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Sanatan Mohanty and ors. Vs. Baidhar Rout and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 126 of 1979
Judge
Reported inAIR1986Ori66
ActsEvidence Act, 1872 - Sections 64 and 65
AppellantSanatan Mohanty and ors.
RespondentBaidhar Rout and ors.
Appellant AdvocateS. Kr. Mohanty, ;Rati Mohanty and ;M. Patra, Advs.
Respondent AdvocateR.C. Ram and ;B. Sahoo, Advs.
DispositionAppeal dismissed
Excerpt:
.....and is available, it must be produced because it is the best evidence. 2 the requirements of section 65 of the evidence act must be held to have been satisfied. mohanty, learned counsel appearing for the plaintiffs, has urged that the learned courts below have failed to take note of the endorsement in oriya in ext......of their purchase the plaintiffs became the owners in possession of the lands conveyed under their sale deed. in the major settlement in 1969, ac. 0.06 decimals of land appertaining to plot no. 2203 was recorded in the name of defendant no. 3, but ac.0.11 decimals of land appertaining to plot no. 2205, which is the subject-matter of the present dispute, was wrongly recorded in the name of defendant no. 2 although the latter had no subsisting title or possession thereof after his sale in favour of defendant no. 3 on 20-2-1956. after their purchase the plaintiffs applied to the assistant consolidation officer for mutation of their names in respect of the lands including the disputed land purchased by them from defendant no. 3 on 20-9-1971. at that time defendant no. 1 also filed an.....
Judgment:

B.N. Misra, J.

1. The unsuccessful plaintiffs have filed this appeal against the affirming judgment of the learned Subordinate Judge, Bhadrak. The dispute relates to Ac. 0. 11 decimals of agricultural lands on the western side of Plot No. 2205 with an area of Ac. 0. 21 decimals appertaining to khata No. 89 in Mouza Tilo.

2. The two plaintiffs are brothers. The plaint case is that defendant No. 2 was the owner in possession of the disputed land and Ac. 0.06 decimals of land situated to the west of Plot No. 2203 with an area of Ac. 0. 14 decimals. On 20-2-1956 defendant No. 2 sold the aforesaid lands to defendant No. 3 by aregistered deed of sale for a consideration of Rs. 120.00 and the latter took over possession of the said land as the owner from the date of his purchase. On 20-9-1971 defendant No. 3 sold the aforesaid lands and other lands comprising a total area of Ac. 0. 55 decimals to the plaintiffs by a registered deed to sell for a consideration of Rs. 2,500.00 and since the date of their purchase the plaintiffs became the owners in possession of the lands conveyed under their sale deed. In the Major Settlement in 1969, Ac. 0.06 decimals of land appertaining to Plot No. 2203 was recorded in the name of defendant No. 3, but Ac.0.11 decimals of land appertaining to Plot No. 2205, which is the subject-matter of the present dispute, was wrongly recorded in the name of defendant No. 2 although the latter had no subsisting title or possession thereof after his sale in favour of defendant No. 3 on 20-2-1956. After their purchase the plaintiffs applied to the Assistant Consolidation Officer for mutation of their names in respect of the lands including the disputed land purchased by them from defendant No. 3 on 20-9-1971. At that time defendant No. 1 also filed an application for mutation in respect of the disputed land on the strength of a registered sale deed alleged to have been executed in his favour by defendant No. 2 on 19-5-1972. Plaintiffs allege that the so-called sale-deed dated 19-5-1972 in favour of defendant No. 1 was void and without consideration and no title had passed to defendant No. 1 on the basis of the said sale-deed as defendant No. 2 did not have subsisting title or possession on the date of the sale. However, the Assistant Consolidation Officer allowed mutation in favour of defendant No. 1 and being emboldened by the said order of mutation, defendant No. I threatened to dispossess the plaintiffs from the disputed land. In these circumstances the plaintiffs filed the present suit for declaration of title to the disputed land, also for declaration that the order of the Assistant Consolidation Officer was illegal and that the sale-deed executed by defendant No. 2 in favour of defendant No. 1 was void, for confirmation of possession, in the alternative, for recovery of possession and for permanent injunction,

3. Defendants 1 and 2 entered contest and filed separate written statements. Defendant No. 3 did not appear and was set ex parte by order dated 3-12-1974 of the trial Court.

