pursuant to the order passed by the

Tahasildar, Kodinga, khata no.89 had been mutated in favour of defendant no.1 as khata no.108/120. The order passed by the Tahasildar is

illegal. It was further pleaded that the defendants were in wrongful occupation of the suit land and appropriating the crops for last two years. With

this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

The defendants filed written statement denying the assertions made in the plaint. They furnished the following genealogy. Mangan Majhi Gopi

Ghasi @ Kola Lambu Raghu Pitambar Aetu (died issueless) (D-1) Panchu (Plaintiff) Puran Dolopathi Horibandhu Gosu (D-2) (D-3) (D-4)

According to the defendants, the suit land was the selfacquired property of Gopi, father of Lambu. Gopi and Ghasi are two brothers being sons of

Mangan. They were living in separate mess. Lambu was bed ridden during settlement operation. He requested Raghu, father of the plaintiff, to

attend the settlement camp. Raghu played fraud and managed to get his name included in the ROR. It was further pleaded that the suit property

was not the self-acquired property of Raghu. Raghu was not in possession of the suit land. As Lambu had no son, he was being looked after by

defendant no.1. Defendant no.1 with his family stayed in the house of Lambu. Lambu had given 4 khiaris of land to the plaintiff, viz., plot nos.166,

169 and 170 and a portion of plot no.59. Plaintiff sold the same to different persons. Lambu had allotted plot nos.169 and 170 of khata no.89 to

defendant nos.2 and 3. The remaining lands were allotted to defendant no.1. Defendant no.1 and his sons are in peaceful possession of the suit

land openly, peacefully and with the knowledge of the plaintiff and as such perfected title by way of adverse possession.

Stemming on the pleadings of the parties, learned trial court struck seven issues. To substantiate the case, plaintiff had examined three witnesses

and on his behalf one document had been exhibited. Three documents had been exhibited by the defendants. Learned trial court came to hold that

plaintiff had title over the suit property. Defendants had failed to substantiate the plea of adverse possession. Held so, it decreed the suit. The

defendants filed T.A. No.36 of 1986 before the learned District Judge, Koraput, Jeypore, which was eventually dismissed. It is apt to refer that

during pendency of the suit, the plaintiff died. The legal heirs had been substituted. During pendency of the second appeal, appellant no.1-

defendant no.1, died. The legal heirs had been substituted.

The second appeal was admitted on the substantial questions of law enumerated in ground nos.2, 4, 5, 6 and 8 of the memorandum of appeal.

The same are:

For that the learned lower appellate court having rightly held that the plaintiffs had signally failed to prove that actually Raghu made acquisition

of the suit property in any manner, erred in law in not dismissing the plaintiff''s suit. Further, the learned lower appellate court erred in decreeing the

suit only on the basis of an entry in Ext.1 showing the suit lands to be jointly recorded in the names of Lambu and Raghu. The position of law is

well settled that an entry in ROR never creates title in the property. This error of law had vitiated the impugned decision.

For that the learned lower appellate court grossly erred in law in rejecting the documentary evidence adduced on the side of the defendants in

Exts.A, B and C which conclusively prove and establish that the suit lands belong to the defendants and were in their possession and enjoyment. It

may be noted that Ext.A is a copy of the ROR after correction of the names in the mutation case which was contested by the plaintiffs and further

the order passed by the Mutation Officer dated 8-12-79 in respect of the suit lands was never challenged by the plaintiff thereafter. It may also be

stated that the learned lower appellate court erroneously excluded the documentary evidence in Ext.C, namely, the statement of the plaintiff

wherein the title and possession of defendant no.1 over the suit lands were admitted, on the reasoning inter alia that in Ext.C the plaintiff had affixed

his L.T.I. to the statement. It is submitted that the certified copy of the deposition is a public document which was a part of a proceeding before the

settlement authority.

For that the learned courts below grossly erred in law in decreeing the plaintiffs'' suit on the ground inter alia that the defendants had failed to

prove and establish the case set up by them. The position of law is well settled that the plaintiff shall stand or fall on the merits of his own case and

will not succeed on the weakness of the defendant''s case.

For that the learned courts below had failed to note that on the own showing of the plaintiff himself in the petition filed by him on 20-11-84,

defendant no.2 was entitled to the suit property jointly with him. It is also stated in the petition that some of the lands were allotted to another

person who was not a party to the suit. In view of the assertions made in the petition, the plaintiffs'' suit was not maintainable and therefore should

have been dismissed.

