Madhu Pradhan Vs. Nara Kanhar and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/533599
SubjectCivil
CourtOrissa High Court
Decided OnSep-01-1994
Case NumberSecond Appeal No. 306 of 1984
JudgeD.M. Patnaik, J.
Reported in1994(II)OLR633
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 103
AppellantMadhu Pradhan
RespondentNara Kanhar and ors.
Appellant AdvocateB.M. Mohanty, J.K. Bastia, R.K. Nayak, B. Das and R.N. Panda
Respondent AdvocateB.B. Ratho, P.K. Bhuyan, M.K. Mishra, R.P. Mohapatra, A.K. Satpathy and D.K. Biswal, for Respondent Nos. 3 and 6 to 9 and C.R. Mohanty and A.K. Das, for Respondents 2/a to 2/d
DispositionAppeal allowed
Cases ReferredManiar Ismail Sab and Ors. v. Meniar Fakruddin and Ors.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 7. it was next urged that when the plaintiff filed the suit for recovery of possession, it was incumbent on the part of the plaintiff to prove both title as well as possession within 12 years. this having not been done, it can be said that the plaintiff did lay foundation for the title in respect of the property as well as the record-of-rights. therefore, have no other alternative but to hold that the defendants failed to prove adverse possession and therefore, did not prescribe any title to it.d.m. patnaik, j.1. plaintiff is in appeal before this court against the reversing judgment of the lower appellate court in a suit for declaration of title and recovery of possession.2. the dispute relates to 9 plots measuring a total area of ac. 0. 045 decs plaintiff claims that his lather gouranga was recorded in respect of these lands in the record- of- rights of the 1923-24 settlement. after his death and long before the present suit there was partition in the family among the three brothers of which plaintiff is t e eldest one and his case is that in that partition the suit property fell to his share and ha has been in possession of the suit land in his own right, title and interest till 1972 when the defendants 7 and 8 and his other aasociates created trouble in his possession for which a case under section 145, cr pc was initiated at his instance in misc. case no. 43 of 1972 which was ultimately decided against him and the defendants 1 and 3 to 9 were declared to be in possession of the land and there- fore, he filed the suit.3. though the defendants filed a joint written statement, while denying the material facts pleaded in the plaint, it was specifically pleaded by defendants 7 and 8 that the suit lands belonged to their ancestors and after them, they possessed the same it was alternatively claimed that in case title was found with them, by virtue of their adverse possession for more than the statutory period, they acquired title to the property. they claimed for dismissal of the suit.at the same time, they made a counter claim in the written statament that in the r. o. r. of 1976 settlement, the suit land was wrongly recorded in the name of the plaintiff which should be declared as invalid and it should be directed that the defendants should be recorded in respect of the suit land in the said r. o. r.4. the lower court after analysing the evidence on record and considering the nature of the resptctive cases of the parties found that there was previous partition end this suit land fell to the shara of the plaintiff and he had title to the suit and that the defendants have no title to the property. he dacreed the plaintiff's suit. in the appeal by the defendants, the lower appellate court, on the other hand, reversed that finding of possession so recorded by the trial court.5. heard mr. s.n. mohanty, learned counsel for the appellants and mr. 8. s. ratho, learned counsel for the respondents.it was urged by mr. ratho that villagers' names are found to be different as mentioned in the two record-ofrights, exts. 1 and 2, and therefore, it is not known to which land plaintiff is claiming for his title.this cannot be accepted in view of the admission of the defendants in the written statement in para-3 with regard to para-2 of the plaint stating that there was amalgamation of the two revenue village to one villages.6. it was further submitted by referring to the evidence of pw 4, the amin commissioner that the plot numbers as recorded in the record-of-rights of 1923-24 settlement did not correspond to the plot numbers of the current settlement. it may point out that both the courts below have given a finding that the pw 4's evidence is of no use, and neither of them relied on the evidence to judge the case of the respective parties either way.it was strenuously urged by mr. ratho that the plaintiff admitted that the area comprising the suit land was an unserveyed area and, therefore, there could not have been any plot number as claimed by the plaintiff, and that this has been so held by the lower appellate court.i may point out that the learned lower appellate court completely went wrong in observing this. it is abundantly clear from the pleadings of the parties that there was no dispute with regard to the identity of the suit land, in the written statement, the defendant came forward with specific plea that the suit land appertaining to the plots in the schedule which related to the last settlament operation in 1976 were their ancestral lands, the defendants were tree to say that the disputed land did not relate to those plot numbers and that they relate the some other plot nurnbers. in the obseen if any dispute the identity of the numbers/it was not necessary on the part of the learned lower appellate court to give a finding that the plot numbers did not tally.7. it was next urged that when the plaintiff filed the suit for recovery of possession, it was incumbent on the part of the plaintiff to prove both title as well as possession within 12 years. this proposition is not correct in the sense that the pleintiff filed the suit on the basis of title and this court in the case of naran behera (dead) and anr. v. mohan jethi and ors. reported in air 1985 ori. 40. held that in such a case, the plantif is only to prove his title and not possession. the plaintiff filed the suit on the basis of title and he is not required to show possession within 12 years vide decision reported in air 