Monday, 1 July 2019

Whether plaintiff can get decree for possession if there is difference in boundaries mentioned in sale deed and in evidence?

The settled position of law is that for the purpose, the plaintiffs have to stand on their own and they cannot take advantage of the weakness of the case of the defendants or their omissions. The lower appellate court has found the boundaries mentioned in the sale-deed of the respective parties to be not in order and that to, the same to have been differently stated in the evidence let in by the plaintiffs. The deed i.e. the Panchayat Patra, Ext-3 having been gone through, the boundaries as mentioned therein have been taken note of. From that, the lower appellate court has taken the view against the plaintiffs in establishing the nexus between the land as described in the sale deed which is the foundation of their case and the land in suit as stated in the plaint schedule. During hearing, although, it is stated that the appellants had filed the deed in question as has been referred to in the order of the settlement authority in one objection case so as to be taken as additional evidence, in my considered view even upon acceptance of the same as additional evidence, there would not have made any such improvement in their case so as to cast any such significant impact on the conclusion as regards non-establishment of the nexus as aforesaid. The lower appellate court has further gone to examine the documents i.e. the sale-deed in favour of defendant no. 1 to 5 with reference to the boundary of the land as finds mention therein. It has further found the oral evidence to be also inadequate to reach at a conclusion/finding regarding possession. It has been said that the boundaries by different parties are differently stated in their respective sale deeds which are inconsistent and that the evidence of possession as laid by the parties do not land them in a place so as to be favoured with a conclusive finding in that regard. On going through the evidence on record, this Court does not find any reason or justification to accord its disagreement with the conclusion arrived at by the learned appellate court that the sale-deeds of the parties do not properly relate to the stated field position.

IN THE HIGH COURT OF ORISSA

R.S.A. No. 239 of 2006

Decided On: 19.11.2018

 Durga Das Dey Vs. Jatindranath Giri 

Hon'ble Judges/Coram:
D. Dash, J.

Citation: AIR 2019 Orissa 45


1. This appeal under section 100 of the Code of Civil Procedure (for short, called as 'the Code') has been filed by the unsuccessful plaintiffs of the suit i.e. T.S. Nos. 56/62 of 2005/2006, after having been unsuccessful in the appeal under section 96 of the Code carried by them assailing the judgment and decree passed by the trial court, dismissing their suit.

2. 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 trial court.

The plaintiffs' case in short is that the suit land originally belongs to one Gobardhana Das and the same as such stood recorded in his name in the settlement of the year 1930. Gobardhana Das was survived by his two sons Narayan and Nandan. It is stated that during their lifetime, they had separated themselves both in mess and estate and each one had been in separate possession and enjoyment of the properties in accordance with their half share. It is the further case of the plaintiffs that Pranakrushna son of Narayan sold the suit land by registered sale-deed to the original plaintiff and accordingly, he was in possession of the same as its owner having right, title and interest which is now with the present plaintiffs. They also state that the other son of Nanda sold his half share to Lamikanta, the father of the defendant no. 6 and 7 by another registered sale-deed. There was a boundary dispute, so the original plaintiff and Laxmikanta had caused a demarcation of the land and then a deed had come into being and accordingly, each possessed their respective half as allotted therein. The original plaintiff had alleged that the defendant no. 1 to 5 without any right, title, interest and possession over the land involved in the suit caused problem in the his peaceful possession of the suit land when he wanted to repair his ridge. This incident gave rise to the cause of action to file the suit.

3. The defendant no. 1 to 5 while traversing the plaint averments stated that one Baidhar Das Adhikari had purchased the land in the year 1920 from Gobardhana Das by registered sale-deed and was in possession of the same. He sold the land to Narendra, the father of the defendant no. 1 to 5 by registered sale-deed dated 27.07.1940. Accordingly the possession being delivered, presently the defendant no. 1 and 5 are in possession of said land which has also been mutated. They claim to be paying land revenue to the State and their possession is stated to be open and to the knowledge of the plaintiffs. In that way, they also alternatively claim to have perfected possessory title over the land in suit. The sale-deed is stated to have been in connection with a loan taken by the ancestors of the defendants from the original plaintiff, who was a money lender.

The defendant no. 6 and 7 also denied the plaint averments and their case is that, their father Laxmikant purchased the entire land including the suit land described in Schedule -"Ka" of the plaint from Nandan and so they are in possession.

