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An appeal under Section 100 C.P.C

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An appeal under Section 100 C.P.C Powered By Docstoc
					   IN THE HIGH COURT OF ORISSA : CUTTACK
                          R.S.A. No.     /2005
                           Code No.__________

                   An appeal under Section 100 C.P.C.

   1.    Nilamani Patel, aged about 65 years, son of Late Jayakrushna
         Patel, resident of Bartanakalla, tola Nuamunda, P.S.: Lephripara,
         Dist: Sundargarh.
                                                     ……….. Appellant.
                                              (Plaintiff and respondent No.1
                                              in the Courts below)

                                   Versus

   1.    Uttam Tanty, aged about 45 years, son of Late Sahadev Tanty of
         Suarijore, tola Baraphar, P.S.: Lefriripara, Dist: Sundargarh,
         Occupation-Cultivation.
   2.    Goutam Chandra Patel, aged about 40 years, S/o Jibadhan Patel,
         aged about 40 years, resident of village Bartankalla, tola
         Nuamunda, P.S.: Lefriripara, Dist:Sundargarh, Occupation:
         Cultivation.
                                                …………. Respondents.
                                         (Defendant Nos.1 & 2 and
                                         Appellants 1 & 2 in the Courts
                                         below)

   3.    State of Orissa, represented by the Collector, Sundargarh.
                                             ………Proforma Respondent.

The Suit out of which this appeal arises is valued at Rs.12,100/- which is
also the valuation of the present appeal and accordingly court fee of
Rs.1,256/- is paid herewith.


The Suit out of which this appeal arises was never before this Hon’ble Court
in any form whatsoever.


                               F A C T S
   1.    That the appellant (plaintiff and respondent No.1) filed Title Suit
         No.13/1993 in the Court of the Civil Judge (Senior Division),
         Sundargarh for the following reliefs :-
     A. That the plaintiff’s right, title and possession over the suit land
        may be confirmed, declared and decreed;
     B. That the Sale Deed executed on 28.2.1992 by Defendant No.1
        in favour of Defendant No.2 may be declared null and void and
        not binding on plaintiff;
     C. That the Defendants No.1 and 2 may be permanently injuncted
        from creating any sort of construction or illegal encroachment
        over the suit land.
     D. That in case of dispassion of plaintiff, possession may be
        restored through the Court;
     E. That during the pendency of the matter before the Court for
        final adjudication, an ad-interim injunction order, Ex-parte may
        be issued in favour of the plaintiff restraining the Defendant
        Nos. 1 & 2 and their agents from making any sort of
        construction work on the suit land;
     F. That the cost of the suit may be awarded and declared and
        decreed to the plaintiff;
     G. That all equitable and consequential reliefs as the Court deems
        proper;
2.   That the case depicted by the appellant (plaintiff-respondent No.1)
     in nutshell is that Jaykrushna Patel, father of the plaintiff and
     Sahadev Patel were two brothers. They had land comprising an
     area of AC 22.06 decs. under Sabik Khata No.17 of village-
     Bartankalla, which is described in Schedule-A of the plaint. Out of
     the suit Schedule-A land, the suit land relates to Sabik Plot No.20
     measuring for an area of Ac. O.28 decs. described in Suit
     Schedule-D land of the plaint corresponding to Hal Plot No.57 for
     an area of Ac.O.15 decs. It is averred in the plaint that in an
     amicable partition between the two brothers, the suit land was
     allotted to the share of the father of the plaintiff and he was in
     possession thereof. The Hal Khata No.65 of village Bartankalla
     tola-Nuamunda with respect to an area of Ac.22.96 decs. in the
     name of the plaintiff alone which described as Schedule-B land.


     After the death of plaintiff’s father, the plaintiff possessed the
     entire Ac.0.28 decs. of Sabik Plot No.20 by constructing two
residential houses, ( Small Jhumpudies) for giving accommodation
to their filed servant, i.e. Gotis, those who were coming from the
other villagers for convenience of agricultural work. One Sahadev
Ganda and Suresh Patel were occupying those houses as they were
the labourers of the plaintiff. Sahadev after working 5 to 6 years as
the filed-servant under the plaintiff left the service, after which
Dhani Ganda was staying in the Jhumpudies for 10 to 15 years and
subsequently, he died. The suit house was in a dilapidated
condition and the plaintiff after its removal is cultivating it since
last 20 years. Sahadev left the service and went to Suarijore tola,
where his son Uttam was working since last 25 years leaving the
land, house and family. On 25.2.1992 the plaintiff for the first time
came to know from Defendant No.2 when he disclosed in the
village about his purchase of the suit land from Defendant No.1
who is the son of Sahadev Ganda. Defendant No. 2 also threatened
the plaintiff to construct house on the Bari portion of the suit land
adjoining to the house of Suresh Patel. The plaintiff on enquiry
from the Tahasil office ascertained that the suit land has been
wrongly recorded in the name of Defendant No.1 Uttam Ganda as
‘Gharabari’ in Hal Settlement Khata No.7, which is described in
Schedule-C land.