1975 ori. 165 saura bauri and ors. v. subudhi laxminarayan and ors..8. it was urged that the plaintiff though filed the suit on the basis of proprietary title, he did not lead any evidence with regard to foundation of his title and it was further urged that such foundation had to be laid even for his being recorded in the r. o r. of 1976 settlement under ext. 2.9. to this, i may point out that the plaintiff's suit is on the basis of his succession to his father's property i. e. the property of gouranga sahu. the plaintiff himself deposed in his dvidence that he succeeded to the father's property in respect of which the three brothers were the co-sharers. they made amicable partition among themselves and in that partition, the property in dispute fell to his share and that he has been in posession of the' same since then. this foundation having been laid, it was incumbent on the part of the defendants to displace this by saying that gouranga was not the owner of the land or that even if the plaintiff was the successor to the property of gouranga, his title to the property was lost by way of acquisition of titte by way of adverse posses-ion by the defendants. this having not been done, it can be said that the plaintiff did lay foundation for the title in respect of the property as well as the record-of-rights.vol. xxvii (1961)clt short note no. 120 (gobinda panda after him, his wife baurani pandiani v. gobinda panigrahi and ors., was cited in support of his contention. but having gone through the decision, i do not find that the sama is applic3bl3 to the present case.in the case cited, it was a case of tenant claiming certain occupany right under the zemindar in the district of g3njam. he could not prove the (act that he was a tenant under the zamirsdar and was paying soms part of the crop as bhag, but yet his name stood recorded in the record-of-rights. in that case, the court held that since the foundation of his tenancy could not be proved, no presumptive value could be attached to such a reoord-of- rights. but in the present cass at hand, the plaintiff's evidence that he was the successor of gouoanga and in that capacity has been possessing the land has not been disproved by any counter evidence.10. with reference to the decision reported in air (33) 1946 privy council 59 jagdish narain v. nawab said ahmed khan, it was urged that the plaintiff cannot succeed because of the weakness in the defence case and his case must stand on the merit of his own case. there is no dispute regarding this proposition. i may point out that both the courts below discussed the evidence' on record and while the trial court accepted the plaintiff's evidence, the lower appellate court reversed the finding.it was strenuously urged by mr. ratho, with regard to the scope of this court to interfere with the judgment of the lower appellate court in the second appeal. the decisions reported in air 1953 sc 302 v. ramachandra ayyar and anr. v. ramalingam chattiar and anr., air 1939 sc 1509, maniar ismail sab and ors. v. meniar fakruddin and ors. were cited in support of such a contention. there cannot be any quarrel over the settled proposition of law, but then the question raised is when the lower appellate court while appreciating the case of title proceeded on a wrong footing, there is no bar for this court to interfere with such finding. the reasons are as follows.11. the plaintiff came forward with a case that he had title to the land in question. the defendants, on the other hand, claimed that they are the owners of the land since the same is their ancestral land. the towar appellate court did not discuss this aspect in the judgment. the defendants who claimed also proprietary right in respect of the suit land had not been able to prove it. secondly, the lower appellate court also did not record any finding with regard to the case of adverse possession by the defendants the tenor of the judgment itsslf shows that nowhere defendants were able to prove the continuous possession for more than 12 years. therefore, have no other alternative but to hold that the defendants failed to prove adverse possession and therefore, did not prescribe any title to it. on the face of the record-of-rights, it was wrong to assume that the plaintiff did not have any title to the property. the learned lower appellate court on the other hand observed that she plaintiff could not say the boundary of the land merely because he could not say the boundary of the land, his ownership cannot be disbeliived. the lower appellate court should have judged the posse- ssion of the plaintiff in view of the evidence of the plaintiff coupled with the entry in the record-of-rights which has a great presumptive value with regard to possassion of a party. absenca of any evidence from the side of the defandants with regard to possession. cannot prove their case of acquiring title by adverse possession 1 may point out that though the lower appellate court has given a finding, that the defendants gave evidence with regard to possession but it can be said that such a finding is erroneous on the face of the evidence in the sense that the adverse possession of the defendants should have been shown and proved from a particular point of time and this is conspicuously wanting.12. in discarding the presumptive value of the record-of-rights ext, 2, the learned lower appellate court came to he conclusion that the plaintiff could not satisfactorily give the boundary and plot numbers in question and therefore, the record-of-rights is a document which not only shows possession of the plaintiffs but also the same recognised the title of the plaintiff, for which they were so recorded because of this erroneous finding the judgment of the lower appellate court is liable to be set aside.13. the plaintiff based his case on title. he having been able to prove title and his possession within 12 years prior to the date of tiling of the suit, the plaintiff's suit cannot be dismissed.14. in the result, the appeal is allowed. the judgment and decree of the lower appellate court are set aside and those of the trial court are confirmed. but in the peculiar circumstances of the case, the parties 10 bear their own costs.
Judgment:

