The court established that the application under Order XXI Rule 99 was barred by limitation as it was not filed within the prescribed period from dispossession, clarifying that possession must be actual and not merely constructive.

JUDGMENT :

Sashikanta Mishra,J.

This appeal is directed against the common judgment passed by learned Addl. District Judge, Keonjhar on 23.9.2013 followed by decree in R.F.A. No.32/2015 of 2013-12 and R.F.A. No.33/2017 of 2013- 12 whereby the first mentioned appeal was allowed and the second mentioned appeal was dismissed. Further, the right, title and interest of the appellant in R.F.A. No.32/2015 of 2013-12 was declared over the suit land and he was directed to be put in possession thereof in Execution Case No.12/2008. Both the appeals as above emanated from order dated 21.3.2012 passed by the learned Civil Judge (Sr. Division), Keonjhar in C.M.A.No.5/2009 filed by the present appellant.

2. For convenience, the parties are referred to by their respective names to avoid confusion.

3. The facts of the case are that Golakh Ch. Pati purchased land measuring Ac.0.10 decs out of Ac.2.24 decs of land in Plot No.12 under Khata No.33 of Mouza Goudunibeda vide R.S.D.No.570 dtd.2.3.2005 from Mayadhar Behera for a consideration of Rs.35,000/-. Said Mayadhar Behera had purchased the case land along with other lands from one Haguru Machhua vide Registered Sale Deed No.544 dated 22.2.1977. Golakh Ch. Pati and Mayadhar Behera being co-devotees of Prajapita Brahmakumari Iswaria Viswa Vidyalaya were well-known to each other. As such, Golakh Ch. Pati on good faith asked Mayadhar Behera to keep the original sale deed with him and to watch over the case land. Golakh Ch. Pati was a teacher and retired from service on 31.5.2006. After his retirement he asked for the original sale deed from Mayadhar Behera for mutation but was told that the same had been lost and accordingly he was advised to obtain a certified copy. The Petitioner, after obtaining a certified copy on 31.10.2007 filed Mutation Case No.186/2008 before the Tahasildar, Keonjhar. In the mean time, Golakh Ch. Pati came to know that Mayadhar Behera had filed a Civil Suit on 31.3.2005 against his vendor (Haguru Machhua) for declaration of his right, title, interest and confirmation of possession including the lands sold to Golakh Ch. Pati.

Golakh was not impleaded as a party to the suit. When Golakh asked him about it, Mayadhar Behera executed a deed of cancellation bearing No.295 dtd.19.2.2008 cancelling the RSD dated 02.3.2005. Further, Mayadhar Behera filed Execution Case No.12/2008 arising out of the decree in C.S. No.28/2005 for delivery of possession of the suit land through the Bailiff of the Court after demarcation by the Civil Court Commissioner. At this stage Golakh Ch. Pati filed C.M.A. No.37/2008 on 25.6.2008 under Order XXI Rule 97 C.P.C. However, Mayadhar Behera proceeded with the execution and took delivery of possession of the suit land on 19.8.2008. Such fact came to the knowledge of Golakh Ch. Pati on 1.10.2008 when Mayadhar Behera filed objection in the CMA filed by him. Golakh Ch. Pati therefore, filed C.M.A. No.5/2009 under Order XXI Rule 99 C.P.C. without pressing the previous C.M.A. Mayadhar Behera appeared by filing show cause questioning the maintainability of the application on the ground of absence of cause of action and being barred by limitation. It was stated that since Golakh Ch. Pati was never in possession and therefore, can never be said to be dispossessed. So, the petition under Order XXI Rule 99 is not maintainable. He further took the plea that the registered sale deed dtd.2.3.2005 was without consideration for which no title passed to Golakh Ch. Pati on such basis and no possession was delivered. Therefore, the deed of cancellation dtd.19.2.2008 is valid and proper. It was further s