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2016 Supreme(Ori) 461
IN THE HIGH COURT OF ORISSA, CUTTACK
D. DASH, J.
Md. Nasim – Appellant
Versus
Md. Jahangir Allam & others – Respondents
R.S.A. NO. 549 OF 2004
Decided On : 12-08-2016
For the Appellant : M/s. S. Mantri, A.N. Sahoo, A.K. Mishra, A.K. Sharma, M.K. Dash, P.K. Dash
For the Respondent: M/s. S.K. Nayak, B.K. Rout, B.K. Sahoo, Miss A. Nayak, M/s. S.P. Misra, S. Mishra
The main legal point established in the judgment is the validity of property rights and the admissibility of evidence in a land dispute case.
Headnote:
Land Dispute - Property Rights - Code of Civil Procedure, section 100 - Title Suit No. 84 of 1999 - Ext. A, Ext. D-1 - Ac.1.390 decimals - Ext. K-1 - Ext. J-1 - Ext. L-1 - R.F.A. No. 03 of 2004, R.F.A. No. 10 of 2004 - Setting aside judgment and decree - Restoration of judgment and decree by trial court
Fact of the Case:
The plaintiff filed a suit for declaration of title over a land and to declare certain sale-deeds as void. The trial court decreed the suit in favor of the plaintiff. The defendants filed appeals challenging the decree. The lower appellate court set aside the trial court's judgment and decree, leading to the second appeal.
Finding of the Court:
The court found that the suit land was identifiable and properly described. It also found that the suit land belonged to Md. Ekramul Haque based on Ext. K-1. However, the court held that the plaintiff did not have title to the suit land and was not entitled to injunction.
Issues: The main issue was whether the suit land belonged to Md. Ekramul Haque or Md. Mazhurul Haque. The court also considered the admissibility of additional evidence and the interpretation of various documents.
Ratio Decidendi: The court held that the lower appellate court's finding that the suit land belonged to Md. Ekramul Haque was erroneous. It also rejected the defendants' reliance on certain documents and found that the land sold to the defendants was non-existent. The court emphasized that the sale-deed in favor of the plaintiff was valid and restored the trial court's judgment and decree.
Final Decision: The appeal was allowed, and the judgment and decree passed by the lower appellate court were set aside. The judgment and decree passed by the trial court in favor of the plaintiff were restored.
JUDGMENT :
This second appeal has been filed challenging the common judgment followed by decrees in R.F.A. No. 03 of 2004 and R.F.A. No. 10 of 2004 passed by the learned District Judge, Keonjhar in setting aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Keonjhar in Title Suit No. 84 of 1999 reversing its findings on crucial issues.
The appellant as the plaintiff had filed the above noted suit for declaration of his title over the land described in Schedule-B of the plaint which is the suit land in further declaring the registered sale-deed dated 22.04.1999, Ext. A and dated 24.06.1999, Ext. D-1 as void, clothing the defendant-respondents with no title over the land covered thereunder and for permanent injunction.
The suit having been decreed, the defendant no. 2 and 3 who are the respondents here in this appeal had filed the first appeal numbered as R.F.A. No. 03 of 2004. The defendant no. 1 had also filed the appeal i.e., R.F.A. No. 10 of 2004 The decree passed by the trial court in granting all the reliefs as prayed for to the plaintiffs-appellant having been set aside in the first appeals, this second appeal under section 100 of the Code of Civil Procedure has been filed by the unsuccessful plaintiff as the appellant.
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.
3. Plaintiff’s case is that as per the record of right of village, Magurgadia of the year 1981, land in total measuring Ac.1.390 decimals under plot no. 407 stood recorded in the name of late Md. Sirazuddin. After his death in the year 1970, his two sons namely, Md. Mazhurul Haque and Md. Ekramul Haque amicably divided the total land and then began selling portions out of their respective shares to different persons from time to time. Some land was also acquired by the Central Government for extension of National Highway lying to the adjacent south of the suit plot. Land measuring Ac.0.07 decimals was inside the Mosque premises used as Wooz Khana adjacent to the West of the suit plot.
The plaintiff claims to have purchased land measuring Ac.0.030 decimals by registered sale-deed on 25.08.1992 from Md. Mazhurul Haque. It is said that this suit land is to the adjacent north of National Highway No.6, and to the adjacent south of the land purchased by him as well as his wife and son. The, purchased land extends to Ac.0.120 decimals. Accordingly the plaintiff, his wife and son in total claim to have purchased Ac.0.150 decimals. The plaintiff further asserts to have been in possession of the said land by putting boundary wall all around excluding the passage towards the south in order to approach the National Highway. It is further stated that some unauthorized shop rooms were constructed to the north of the National Highway over the Nayanjari and that is in front of the plaintiff’s land which were demolished on 01.01.1999 by the State Government. It has also been averred that one Asfaque Hossain who is the brother of defendant no. 1 was having one such unauthorized shop over the said land. He was also evicted and his shop was demolished in the said drive for removal of encroachment. The unauthorized occupants of those lands, somehow or other entertained a belief in their mind that said drive for removal of encroachment over that Nayanjari was at the instance of the plaintiff. So, in order to take revenge, the brother of defendant no. 1 with the help of other defendants cooked up a plan. In that move although there was no left out land from out of suit plot no. 407 after purchase by the plaintiff on 25.08.1992 and one Mr. Mokinuddin on 10.06.1988 and the entire land under said plot thus stood exhausted, yet to create dispute the defendant no. 1 purported to have purchased Ac.0.05 decimals land from out of said purchased land of the plaintiff measuring Ac.0.030 decimals. Similarly, defendant no. 2 and 3 also purchased