D.M. Patnaik, J.

1. Plaintiff is in appeal before this Court against the reversing judgment of the lower appellate Court in a suit for declaration of title and recovery of possession.

2. The dispute relates to 9 plots measuring a total area of Ac. 0. 045 decs Plaintiff claims that his lather Gouranga was recorded in respect of these lands In the record- of- rights of the 1923-24 settlement. After his death and long before the present suit there was partition in the family among the three brothers of which plaintiff is t e eldest one and his case is that in that partition the suit property fell to his share and ha has been in possession of the suit land in his own right, title and interest till 1972 when the defendants 7 and 8 and his other aasociates created trouble in his possession for which a case Under Section 145, Cr PC was initiated at his instance in Misc. Case No. 43 of 1972 which was ultimately decided against him and the defendants 1 and 3 to 9 were declared to be in possession of the land and there- fore, he filed the suit.

3. Though the defendants filed a joint written statement, while denying the material facts pleaded in the plaint, it was specifically pleaded by defendants 7 and 8 that the suit lands belonged to their ancestors and after them, they possessed the same It was alternatively claimed that in case title was found with them, by virtue of their adverse possession for more than the statutory period, they acquired title to the property. They claimed for dismissal of the suit.

At the same time, they made a counter claim in the written statament that in the R. O. R. of 1976 settlement, the suit land was wrongly recorded in the name of the plaintiff which should be declared as invalid and it should be directed that the defendants should be recorded in respect of the suit land in the said R. O. R.

4. The lower Court after analysing the evidence on record and considering the nature of the resptctive cases of the parties found that there was previous partition end this suit land fell to the shara of the plaintiff and he had title to the suit and that the defendants have no title to the property. He dacreed the plaintiff's suit. In the appeal by the defendants, the lower appellate Court, on the other hand, reversed that finding of possession so recorded by the trial Court.

5. Heard Mr. S.N. Mohanty, learned counsel for the appellants and Mr. 8. S. Ratho, learned counsel for the respondents.

It was urged by Mr. Ratho that villagers' names are found to be different as mentioned in the two record-ofrights, Exts. 1 and 2, and therefore, it is not known to which land plaintiff is claiming for his title.

This cannot be accepted in view of the admission of the defendants in the written statement in para-3 with regard to para-2 of the plaint stating that there was amalgamation of the two revenue village to one villages.

6. It was further submitted by referring to the evidence of PW 4, the Amin Commissioner that the plot numbers as recorded in the record-of-rights of 1923-24 settlement did not correspond to the plot numbers of the current settlement. It may point out that both the Courts below have given a finding that the PW 4's evidence is of no use, and neither of them relied on the evidence to judge the case of the respective parties either way.

It was strenuously urged by Mr. Ratho that the plaintiff admitted that the area comprising the suit land was an unserveyed area and, therefore, there could not have been any plot number as claimed by the plaintiff, and that this has been so held by the lower appellate Court.

I may point out that the learned lower appellate Court completely went wrong in observing this. It is abundantly clear from the pleadings of the parties that there was no dispute with regard to the identity of the suit land, In the written statement, the defendant came forward with specific plea that the suit land appertaining to the plots in the schedule which related to the last settlament operation in 1976 were their ancestral lands, the defendants were tree to say that the disputed land did not relate to those plot numbers and that they relate the some other plot nurnbers. In the obseen if any dispute the identity of the numbers/it was not necessary on the part of the learned lower appellate Court to give a finding that the plot numbers did not tally.

7. It was next urged that when the plaintiff filed the suit for recovery of possession, it was incumbent on the part of the plaintiff to prove both title as well as possession within 12 years. This proposition is not correct in the sense that the pleintiff filed the suit on the basis of title and this Court in the case of Naran Behera (dead) and Anr. v. Mohan Jethi and Ors. reported in AIR 1985 Ori. 40. held that in such a case, the plantif is only to prove his title and not possession. The plaintiff filed the suit on the basis of title and He is not required to show possession within 12 years vide decision reported in AIR 1975 Ori. 165 Saura Bauri and Ors. v. Subudhi Laxminarayan and Ors..

8. It was urged that the plaintiff though filed the suit on the basis of proprietary title, he did not lead any evidence with regard to foundation of his title and it was further urged that such foundation had to be laid even for his being recorded in the R. O R. of 1976 settlement under Ext. 2.

