Suit for declaration of title barred by limitation as filed beyond three years from the publication of Record of Rights; oral gifting claim lacked sufficient evidence.

JUDGMENT :

SASHIKANTA MISHRA, J.

The present appeal is against the confirming judgment passed by learned District Judge, Baleswar on 21.04.2012 followed by decree in RSA No. 129 of 2009 whereby the judgment and decree passed by learned Civil Judge (Senior Division), Baleswar on 31.10.2009 followed by decree in C.S. No. 739 by 2002-I was confirmed. The suit was filed by the plaintiff-appellant for declaration of title with consequential reliefs such as confirmation of possession with alternative prayer for recovery of possession and permanent injunction. Said suit was dismissed by the Trial Court.

2. The present appeal was admitted on the following substantial questions of law:

“(i) Whether the learned Courts below are justified in dismissing the suit holding, inter alia, that the suit is barred under Section 42 of the Orissa Survey and Settlement Act as well as Sections 64 and 65 of the Limitation Act?

(ii) Whether the finding of the learned lower appellate Court that the finding of the Assistant Settlement Officer cannot be set at not after lapse of 12 years is correct?”

3. The plaintiff’s case, briefly stated is that her father, Sultan Khan purchased Ac 0.04 decimals of land from Sk. Samatulla, the original recorded tenant of C.S. Plot No. 622 under C.S. Khata No. 24 measuring Ac. 0.63 decimals. Said Sk. Samatulla orally gifted the remaining property (Ac. 0.059 decimals) to the plaintiff in presence of villagers, witnesses and relations. The plaintiff continued to possess such land since then. Sultan Khan sold the said Ac. 0.04 dec. of land to Feluram Chatterjee and his wife Renubala, who in turn, sold the same land to one Durga Sankar Chatterjee, father of the present defendants, who are in possession. The plaintiff further claims that during major settlement, the area under the defendants was increased to Ac. 0. 054 dec. and by Ac. 0.014 dec. to the east of the plaintiff’s land, which was not part and parcel of the land purchased by the father of the defendants but of C.S. Plot No. 507 belonging to her. Thus, alleging that the recording of the name of the defendants in M.S. ROR was wrong, illegal and claiming title and possession over their land, the plaintiff filed the suit.

4. The defendants’ case is that the suit land is actually not part and parcel of C.S. Plot and Khata as mentioned in the plaint schedule but pertains to C.S. Plot No. 612 whereas the area of AC. 0.04 dec. belonging to the plaintiff pertains to Plot No. 622. It is further claimed that the defendants are in possession of Plot measuring Ac. 0.054 dec. for more than 30 years. They further challenged the maintainability of the suit on the ground of non-joinder of parties and estoppel as previously, the plaintiff’s father had filed a suit against the father of the defendants being O.S. No. 2940/8 wherein, he had admitted the possession of the defendants. The claim of the plaintiff regarding gift of the land in question as also title and possession was specifically disputed being barred by the law of limitation.

5. Basing on the rival pleadings, the Trial Court framed 8 issues of which the following two issues were held to be pertinent and therefore taken up for determination at the outset.

Issue No. 5 and 6

Issue No. 5 “Whether the plaintiff has got right, title, interest and possession over the suit land?

Issue No. 6 “Whether the suit property is the part and parcel of C.S. Khata No. 24, C.S. Plots 272 & 507 corresponding to M.S. Khata No. 24. M.S. Plot No. 622?”

The Trial Court after considering the oral and documentary evidence in detail held that the plaintiff failed to prove that the suit land is part and parcel of C.S.