The recording of the said suit land in the name of the Defendant
No.1 is contrary to law and illegal. Further the plaintiff has got his
Mango tree, Palm tree, and Banyan tree over the suit land, which
he is enjoying peacefully. But on further enquiry, the plaintiff
came to learn that Defendant No.1 illegally and surreptiously has
obtained the Hall Patta and accordingly has fraudulently sold Hal
Plot No. 57 comprising an area of Ac.0.15 decs. to Defendant No.2
vide Registered Sale Deed No.893 dated 28.9.1992 for a
consideration of Rs.12,000/- though he has no right, title and
possession over it. When Defendant No.2 being emboldened with
his money and man power, threatened the plaintiff to construct
houses over the suit land for which the plaintiff was constrained to
file T.S. Suit No.13/1993 for cancellation of the Registered Sale
Deed No.893 in favour of Defendant No.2.
3.   That the respondents (Defendants-appellants) entered appearance
     and filed their written statement admitting that the father of the
     plaintiff and Sahadev Patel are brothers who have got joint
     ancestral property in village-Bartankalla. It is also admitted that the
     plaintiff and other co-sharers are possessing separate portions of
     land on the basis of portion effected between them long back.
     Further according to the defendants, Sabik Plot No.20 comprising
     an ara of Ac.0.20 decs. fell to the share of plaintiff’s father. It is
     further admitted by the defendants that the plaintiff is a recorded
     tenant with respect to Hal Khata No.65 of village Bartankalla,
     which is the B-shedule property. It is denied by the defendants that
     at no point of time, the plaintiff ever constructed house and
     residential building on the suit plots and that he had kept for field
     servants. The respondents further said that plaintiff’s father has
     made an oral sale of an area measuring Ac.0.15 decs. for a
     considering of Rs.15/- from the suit land to the father of the
     defendants, over which defendant’s father constructed house and
     was staying there. Subsequently, Defendant No.1 shifted his
     residential houses to Suarijore in the year 1977 and staying there as
     a purchaser. According to the defendants, the plaintiff’s father got
     some ‘Anabadi’ land by way of lease Patta and in the current
     Settlement Rayati Patta has been granted in his favour in respect of
     an area of Ac0.20 decs. Further, it is admitted by the defendants
     that Defendant No.1, his mother and his brother are possessing the
     suit land measuring an Ac0.15 decs. peacefully with hostile and
     adversely to the interest of the plaintiff the true owner and
     therefore they have perfected their title over the suit land by way of
     adverse possession. After the death of their mother and brother, the
     dwelling house was damaged for which Defendant No.1 being
     urgently in need of money for payment of old debts and
     improvement of agricultural land, he sold lands for a consideration
     of Rs.12,000/-. As the vendee is a non-Scheduled Caste person,
     accordingly necessary permission was taken from the Sub-
     Divisional Officer, Sundargarh in Misc. Case No.43/1991.
4.   That on the basis of the pleadings filed by both the contesting
     parties the following issues were settled: -
             i)     Whether the suit is maintainable?
             ii)    Whether the suit is barred by Law of Limitation?
             iii)   Whether there is cause of action to file the suit?
             iv)    Is the plaintiff entitled for a declaration of right, title
                    and interest and is he in continuous possession of the
                    suit land and constructed Jhumpudies for keeping
                    the filed servants?
             v)     Is the plaintiff entitled for a permanent injunction?
             vi)    Whether the defendants are in continuous and
                    adverse possession of the suit land constructed
                    residential houses since the year 1933 and thereafter
                    his brother and mother possessed it till the
                    Settlement operation?
             vii)   Is the plaintiff entitled for a declaration that the Sale
                    Deed executed in favour of Defendant No.2 is void?
             viii) Whether plaintiff’s father made an oral sale of
                    Ac.0.15 decs. of land for a consideration of Rs.15/-
                    out of the suit land to defendant’s father and the
                    defendant’s father constructing the house was
                    staying there and that defendant No.1 sold the suit
                    land along with other land to Defendant No.2 for a
                    consideration of Rs.12,000/- vide Registered Sale
                    Deed No.893 dated 28.9.1992?


