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Sailendra Kishore Patnaik Vs. Harekrushna Satpathy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 187 of 1974
Judge
Reported inAIR1978Ori125; 44(1977)CLT597
ActsEvidence Act, 1872 - Sections 3 and 64; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantSailendra Kishore Patnaik
RespondentHarekrushna Satpathy and ors.
Appellant AdvocateK.N. Sinha, ;A.S. Naidu, ;S. Mohanty and ;S.D. Das, Advs.
Respondent AdvocateS.K. Dey, Adv.
DispositionAppeal dismissed
Excerpt:
.....be a spurious and fabricated entry. no doubt, the court below has not specifically referred to these documents, but on a perusal of these documents along with the counsel appearing for both the parties, i am satisfied that a consideration of these documents would not have persuaded the court below to change its decision and to give a finding on the question of possession in favour of the plaintiff. possibly because all these documents came into existence only after disputes regarding the suit land started between the parties in the year 1960 and because of the other unconvincing reasons stated above, the court below did not specifically deal with the said documents in the impugned judgment. if a trial court or a court of first appeal does not consider it necessary to discuss in detail..........courts below has preferred this appeal. 2. the plaintiff's case in short is that he purchased the suit land by oral sale en 25-10-54 from laxmi bewa, the original, owner thereof, for rs. 95/- and took delivery of possession of the same. thereafter he continued in peaceful possession of the property and got the same mutated in his name. after the death of laxmi bewa on 2-2-55 the plaintiff obtained permission from the municipality for constructing a house on the suit land. the plaintiff remained absent from baripada for a long time and in 1962 he came to learn that defendant no. 1 was trying to construct a house forcibly on the suit site. so the plaintiff initiated a proceeding under section 145 cr. p. c. which ultimately was decided in favour of defendant no. 1. hence this suit. 3......
Judgment:

S. Acharya, J.

1. The unsuccessful plaintiff in both the courts below has preferred this appeal.

2. The plaintiff's case in short is that he purchased the suit land by oral sale en 25-10-54 from Laxmi Bewa, the original, owner thereof, for Rs. 95/- and took delivery of possession of the same. Thereafter he continued in peaceful possession of the property and got the same mutated in his name. After the death of Laxmi Bewa on 2-2-55 the plaintiff obtained permission from the municipality for constructing a house on the suit land. The plaintiff remained absent from Baripada for a long time and in 1962 he came to learn that defendant No. 1 was trying to construct a house forcibly on the suit site. So the plaintiff initiated a proceeding Under Section 145 Cr. P. C. which ultimately was decided in favour of defendant No. 1. Hence this suit.

3. Defendant No. 1's case is that he orally purchased the suit land from Lax-mi Dei for Rs. 60/- on 30-5-41 and got delivery of possession of the same. Laxmi died in the year 1943. Defendant No. 1 thereafter built a house on that land in November, 1950 after obtaining the necessary permission from the Municipality. The plaintiff's case of purchase of the suit land by him has been denied by this defendant and he asserts that the plaintiff by fraudulent means got the suit property mutated in his name without the knowledge of this defendant.

Defendant No. 2 on his own application was impleaded as a party in the suit. His case was that he being the nephew of Laxmi was her nearest heir and accordingly after Laxmi's death he acquired right, title and interest in the suit land and he was in possession of the same. He further asserted that Laxmi never sold the suit property either to the plaintiff or defendant No. 1.

4. The trial court dismissed the plaintiff's suit on the finding that Laxmi died on 11-4-46 and so she could not have sold the suit land to the plaintiff on 25-10-54 as alleged by the plaintiff and hence the plaintiff has no right, title and interest in the suit property. It found that Laxmi orally sold the suit property to defendant No. 1 but the said sale was not in accordance with law as the required permission of the State for making the said sale had not been obtained. It however held that Laxmi had delivered possession of the suit property to defendant No. 1 in the year 1941 and he was in possession of the same. On the said findings it concluded that defendant No. 1, being in possession of the suit property, was entitled to continue in possession of the same till he was evicted, if at all, by the State in accordance with law. The case of defendant No. 2 was disbelieved and his claim on the suit land was dismissed.

5. The plaintiff as well as defendant No. 2 filed two appeals against the said findings and decision of the trial court and the first appellate court by its common judgment dated 3rd January, 1970 allowed the plaintiff's appeal and dismissed that of defendant No. 2. Thereupon defendant No. 1 only preferred second appeal No. 74/70 in this Court. Defendant No. 2 did not prefer any appeal against the decision of the first appellate court. So the decision dismissing his claim on the suit land stands confirmed. This Court remanded the entire appeal preferred by the plaintiff to the first appellate court for fresh disposal according to law. The appellate court has thereafter arrived at the following findings:

(i) Laxmi had not sold the property to the plaintiff in 1964 and she having died long before 11-3-46, the case of sale by Laxmi to the plaintiff on 25-10-54 is false;

(ii) Laxmi had not also sold the suit land to defendant No. 1;

(iii) Defendant No. 1 somehow or other came to possess the property and effectively continued in possession of the same all through. The plaintiff attempted to exercise possession on that land in 1962 but he failed, and the proceeding Under Section. 145 Cr. P. C. also ended in favour of defendant No. 1; and

(iv) The plaintiff was never in possession of the suit property. As defendant No. 1 has been in possession of the suit property for more than 12 years by asserting his title to the same since the death of Laxmi he has acquired title to the same by adverse possession.