For that the decisions of the learned courts below are vitiated in law for excluding the documentary evidence, Exts.A, B and C, on untenable

grounds and for not taking into consideration the clear-cut admissions as stated earlier. Whether the courts below have decreed the suit making out

a third case for the plaintiffs which was never pleaded by them.

Heard Mr. Maharshi Mohapatra, learned counsel on behalf of Mr. Dayananda Mohapatra, learned counsel for the appellants and Mr.P.V.

Balakrishna, learned counsel for the respondents.

Mr. Mohapatra, learned counsel for the appellants, submitted that the suit property is the self-acquired property of Gopi, father of Lambu. Gopi

and Ghasi are brothers. They were separate in mess. Since Lambu was bed ridden during settlement operation, he requested Raghu to attend the

settlement camp. Raghu clandestinely recorded the suit land in his favour. Lambu had allotted the land to the plaintiff as well as defendants. Lambu

died issueless in the year 1964. The defendants initiated mutation proceeding to get the land recorded in their names which was allotted on

8.12.79. The same was allowed. He further submitted that learned lower appellate court having come to a conclusion that the plaintiffs had signally

failed to prove that actually Raghu made acquisition of the suit property in any manner, erred in decreeing the suit placing reliance on the entry

made in the ROR, Ext.1. The ROR neither creates title nor extinguishes title. Learned lower appellate court erred in law in rejecting the

documentary evidence adduced by the defendants in Exts.A, B and C which conclusively prove that the suit lands belong to the defendants. The

mutation case was contested by the plaintiffs. The order dated 8.12.79 passed by the Mutation Officer in respect of the suit lands had attained

finality. Learned lower appellate court erroneously excluded the documentary evidence in Ext.C, namely, the statement of the plaintiff wherein the

title and possession of defendant no.1 over the suit lands were admitted and assigned reason that in Ext.C the plaintiff had affixed his L.T.I. to the

statement. The finding of the learned lower appellate court is perverse. The certified copy of the deposition is a public document.

Per contra, Mr. Balakrishna, learned counsel for the respondents, submitted that both the courts concurrently held that the plaintiffs had title

over the suit property. Defendants had failed to prove that they have acquired title by way of adverse possession. There is no perversity in the said

finding.

Learned appellate court came to hold that the learned trial court had not discussed the evidence on record and decreed the suit without

assigning any reason. It concurred with the conclusion arrived at by the learned trial court. It scanned the evidence on record and held that the

plaintiff had failed to substantiate his plea that the suit land is the selfacquired property of his father. Evidence of P.W.1 is self-contradictory. The

evidence of P.W.1 is untrustworthy and not reliable. With regard to acquisition of the property, it further held that oral evidence adduced by the

plaintiff are not satisfactory. Placing reliance on Ext.1, ROR, it held that Lambu and Raghu were joint tenants. One of the joint tenants died

issueless. Thus the other tenant had absolute right over the suit property. There is no evidence on record that defendant no.1 is the brother of

Raghu. The defendants had failed to prove that Lambu had orally gifted the suit land in favour of defendant no.1. The evidence of P.W.2 is equally

shaky and the evidence of P.W.3 is insufficient to prove the claim of title by the plaintiffs on the basis of self-acquisition made by Raghu. However,

evidence of P.Ws.2 and 3 proves that Lambu and Raghu and thereafter Panchu were in possession of the property. Defendant no.1 was in

possession of the property along with the plaintiff after death of Raghu. Ext.1 raises the presumption in favour of joint title of Lambu and Raghu.

Lambu died issueless. After his death, the property vested with the other joint tenants, i.e., sons of Ghasi. Exts.A, B and C does not establish the

right and title of the defendants nor it dislodges or takes away the correctness of the entry in Ext.1.

Learned appellate court disbelieved the evidence of witnesses examined on behalf of the plaintiff. It also discarded Exts.A, B and C on

untenable and unsupportable grounds. Further the judgment suffers from internal inconsistencies. It is trite law that settlement record of right neither

creates title nor extinguishes title. The plaintiff shall stand or fall on the merits of his case. Though, the defendants pleaded that Raghu, Pitambar and

Aetu are three brothers being sons of Ghasi, but they had not adduced any evidence.

In view of the same, the impugned judgments are set aside. The appeal is allowed. The matter is remitted back to the learned trial court.

Parties are at liberty to adduce further evidence. Learned trial court shall dispose of the suit within a period of six months from the date of

production of a certified copy of the judgment. In view of the fact that the matter has been remitted back to the learned trial court for de novo trial,

this Court refrains from answering the substantial question of law.