ARJUN SAMAL Vs. KAILASH CHANDRA KANUNGO AND ORS.
HIGH COURT OF ORISSA
Kailash Chandra Kanungo And Ors.
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G.K. Misra, C.J. -
(1.) THE suit is for declaration of title, confirmation of possession and injunction and in the alternative for recovery of possession. The disputed land constitutes 1. 69 acres as described in Ka schedule to the plaint. Admittedly it belonged to the Plaintiff. It is Bramhotar Bahel land. For nonpayment of arrears of road cess it was sold in auction for Rs. 13/on 25 -2 -1941. Plaintiff 's case is that the first Defendant was working as the Gumasta of Plaintiff 's maternal uncle (p.w. 6). Plaintiff had no money to pay the arrear of road cess and accordingly on his request p.w. 6 paid the money to be deposited by the first Defendant towards arrear of road cess. Without depositing that amount the first Defendant acted treacherously and purchased the disputed property in his own name in auction sale on 25 -2 -1941. He also took a paper delivery of possession on 10 -4 -1942 as per Ext. B. Some time after, the Plaintiff came to know of this. The first Defendant promised to execute a release deed in favour of the Plaintiff. He gave up service under p.w. 6 in 1955 as a suit for account was filed against him for misappropriation of money. There was a compromise in between p.w. 6 and the first Defendant in 1956. Thereafter the first Defendant executed a registered sale deed (Ext. E) on 4 -6 -1958 without consideration in favour of the second Defendant. The second Defendant in his turn threatened to interfere with the possession of the Plaintiff and accordingly the suit was filed on 22 -6 -1960. Despite the auction sale and paper delivery of possession in favour of the first Defendant, the Plaintiff was all through in possession and has acquired a title by adverse possession.
Both the Defendants contested the suit on identical grounds. Their case is that the auction purchase and the delivery of possession thereunder are genuine and the first Defendant was all through in possession till the date of the sale in favour of the second Defendant on 4 -6 -1958.
(2.) THE trial Court held that the first Defendant did not, purchase the disputed property in auction sale on behalf of the Plaintiff. Despite the purchase, however, Plaintiff was all through in possession and has acquired a title by adverse possession. He accordingly decreed the Plaintiff 's suit for recovery of possession and granted a permanent injunction. Against the trial Court decree, Defendant No. 2 filed an appeal which was dismissed by the learned Subordinate Judge on findings that the purchase by the first Defendant in Court auction was on behalf of the Plaintiff and the Plaintiff was in possession within twelve years of the suit. In terms he did not record a finding that the Plaintiff had acquired a title by adverse possession.
The second Defendant has filed this second appeal against the confirming judgment.
Mr. Das for the Appellant advanced two contentions:
(i) The finding of the lower appellate Court that the auction purchase by the first Defendant on 25 -2 -1941 was on behalf of the Plaintiff, is contrary to law.
(ii) In the absence of a finding by the lower appellate Court that Plaintiff has acquired a title by adverse possession, Plaintiff 's suit could not be decreed on the mere finding that Plaintiff was in possession within twelve years of the suit.
Both the contentions require careful examination.
(3.) THE disputed property was purchased by the first Defendant in auction sale on 25 -2 -1941 in a certificate proceeding for arrear of road cess.
Section 27(1) of the Bihar & Orissa Public Demands Recovery Act, 1914 lays down that no suit shall be maintained, against any person claiming title under a purchase certified by the Certificate Officer in such manner as may be prescribed, on the ground that the purchase was made on behalf of the Plaintiff or on behalf of some one through whom the Plaintiff claims the section is clear and categorical that Plaintiffs suit for a declaration that title vested in him as Defendant No. 1 was entrusted with money to purchase on his behalf is untenable. It is, therefore. unnecessary to examine the factual basis of the Plaintiff 's ' 'case that on his request P.W. 6 paid money to the first Defendant to deposit the arrears of road cess in respect of which the certificate sale was to be held on 25 -2 -1941. Thus, the first Defendant had title to the disputed property by his auction purchase and Plaintiff 's title was extinguished. The learned Subordinate Judge acted contrary to law in overlooking this legal provision. The learned Advocates for both the parties are mainly to blame for not bringing this provision to the notice of the learned Subordinate Judge.;
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