According to defendants 1 and 2, the plaintiffs had not acquired title or possession in respect of the disputed land by virtue of the registered sale-deed dated 20-9-1971 as defendant No. 2 had sold to defendant No. 3 only Ac.0.06 decimals of land appertaining to Plot No. 2.203 and not Ac.0.11 decimals of land, the subject-matter of the present dispute, under the sale-deed dated 20-2-1956. The disputed land was fraudulently included in the sale-deed dated 20-2-1956 which was scribed in English. The contents of the deed were not read over and explained to defendant No. 2 who was an illiterate person unfamiliar with the English language. Defendant No. 2 had remained in possession of the disputed land all throughout until 19-5-1972 when he sold the said land to defendant No. 1 and since then defendant No. 1 has remained in possession of the same. Accordingly, the defendants have prayed that the plaintiffs' suit should be dismissed.

4. Five witnesses were examined on behalf of the plaintiffs besides plaintiff No. 2 who examined himself as P. W. 6 of the four defence witnesses, D. Ws. 1 and 2 are defendants 2 and 1 respectively. Parties also relied on documentary evidence. The learned Munsif who tried the suit found that the registered sale-deed dated 20-2-1956 was fraudulent, invalid and not supported by consideration, that the plaintiffs had not acquired title to the disputed land on the strength of the registered sale-deed dated 20-9-1971, that defendant No. 1 derived title to the disputed land under the sale-deed dated 19-5-1972 and that possession of the disputed land was not with the plaintiffs but with defendant No. 2 who had remained in possession until 19-5-1972 when he sold the disputed land to defendant No. 1 whereafter possession remained with defendant No. 1, The suit was accordingly dismissed. The plaintiffs challenged the judgment and decree for the learned Munsif, but the learned lower Appellate Court confirmed the judgment and decree of the learned Munsif and dismissed the appeal filed by the plaintiffs. Hence this appeal.

5. As already noted plaintiffs claim title to the disputed land on the basis of the registered sale deed, Ext. 1, dated 20-9-1971 executed by defendant No. 3 in their favour. Defendant No. 3's title to hold disputed land is based on Ext. 2 which is a certified copy of the registered sale-deed dated 20-2-1956 executed bydefendant No. 2 in favour of defendant No. 3 Exts. 1 and 2 have been proved by plaintiff No. 2 (P. W. 6). Learned counsel for the respondents has raised an objection to the admissibility of Ext. 2 on the ground that it is only a certified copy and not the original sale deed and it should not have been admitted without compliance with the provisions contained in Section 65 of the Evidence Act.

6. This objection regarding admissibility of Ext. 2 requires an examination of the scope of Sections 64 and 65 of the Evidence Act. Section 64 of the Evidence Act embodies the rule that documents must be proved by primary evidence, i.e., by production of the original documents. Section 65 of the Evidence Act provides the exception to the aforesaid rule and it states the various classes of cases in which secondary evidence relating to documents may be given. The general principle is that if the original document exists and is available, it must be produced because it is the best evidence. However if the original is lost, destroyed, detained by the opponent or third person who does not produce it after notice, or is physically irremovable, secondary evidence is admissible. In the present case plaintiff No. 2 has stated in his examination-in-chief and cross-examination that on 20-9-1971 he had lost the original of Ext. 2 which was in the bag left behind by him in the bus. In view of this evidence of plaintiff No. 2 the requirements of Section 65 of the Evidence Act must be held to have been satisfied. The document has been properly admitted in evidence.

