Sapani Muduli vs Harekrushna Muduli (since dead) through L.Rs and others

Plaintiff is the appellant against a confirming judgment in a suit for declaration that the ROR is wrong and permanent injunction.

The case of the plaintiff was that Rama Muduli had three sons, namely, Bidya, Budhi and Bhagaban. Bidya died issueless. Budhi died leaving

behind his son Jayee. Jayee died leaving behind his son Lochan. Bhagaban died leaving behind his son Chain. The plaintiff is the son of Chain. The

suit land appertaining to Hal Khata No.40, Plot No.693, Ac.0.234 dec. corresponds to Sabik Khata No.98, Plot no.479 Ac.0.449 dec. Sabik

Plot No.479 belonged to the family of the plaintiff. The same was originally recorded in the name of Bidya son of Rama as per ROR of the year

1885. The said property was recorded in the name of Bidya and Budhi as per ROR of 1912 although the same was enjoyed by all the three

brothers including Bhagaban. As Bidya died issueless, the said property was enjoyed by Budhi and Bhagaban. After death of Budhi, his son Jayee,

transferred Ac.0.315 dec. in favour of Hadu. After death of Bhagaban, his son Chain was in possession of Ac.0.234 dec. land. After his death, his

only son, the plaintiff is in peaceful possession of the suit land as his bari. The defendants and their father Digambar have no right title, interest and

possession over the suit land. They created disturbance in his possession. With this factual scenario, he instituted the suit seeking the reliefs

mentioned supra.

Defendants filed a written statement denying the assertions made in the plaint. According to the defendants, the genealogy appended to the plaint

is not correct. It was pleaded that Siva had two sons, namely, Bhagaban and Rama. Chain is the son of Bhagaban. Sapani is the son of Chain.

Rama had two sons, namely, Bidya and Budhi. Jayee was the son of Budhi. Lochan was the son of Jayee. Bidya died leaving behind his son

Bhikari. He died about 60 years back leaving behind his widow Saradi. His son Bahudi who pre-deceased his mother Saradi. The suit land fell to

the share of Bidya. After the death of Bidya, his son Bhikari was the owner in possession of the suit land. After the death of Bhikari, his widow

was in possession of the suit land. She sold the said land and other properties to the mother of the defendants orally in the year 1948. The mother

of the defendants after purchasing the suit land possessed the same and accordingly ROR was issued in her favour. In the year 1983, the

defendants were separated from each other. The suit land fell to the share of defendant no.2. It was further pleaded that they have acquired title to

the suit land by way of adverse possession.

On the inter se pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary. Learned trial court

came to hold that the genealogy furnished by the plaintiff is not correct. Defendants are in possession of the suit land. Plaintiff has no right, title and

interest and possession over the suit land. The ROR is correct. Held so, it dismissed the suit. Unsuccessful plaintiff filed T.A No.10/17 of 1989/94

in the court of the learned Addl. District Judge, Bhubaneswar, which was eventually dismissed.

The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.1 to 4 of the appeal memo. The same are -

Whether the finding that plaintiff acquired no title to the suit land by survivorship and succession is unsustainable being contrary to the finding

that Bidya, Budhi and Bhagaban are all sons of Rama?

Whether the finding that plaintiff is not in possession of the suit land is liable to be set aside being based on nonconsideration of evidence of

D.W.2 ?

Even accepting the finding of mere possession of the suit land with defendants without title, whether the plaintiff is entitled to a decree for

recovery of possession under Order 7 Rule 7 CPC ?

Whether 1962 ROR in the name of defendants'' mother in respect of suit land is inoperative against the plaintiff''s undivided interest in the suit

homestead ?

Heard Mr. S. Mantry, learned counsel for the appellant. None appeared for the respondents.

Mr. Mantry, learned counsel for the appellant submitted that defendants failed to prove oral sale from daughter-in-law of Bidya. Saradi is not

widow of Bidya, but his daughter-in-law. D.W.2 in the cross-examination stated that the plaintiff is in possession of the suit land. The defendant

failed to prove acquisition of title by way of adverse possession. Therefore, the finding in the absence of plaintiff''s title is wholly misconceived.

D.W.1 stated that there is no document to show how his mother was recorded in respect of the suit land. The ROR neither creates title nor

extinguishes title. He further submitted that admittedly the total suit plot is ancestral undivided joint family Bari land of three sons of Rama Muduli,

namely, Bidya, Budhi and Bhagaban. If Saradi''s oral sale or relinquishment or adverse possession (defendants'' mother) is not proved, then

Bidya''s undivided share devolves on Budhi and Bhagaban in equal share in the suit plot. The evidence on record shows that Budhi''s son Jai sold

western portion measuring Ac.0.315 dec. to an outsider, Hadu Muduli who has been duly recorded in respect of his purchased land in 1962

ROR. Therefore, the suit land measuring Ac.0.234 dec. which is the balance area out of the total sabak suit plot No.479 Ac.0.549 dec. on the

east is the property of the plaintiff. He further submitted that the learned appellate court has not believed the evidence on possession of P.Ws.1 to

4 and D.Ws.1 to 6 in para-10 with the finding ""there is thus oath against oath"". The plaintiff''s title over the suit land has been well proved.

Possession follows his title. Further, plaintiff''s possession has been admitted by defendants witness but disturbed during pendency of second

appeal by replacing green fence with stone walls on three sides of suit plot on 9.11.2001 preventing plaintiff''s entry from his dwelling house to his

Bari land in spite of the order of this Court dated 30.10.2001. Plaintiff''s Misc. Case No.701 of 2001 under Order 39 Rule 2-A CPC against

defendants for violation of injunction was not decided due to order of early disposal of the second appeal.

It is apt to state here that during pendency of the appeal an application under Order 41 Rule 27 CPC was filed to admit original tenancy ledger

of 1885 settlement and the original ROR of 1912 settlement as exhibits.

On scanning the evidence and pleadings both the courts below concurrently held that genealogy furnished by the defendant is correct. It held

that Rama had three sons, namely, Bidya, Budhi and Bhagabana grandfather of the plaintiff. Bidya died leaving behind his son Bhikari. Bhikari died

leaving behind his widow Saradi and a son- Bahuda who pre-deceased his mother. It was further held that rent receipt vide Ext.2 does not relate

to the suit land. Defendants are in possession of the suit land. P.W.1 in his cross-examination has admitted that there is a fence in between his

house and the house of the defendants. The suit land has been separated by a fence. P.W.3 in his cross-examination has stated that defendants

have constructed a cowshed over a suit land. The evidence of defendant no.2 (D.W.1) reveals that he is in possession of the suit land. The suit

land has been recorded in the name of the mother of the defendants in the ROR of the year 1962. Defendants used to pay rent. Ext. 2 does not

relate to the suit land. Both the courts below concurrently held that the plaintiff has no title over the suit land. He has no right, title and interest over

the same.

In the case of Shri Raja Durga Singh of Solon Vrs. Tholu and others, AIR 1963 SC 361, the apex Court held that where a new entry is

substituted for an old one it is that new entry which will take the place of old one and will be entitled to the presumption of correctness until and

unless it is established to be wrong or substituted by another entry. There is no perversity or illegality in the findings of the courts below. The

substantial questions are answered accordingly.

Resultantly the appeal fails and is dismissed. There shall be no order as to costs.