SANTOSH KUMAR DAS Vs. BHASKAR CHANDRA BEHERA.
LAWS(ORI)-2021-3-46
HIGH COURT OF ORISSA
Decided on March 18,2021

Santosh Kumar Das Appellant
VERSUS
Bhaskar Chandra Behera. Respondents

JUDGEMENT

D.DASH,J. - (1.) The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), has assailed the judgment and decree 16.08.2019 and 29.08.2019 respectively passed by the learned District Judge, Balasore in R.F.A. No.166 of 2016. By the said judgment and decree, the lower appellate court has confirmed the judgment and decree dated 12.07.2016 and 23.07.2016 respectively passed by the learned Senior Civil Judge, Balasore, in C.S. No.548of 2010/894 of 2014. The Respondent Nos.1 to 8, as the Plaintiffs had filed the suit arraigning the Appellant as the principal Defendant, i.e, Defendant No.1 against whom the reliefs had been claimed and he alone had contested the suit. The other Defendant, i.,e, Defendant No.2 although had filed the written statement, yet did not nor participate in the hearing of the suit. During the pendency of the first appeal, said Defendant No.2, who has been arraigned as Respondent No.9 having died leaving no legal representatives, her name stood expunged.
(2.) For the sake of convenience and clarity as also to avoid confusion; the parties hereinafter have been referred to in the same rank as assigned to them in the original proceeding before the Trial Court i.e. the Appellant as 'the Defendant No.1' whereas the Respondents as 'the Plaintiffs'.
(3.) Rival case of the parties are as follows:- Plaintiffs' case is that the immovable property described in Lot No.1 of the plaint vide RMS Plot No.917 and 914 corresponding to the land under MS Plot No.844 and 885 as also CS Plot No.389 and 391 had been purchased by the Plaintiff No.3 by registered sale deed admitted in evidence and marked as Ext.6. The immovable property described in Lot No.2 of the plaint which stood recorded under RMS Plot No.1336, 1322, 1733 correspond to MS Plot No.706, 707, 708 and 1341 which further correspond to CS Plot No.483, 484, 492, 443. This property is said to have been purchased by Plaintiff Nos.1 to 6 by registered sale deed which has been admitted in evidence and marked as Ext.7. It is further stated that the land under RMS Plot No.1214 corresponding to MS Plot No.1172, further corresponding to CS Plot No.806 described in Lot No.3 of the plaint was also purchased by Plaintiff Nos.7 and 8 by registered sale deed under Ext.5. The plaintiffs have come up with the case that one Bhabani Prasad Das was the common ancestor of the Defendant Nos.1 and 2. He died leaving behind his sons, namely, Jadaba, Purusottam, Chandramohan, Kumuda and Sudhakar. Defendant No.2 is the only legal heir and successor of Jadaba. Purusottam died leaving behind his sons, namely, Sashi, Sasanka, Sudhir and Santosh (the Defendant No.1). In O.S. No.95 of 1950 of the Court of the Sub-ordinate Judge, Balasore, the suit land with other properties of the family constituting of the legal heirs and successors of Bhabani Prasad Das were the subject matter. It was a suit for partition. The Defendant Nos.1 and 2, Purusottam and others were parties therein. To be more specific, the Defendant No.2 was the Plaintiff and Defendant No.1 was the Defendant No.8 in the said suit. The suit stood partly decreed. So, the Defendant No.2 being aggrieved by the same, had filed First Appeal No.71 of 1952 before this Court. The said First Appeal had been disposed of by holding the suit land described in Schedule-B of the said plaint as liable for partition and 1/5th share from out of that was allotted in favour of the Defendant No.2, who was the Plaintiff therein. Moreover, the extent of land of Ac.10.00 of the land described in Schedule- Kha of the written statement therein was recorded in the name of the husband of Defendant No.2 and the first wife of her husband. That decree was made final wherein the land involved in the present suit and other lands standing recorded under CS Khata No.30 was allotted to the share of Defendant No.2. On her subsequent move, she had been delivered with the possession of the same in an Execution Proceeding. It is the further case of the plaintiffs that from the properties, as above allotted in favour of Defendant No.2, lands