4. The suit had once been dismissed by the trial court. The plaintiffs then preferred an appeal which was allowed and the suit was remanded to the trial court with an observation that the sale-deed in favour of the defendant no. 1 to 5 is not valid. This was questioned by the defendant no. 1 to 5 by filing Misc. Appeal No. 236 of 1992 before this Court. The appeal stood disposed of by order dated 07.07.1994. The observation of the learned District Judge having been quashed, the suit was remanded to the court below without interference with that remand order of the learned District Judge. The trial court was directed to record finding as to the title in respect of the disputed land that it rests with whom and also to find out as who is in possession of the suit land as also to look into another aspect as to if the suit is hit under the provision of section 34 of the Specific Relief Act. It had been further directed that permission is so sought for to adduce additional evidence, be considered in accordance with law.

On remand, the defendant no. 6 and 7 filed written statement. The trial court proceeded to take a decision first on issue no. 4, i.e. whether the plaintiffs have any right, title and interest over the suit land. The answer upon evaluation of evidence in the touchstone of the pleading has been in the negative. The trial court has further held that the defendant no. 1 to 5 have failed to establish the identity of the plots of land transferred by Baidhar Das to their ancestors. Similarly, the trial court's finding has not gone in favour of the defendant no. 6 and 7 in so far as the title and possession of the suit land are concerned.

The unsuccessful plaintiffs having carried the first appeal to the court of learned District Judge, Balasore, the same came to be decided by the learned Ad-hoc Additional District Judge, Balasore in Title Appeal No. 56/62 of 2005/2004. The lower appellate court has dismissed the appeal. So the present move is to set aside the judgments and decrees of the courts below.

5. Learned counsel for the appellants submitted that the trial court has not gone to decide the suit in consonance with the order of remand as had been finally directed by this Court in Misc. Appeal No. 236 of 1992. He submits that when all the directions have not been complied with by the trial court; the same has also been overlooked by the lower appellate court. He further submitted that the trial court is not right in deciding the suit after remand without recasting the issues and framing specific issues strictly in consonance with the order of remand. It was submitted that although the said contention had been raised before the lower appellate court, the same has not been touched and considered in its true perspective and therefore, the ultimate result of dismissal of the suit cannot stand. He further submitted that the lower appellate court has erred in law in disposing the appeal without duly considering the application filed by the plaintiff under order 41 rule -27 of the Code.

6. In the present suit, the plaintiffs in order to get the reliefs as have been prayed for are under definite legal obligation to establish their title over the suit land and accordingly, the right to possess the same without any interference from the defendants.

The settled position of law is that for the purpose, the plaintiffs have to stand on their own and they cannot take advantage of the weakness of the case of the defendants or their omissions. The lower appellate court has found the boundaries mentioned in the sale-deed of the respective parties to be not in order and that to, the same to have been differently stated in the evidence let in by the plaintiffs. The deed i.e. the Panchayat Patra, Ext-3 having been gone through, the boundaries as mentioned therein have been taken note of. From that, the lower appellate court has taken the view against the plaintiffs in establishing the nexus between the land as described in the sale deed which is the foundation of their case and the land in suit as stated in the plaint schedule. During hearing, although, it is stated that the appellants had filed the deed in question as has been referred to in the order of the settlement authority in one objection case so as to be taken as additional evidence, in my considered view even upon acceptance of the same as additional evidence, there would not have made any such improvement in their case so as to cast any such significant impact on the conclusion as regards non-establishment of the nexus as aforesaid. The lower appellate court has further gone to examine the documents i.e. the sale-deed in favour of defendant no. 1 to 5 with reference to the boundary of the land as finds mention therein. It has further found the oral evidence to be also inadequate to reach at a conclusion/finding regarding possession. It has been said that the boundaries by different parties are differently stated in their respective sale deeds which are inconsistent and that the evidence of possession as laid by the parties do not land them in a place so as to be favoured with a conclusive finding in that regard. On going through the evidence on record, this Court does not find any reason or justification to accord its disagreement with the conclusion arrived at by the learned appellate court that the sale-deeds of the parties do not properly relate to the stated field position.

For the aforesaid, the submission of the learned counsel for the appellants fails and this Court finds that no substantial question of law surfaces in the case for being answered in the appeal. In that view of the matter, the appeal does not merit admission.

7. Resultantly, the appeal stands dismissed and in the facts and circumstances without cost.


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