7. Mr. S. K. Mohanty, learned counsel appearing for the plaintiffs, has urged that the learned Courts below have failed to take note of the endorsement in Oriya in Ext. 2 by defendant No. 2 to the effect that the contents thereof had been read over to him in Oriya. On perusal of the judgments I find that the learned trial Court and the learned lower appellate Court have considered this matter in detail while discussing issue No. 4. Though P. Ws. 1, 2 and 5 have stated that defendant No. 2 was aware of the contents of Ext. 2, none of the witnesses for the plaintiffs has stated about the payment of consideration under Ext. 2. On the other hand it has been elicited during cross-examination of defendant No. 2 that the valuation of the disputed land in the year 1956 should have been aboutRs. 1,700/- and accordingly, the learned trial Court has observed that the valuation of . Rs. 120/- under Ext. 2 was abnormally low. Further, though there is an endorsement in Oriya in Ext. 2 that the contents of the deed have been explained to defendant No. 2 in ' Oriya, the specific statement of defendant No. 2 in Court is that the contents were not explained to him in Oriya. Admittedly defendant No. 2 is an illiterate person unfamiliar with the English language. P. W. 1 who claims to have attested Ext. 2 has stated that P. W. 5 who had typed the contents of Ext. 2 had in his presence explained the contents of the sale-deed to defendant No. 2 in Oriya, However, P. W. 5 has not supported the statement of P. W. 1 in this regard. Although after some hesitation P. W. 5 admitted that he had typed out the contents of the sale-deed Ext. 2, he did not know whether defendant No. 2 had signed the deed in his presence. However in his evidence he has stated that he had explained the contents of Ext. 2 to defendant No. 2 in Oriya. On the other hand he has said that he had done nothing more than typing out the sale-deed and handing it over to defendant No. 2. Again, there is no evidence at all as to who had written the Oriya endorsement on the body of the sale-deed. In these circumstances and in view of the fact that in the Major Settlement in 1969 the name of defendant No. 2 was recorded in respect of the disputed land, the Courts below have come to the concurrent finding that the disputed land was fraudulently included in Ext. 2 and the deed of sale was invalid. This conclusion is based on proper appreciation of the evidence on record and hence does not call for interference. In view of this finding it must be held that the plaintiffs did not acquire title to the disputed land on the basis of the registered sale-deed, Ext. 1, dated 20-9-1971, executed in their favour by defendant No. 3.

8. On the issue of possession learned Courts below have discussed in detail the oral and documentary evidence adduced by the parties. Apart from plaintiff No. 2 P. Ws. 3 and 4 have deposed about the possession of the plaintiffs. Plaintiff No. 2 has stated that after D. W. 3 purchased the disputed land from P. W. 2, he engaged P. W. 4 to cultivate the land as a bhag-tenant and P. W. 4 cultivated the land for about 14 years whereafter plaintiffs took over possession after their purchase. Theplaint is silent about cultivation by P. W. 4 as a Bhag-tenant. P. W. 4 has stated in his evidence that his payment of bhag produce was being noted by the Gumasta of defendant No. 3, but the said Gumasta has not been examined. Defendant No. 3 has also not been examined in this case. P. W. 4 has further stated that for the last 5 to 6 years the plaintiffs are in possession of the disputed land though he admitted that for the last 7 to 8 years he has no lands in the suit village. The evidence of P. W. 3 whose lands adjoin the disputed land is contradictory. He has stated that the plaintiffs are in possession of the suit land only for the last 2 years and prior to that Kasi Jena, the labourer of defendant No. 2, was cultivating the suit land. Thus the evidence of P. W. 3 supports the claim of defendant No. 2 that he was in possession of the disputed land until he sold the same to defendant No. 1. Defendant No. 2 has denied that defendant No. 3 was ever in possession of the disputed land. According to him, he was all throughout in possession until he sold the land to defendant No. 1 on 19-5-1972 whereafter the latter is in possession. Defendant No. 2 has filed the rent receipts, Ext. A series, which support his possession. Defendant No. 1 has stated in his evidence that he has remained in possession of the disputed land after he purchased it from defendant No. 2 on 19-5-1972 vide Ext. B, the registered sale-deed. Ext. C is a certified copy of the order-sheet in Mutation Case No. 763 of 1972 wherein mutation has been allowed in his favour after due enquiry. It has been further noted in Ext.C that the claims of the plaintiffs had been rejected as possession had not been taken by them since their purchase in 1971. D. W. 3's lands are situated two plots away from the suit land and D. W. 4's lands are situated near the suit land. Both of them have stated that defendant No. 2 was in continuous possession of the suit land until 1972 whereafter defendant No. 1 is in possession. On a consideration of the oral and documentary evidence adduced by the parties, the Courts below have held that the plaintiffs were not in possession of the disputed land and that defendant No. 2 was in possession of the said land until 19-5-1972 whereafter possession has remained with defendant No. 1. The findings of the Courts below are clear, specific and unambiguous and hence must be accepted. The question of adverse possession by defendant No. 2 does not arise as title inrespect of the disputed land was with him until he sold the said land to defendant No. 1 on 19-5-1972.

9. For the reasons stated above, this appeal is dismissed with costs. The judgments and decrees of the learned Courts below are confirmed.


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