measuring an extent of Ac.1.72 decimals under MS Khata No.52 was recorded in the name of Gajendra Prasad Mohanty during major settlement operation. This is said to be without the knowledge of Defendant No.2. On the death of said Gajendra Prasad Mohanty, his widow Manorama, taking advantage of the said erroneous recording, has sold the lands under MS Khata No.52 to the Defendant No.1 by registered sale deed dated 16.06.1978. Consequent upon said purchase, the land has been mutated in favour of Defendant No.1 followed by issuance of the record of right. It is stated that said preparation of MS ROR, the alienation of the property by Manorama as also the mutation were wholly without the knowledge of the Defendant No.2. In the year 1993, T.S. No.860 of 1993 was filed by the Defendant No.1 against the Defendant No.2. The relief was for declaration of title and permanent injunction. The suit had been filed in the Court of the Munsif, Balasore wherein the land measuring Ac.1.72 decimals covered under MS Khata No.52 was the subject matter. The order directing the parties to maintain status quo in respect of the suit land therein being passed on an application under order 39 Rules 1 and 2 of the Code, the Defendant No.2 had filed an application for appointment of receiver, which was allowed. An order therein was passed that the said property be put to auction between the parties. The Defendant No.1 had questioned said order by carrying a Revision to the court of the learned District Judge. The revision was dismissed on 20.10.2001. An attempt being made by Defendant No.1 for review of the said order first failed. However, an another attempt being made for restoration of the review application although succeeded, later on said review application stood dismissed on merit. Defendant No.2 then filed an application for fixing the date of auction. The date was so fixed to 21.04.2007. At that juncture, the Defendant No.1 approached this Court by filing W.P.(C) Nos.5614 and 2764 of 2007. Both the writ applications stood dismissed and the Trial Court was directed to expeditiously dispose of the suit. When the matter stood thus, the Defendant No.1 being the Plaintiff of that T.S. No.860 of 1993, opted to withdraw that suit. In the said suit, the Defendant No.2 had filed an application for amendment of the written statement for introduction of counter claim. That, in the circumstances, however, was disallowed. So, she had filed W.P.(C) No.65 of 2009. The Plaintiffs state that being in enjoyment of the suit property involved and allotted to Defendant No.2 in T.S. No.95 of 1950, she has sold the same as described in Lot No.1 of the plaint to Plaintiff No.3 vide registered sale deed (Ext.6); Lot No.2 to Plaintiff No.1 and the predecessor-in-interest of Plaintiff Nos.2 to 6 under registered sale deed (Ext.7) as well as Lot No.3 to Plaintiff Nos.7 and 8 under Ext.5, the registered sale deeds. All those sales she made were for valuable consideration which she received from the respective vendors and they were put to possession of the property in question pursuant to the said transactions of sale and as such have been in possession. The Plaintiff No.3 when applied for preparation of separate ROR in respect of the lands in his name as also in the name of Plaintiff Nos.1 to 6, the Settlement Authorities did not, however, allow it projecting the ground of prevalence of the order of status quo passed in T.S. No.860 of 1993. However, the land purchased by Plaintiff Nos.7 and 8 was mutated in their name on 27.10.1992 before the institution of the suit. However, as the Defendant No.1 created disturbance in the peaceful possession of the suit land by the plaintiffs, they filed this suit for declaration of their right, title and interest, confirmation of possession and in the alternative, for recovery of possession, if found to have been dispossessed during the suit as well as for permanent injunction with further prayer for declaration that MS ROR and RMS ROR in respect of the suit land are erroneous and nonest in the eye of law. For the purpose of the suit, the properties described in Lot Nos.1, 2 and 3 stand as the subject matter as described Schedule-B property. ;


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