5.   That the appellant (plaintiff-respondent No.1) in order to prove his
     case examined four witnesses including him and also produced
     five documents to prove the relevant facts. The defendants
     examined four witnesses including him and also produced eleven
     documents to prove their case. The Learned Trial Court, after
     analyzing both oral and documentary evidence decreed the suit on
     contest against the Defendant Nos. 1 & 2 and ex-parte against the
     Defendant No.3 with costs.
6.   That the Learned Trial Court while taking of issues Nos. IV, V &
     VII together, held that the plaintiff / appellant is all along in
     possession of the suit land and the defendants /respondents 1 & 2
     are trespassers having no right, title and interest are creating
     disturbances in the peaceful possession of the plaintiff over the suit
     land. It was further held that the Sale Deed executed by Defendant
     No.1 in favour of the Defendant No.2 for Ac.0.15 decs. of land
     cannot be deemed to be a valid sale, since the Defendant No.1
     having no title and not being in possession of the suit land had no
     right to sell it to the vendee i.e. Defendant No.2.


     While answering issues VI and VIII in favour of the appellant, the
     Learned Trial Court held that the stand taken by the defendants the
     consent given by the plaintiff and his signing before the A.S.O. is
     false and does not stand to any reason. The Learned Trial Court
     further held that the possession of the Defendant No.2 does not
     stand to any reason, because the suit house has been demolished
     since last 30 years as is evident from the evidence of witnesses. It
     further held that the house of Uttam (Defendant No.1) is not the
     house of Dhani and Dhani is not his brother. The Learned Trial
     Court conclusively held that the suit land was never sold on oral
     basis to the father of the Defendant No.1, and the house given to
     Dhani is not the house of Sahadev and the defendants have not
     been able to prove by way of positive, cogent and satisfactory
     evident that they are in long continuous, adverse possession of the
     suit land. On the contrary from the materials on record it is proved
     that the nature of possession is permissive in the worst case, but
     not adverse by any stretch of imagination. Accordingly, the entry is
     a fraudulent entry behind the back of the plaintiff though the
     Defendant No.1 has no legal title to possess the suit land. The
     Learned Court below further held that the defendants have no
     doubt admitted that the plaintiff is the true owner of the suit land.
     The Learned Trial Court further held that the suit is maintainable
     and within the prescribed period of limitation.
7.   That being aggrieved by the judgment and Decree dated 31.3.2000
     and 7.4.2000 respectively by the Learned Civil Judge (Senior
     Division), Sundargarh the Defendant Nos. 1 & 2 preferred Title
     Appeal before the Learned District Judge, Sundargarh which was
     ultimately transferred to the Court of the 1st Adhoc Additional
     District Judge, Sundargarh and the appeal was registered as Title
     Appeal No.14/9 of 2000. The Learned 1st Adhoc Additional
     District Judge, vide his judgment and decree dated 28.7.2005 and
     2.8.2005 respectively dismissed the suit with wrong and illegal
     approach. Besides, the finding of the Learned Lower Appellate
     Court is vitiated because of his reasoning, which are opposed to the
     settled principles of Law. Being aggrieved by the Judgment and
     Decree dated 28.7.2005 and 2.8.2005 respectively passed by the
     Learned 1st Adhoc Additional District Judge, Sundargarh in T.A.
     No.14/9 of 2000 the plaintiff-respondent No.1 begs to prefer this
     appeal on the following amongst others.


8.   That the finding of the Lower Appellate Court is perverse for the
     reason that is against the weight of the materials on record and
     further the reasoning is based on an erroneous approach.


     It is the settled position of law that a person who claims his right
     on the basis of a oral sale has to, by cogent and un-impeachable
     evidence satisfied the Court that possession has been delivered to
     him and the value of the property is less than Rs.100/- in order to
     get over the rigorous of Section 54 of the T.P. Act. Section-9 of the
     T.P. Act speaks of oral transfer but unfortunately the Learned
     Lower Appellate Court has lost sight of the provision      of Section
     9 of the T.p. Act and without any material on record came to hold
     that the property was sold orally by predecessors of Defendant
     No.1 to predecessors of Defendant No.2.


9.   That it is further humbly submitted that though the Learned Lower
     Appellate Court attaches importance to the main question in the
     appeal as to whether the defendants were in hostile continuous
     possession of the suit land, by virtue of which they had perfected
their title to the land by adverse possession. While dealing with
such aspect the Learned Lower Appellate Court has gone hayward
to hold that there has been a oral sale by the predecessors of
appellant in favour of the predecessors of respondent No.1. In
other words, Learned Lower Appellate Court has blown hot and
cold on the same breath holding that there has been a oral sale and
subsequently giving finding in favour of the adverse possession.


Besides, though there is no evidence regarding hostility and further
the defendants have not led any evidence regarding hostile
possession, Learned Lower Appellate Court committed error in
holding adverse possession in favour of the Defendant Nos. 1 & 2 /
Respondent Nos. 1 & 2.