On the above findings the court below concludes that though Laxmi had not sold the property either to the plaintiff or defendant No. 1, the latter being in possession of the same since before the year 1950, he cannot be evicted by the plaintiff who has never been in possession of the said property and can have no remedy against the defendant No. 1.

6. The plaintiff has preferred this second appeal against the aforesaid decision.

7. Mr. Das, the learned counsel for the appellant, contends that in view of the fact that Ext. 5 was admitted in evidence without any objection from defendant No. 1, the courts below were not justified in disbelieving the contents of the said exhibit which go to show that Laxmi Bewa died on 2-2-75. (sic) Ext. 5 is an entry in the Municipal Death Register.There are several corrections, erasures and overwritings in the said entry. The said entry was allowed to be exhibited without objection. That only means that formal proof of that entry was not insisted and it was allowed to be exhibited as a piece of documentary evidence in this case. Merely because of that it cannot be said that the opposite side cannot question the genuineness or credibility of that document or the contents thereof. When documents are marked as exhibits without objection of a particular party, that party cannot raise the objection that the said document has not been admitted in evidence, but that party can impeach that document and the contents thereof in all other possible manner. In this case both the courts on elaborate discussion and consideration of the relevant evidence and on a physical examination of Ext. 5 itself have arrived at the finding that the said entry is a spurious and fabricated one. The said finding of fact, which is based on proper discussion and consideration of the relevant evidence on record, cannot ordinarily be allowed to be challenged in this second appeal. However I have myself carefully examined the entry Ext. 5 and have perused the discussion of the relevant evidence on this matter in the impugned judgment, and I am convinced that the said finding is perfectly correct and justified.

8. Both the courts below have arrived at the finding that Laxmi died in 1946. Mr. Das, the learned counsel for the appellant, is not able to assail the said finding of fact except stating that the courts should have placed reliance on the entry Ext. 5, which submission cannot be accepted for the good and convincing reasons on which that entry has been found by the courts below to be a spurious and fabricated entry. If Laxmi died in 1946, the plaintiff's case of oral purchase of the suit property from Laxmi on 25-10-54 is evidently false, and both the courts have rightly discarded the plaintiffs case to the said effect. Accordingly, the finding of the courts below, that the plaintiff has not purchased the suit property from Laxmi Bewa has to be and is hereby confirmed.

9. Both the courts below have arrived at the finding that defendant No. 1 has been in possession of the suit property for more than 12 years. Mr. Das challenged the correctness of the said finding of fact by saying that it was recorded without taking into consideration a number of documents which are on record, such as Ext. 2 series, Exts. 4 and 4/a, 10, 11,12, 13, 19 and 20. Admittedly the dispute between the plaintiff and defendant No. 1 regarding the suit land started in the year 1960. All these documents came into existence only thereafter. Ext. 2 series are rent receipts. These rent receipts granted after 1960 do not also show that rent was paid in respect of the suit land. Ext. 10 is an application submitted by the plaintiff in the Municipality on 19-9-62. Ext. 11 is a plan attached to that application.

Ext. 12 is a report signed by some of the Municipal authorities allowing the plaintiff to construct a house. Ext. 13 is also dated 19-9-62 by which permission is accorded to construct the house. Both Exts. 12 and 13 do not show that they refer to the suit land, as the plot number of the suit land is not indicated therein. Ext. 19 is a tattered Nakal Khatian. This does not show the plot number of the suit land, nor does it show as to who actually issued the said document, as it does not bear the signature of any lawful authority. In the document there is reference to a mutation case of 1960-61. From that it appears that the entries therein, for whatever they are worth, were made only after 1961. Ext. 20 is dated 3-2-62. It is a permission to construct a house without any details of the land on which the said house was to be constructed. In the said document there is no reference about the suit land.

No doubt, the court below has not specifically referred to these documents, but on a perusal of these documents along with the counsel appearing for both the parties, I am satisfied that a consideration of these documents would not have persuaded the court below to change its decision and to give a finding on the question of possession in favour of the plaintiff. Possibly because all these documents came into existence only after disputes regarding the suit land started between the parties in the year 1960 and because of the other unconvincing reasons stated above, the court below did not specifically deal with the said documents in the impugned judgment. If a trial court or a court of first appeal does not consider it necessary to discuss in detail any relevant evidence on record, it should better indicate its reasons in short to that effect so that comments as made above could not have been made requiring this Court to probe into the matter like a first court of appeal.

On a perusal of the discussion of the relevant evidence in the impugned judgment I am satisfied that the finding regarding possession in favour of defendant No. 1 is perfectly correct and justified and I do not see any reason to interfere with the same.

10. On the above findings and conclusions I do not see any merit in this appeal. Accordingly this appeal is dismissed but without costs of this Court.


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