9. To this, I may point out that the plaintiff's suit is on the basis of his succession to his father's property i. e. the property of Gouranga Sahu. The plaintiff himself deposed in his dvidence that he succeeded to the father's property in respect of which the three brothers were the co-sharers. They made amicable partition among themselves and in that partition, the property in dispute fell to his share and that he has been in posession of the' same since then. This foundation having been laid, it was incumbent on the part of the defendants to displace this by saying that Gouranga was not the owner of the land or that even if the plaintiff was the successor to the property of Gouranga, his title to the property was lost by way of acquisition of titte by way of adverse posses-ion by the defendants. This having not been done, It can be said that the plaintiff did lay foundation for the title in respect of the property as well as the record-of-rights.

Vol. XXVII (1961)CLT Short Note No. 120 (Gobinda Panda after him, his wife Baurani Pandiani v. Gobinda Panigrahi and Ors., was cited in support of his contention. But having gone through the decision, I do not find that the sama is applic3bl3 to the present case.

In the case cited, it was a case of tenant claiming certain occupany right under the Zemindar in the district of G3njam. He could not prove the (act that he was a tenant under the Zamirsdar and was paying soms part of the crop as bhag, but yet his name stood recorded in the record-of-rights. In that case, the Court held that since the foundation of his tenancy could not be proved, no presumptive value could be attached to such a reoord-of- rights. But in the present cass at hand, the plaintiff's evidence that he was the successor of Gouoanga and in that capacity has been possessing the land has not been disproved by any counter evidence.

10. With reference to the decision reported in AIR (33) 1946 Privy Council 59 Jagdish Narain v. Nawab Said Ahmed Khan, it was urged that the plaintiff cannot succeed because of the weakness in the defence case and his case must stand on the merit of his own case. There is no dispute regarding this proposition. I may point out that both the Courts below discussed the evidence' on record and while the trial Court accepted the plaintiff's evidence, the lower appellate Court reversed the finding.

It was strenuously urged by Mr. Ratho, with regard to the scope of this Court to interfere with the judgment of the lower appellate Court in the second appeal. The decisions reported in AIR 1953 SC 302 V. Ramachandra Ayyar and Anr. v. Ramalingam Chattiar and Anr., AIR 1939 SC 1509, Maniar Ismail Sab and Ors. v. Meniar Fakruddin and Ors. were cited in support of such a contention. There cannot be any quarrel over the settled proposition of law, but then the question raised is when the lower appellate Court while appreciating the case of title proceeded on a wrong footing, there is no bar for this Court to interfere with such finding. The reasons are as follows.

11. The plaintiff came forward with a case that he had title to the land in question. The defendants, on the other hand, claimed that they are the owners of the land since the same is their ancestral land. The towar appellate Court did not discuss this aspect in the judgment. The defendants who claimed also proprietary right in respect of the suit land had not been able to prove it. Secondly, the lower appellate Court also did not record any finding with regard to the case of adverse possession by the defendants The tenor of the judgment itsslf shows that nowhere defendants were able to prove the continuous possession for more than 12 years. Therefore, have no other alternative but to hold that the defendants failed to prove adverse possession and therefore, did not prescribe any title to it. On the face of the record-of-rights, it was wrong to assume that the plaintiff did not have any title to the property. The learned lower appellate Court on the other hand observed that she plaintiff could not say the boundary of the land Merely because he could not say the boundary of the land, his ownership cannot be disbeliived. The lower appellate Court should have judged the posse- ssion of the plaintiff in view of the evidence of the plaintiff coupled with the entry in the record-of-rights which has a great presumptive value with regard to possassion of a party. Absenca of any evidence from the side of the defandants with regard to possession. cannot prove their case of acquiring title by adverse possession 1 may point out that though the lower appellate Court has given a finding, that the defendants gave evidence with regard to possession but it can be said that such a finding is erroneous on the face of the evidence in the sense that the adverse possession of the defendants should have been shown and proved from a particular point of time and this is conspicuously wanting.

12. In discarding the presumptive value of the record-of-rights Ext, 2, the learned lower appellate Court came to he conclusion that the plaintiff could not satisfactorily give the boundary and plot numbers in question and therefore, the record-of-rights is a document which not only shows possession of the plaintiffs but also the same recognised the title of the plaintiff, for which they were so recorded because of this erroneous finding the judgment of the lower appellate Court is liable to be set aside.

13. The plaintiff based his case on title. He having been able to prove title and his possession within 12 years prior to the date of tiling of the suit, the plaintiff's suit cannot be dismissed.

14. In the result, the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court are confirmed. But in the peculiar circumstances of the case, the parties 10 bear their own costs.