Therefore, the finding of the Learned Lower Appellate Court
becomes vulnerable more so when it held that there is a bonafide
mistake occasioned inadvertently by DW-1.


Substantial Questions of Law :-
A)       Is the Lower Appellate Court right in holding adverse
         possession in favour of the Respondent Nos. 1 & 2
         especially when there is no evidence regarding hostile
         possession?
B)       Is the Lower Appellate Court correct in holding adverse
         possession in favour of the Respondent Nos. 1 & 2 after
         coming to a conclusion that oral sale has been effected by
         the predecessors of the plaintiff-appellant in favour of the
         predecessors of the defendant-respondent No.1?
C)       Can finding of the Lower Appellate Court in regard to
         oral sale be sustained especially when the requirement of
         Section 9 of TP Act has not been complied with and there
         is no evidence to that extent?
D)       Whether the finding of the Lower Appellate Court is
         perverse for non-consideration of the materials in their
         true perspective?
   E)        Whether the learned Lower Appellate Court is justified in
             toppling the judgment and decree of the Lower Court
             merely because there are two views possible from the
             materials on record especially when the Learned Trial
             Court has accepted and expressed one view though
             another view is possible.


   Reliefs sought for :-


   The appeal be admitted, notice be issued to the respondents, LCR
   be called for and after hearing the parties, this Hon’ble Court may
   be pleased to allow this appeal by setting aside the judgment dated
   28th July, 2005 and decree dated 2nd August, 2005 passed by the
   Adhoc Additional District and Sessions Judge, Sundargarh in Title
   Appeal No.14/9 of 2000 and decree in the suit as has been done by
   the Learned Trial Court by judgment dated 31 st March, 2000 and
   decree dated 7.4.2000;
   And for this act of kindness the appellant, as in duty bound, shall
   remain ever pray.


                                             By the Appellant through
   Cuttack
   Date :
                                                    Advocate
                       CERTIFICATE
The substantial questions of Law set forth in the appeal are good
grounds and the Counsel for the appellant undertakes to substantiate
the same at the time of hearing.


                                                      Advocate
                           CERTIFICATE
Certified that due to non-availability of cartridge papers this has been
typed in thick white papers.

                                                      Advocate
     IN THE HIGH COURT OF ORISSA : CUTTACK
                         Misc. Case No.           /2005
                     (Arising out of R.S.A. No.       /2005)


In the matter of :
                     An application under Section 149 C.P.C.

                                 And

In the matter of :
                     Nilamani Patel                   …… Petitioner.

                                 Versus

                     Uttam Tanty & others         …….. Respondents.

To
      The Hon’ble Sri S. B. Roy, LLB, the Chief Justice and His companion
      justices of the Hon’ble High Court of Orissa.

                                               The humble petition of the
                                               above named petitioner.


MOST RESPECTFULLY SHEWETH:-

1.    That the petitioner in the aforementioned appeal has challenged the
      judgment and decree dated 28.7.2005 and 2.8.2005 respectively
      passed by the 1st Adhoc Additional District Judge, Sundargarh in Title
      Appeal No. 14/9 of 2000.

2.    That the petitioner has a fair chance of success, which can be seen
      from, bare perusal of Appeal Memo and may be treated as part of this
      petition.

3.    That the petitioner is facing a lot of financial crisis for which he could
      not arrange Court fee in spite of his best efforts.
4.    That in the interest of justice this Hon’ble Court may be pleased to
      dispense with the Court fee that in the interest of justice this Hon’ble
      Court may be pleased to dispense with the court fee presently and the
      appellant/petitioner shall pay the same at the time of admission of the
      aforesaid R.S.A.
                       P R A Y E R




It is, therefore, prayed that this Hon’ble Court may be pleased to allow
this petition, dispense with the court fee presently and this petitioner
shall deposit the court fee at the time of admission.


And for this act of kindness the petitioner, as in duty bound, shall
remain ever pray.




                                               By the Appellant through
   Cuttack
   Date :
                                                        Advocate
                         A F F I D A V I T


I, Manmoham Panda aged about 39 years, S/o- MaguniCharan Panda, At-
Bhasakosh Lane, Mukur Press Premises, Nimchouri, Po- Chandnichouk
Dist- Cuttack, do here by solemnly affirm and state as follows:-


1. That I am the Advocate’s Clerk in the aforesaid misc case.


2. That the fact stated above are true to best of my knowledge and belief.




                                                       DEPONENT
Cuttack
Date:




Identified by


Advocate’s Clerk




                         CERTIFICATE


   Certified that due to non-availability of cartridge papers this has been
   typed in thick white papers.



                                                     Advocate

				
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