KRUSHNA CHANDRA SAHU Vs. KHETRABASI PANDA AND ORS.

JUDGEMENT

(1.) THIS is an appeal against a reversing judgment of the Subordinate Judge, Jaipur in a suit by the Plaintiff for cancellation of a sale deed and for confirmation, or, in the alternative, recovery of possession of the disputed property from Defendant No. 1.

(2.) SHORN of details the facts are these: The Plaintiff had a Bajyapti Madhyaswatwadhikari interest in the disputed property. He Executed a sole deed Ext. A dated 20.8.1957 in respect of this property in favour of Defendant No. 1 for Rs. 200/ -. Plaintiff 's case is that although he Executed the Kabala it was a nominal one and had not been Acted upon and that he did not deliver possession to Defendant No. 1. He therefore, brought the suit in the year 1960 for cancellation of the sale deed and for confirmation of his possession therein, or, in the alternative for recovery of possession of the same. Defendant No. 1 who aloe contested the suit contended that the sale deed is genuine, that consideration had been paid thereunder by him to the Plaintiff and that possession had been delivered to him.

(3.) LAW is now well -settled that the hearing of an appeal under the procedural law of India is in the nature of re -bearing and therefore in (sic) the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower Court 's decision was correct according to the law as it stood at the time when its decision was given. See Lachmeshwar Prasad Shuki and Ors. v. Keshwar Lal Chaudhuri and Ors., A.I.R. 1951 P.C. 5. This view of the Federal Court was reiterated in Gumalpura Taggina Matada Kotturuswami v. Setm Veerayya and Ors. : A.I.R. 1959 S.C. 577, and had been consistently followed in this Court, Janardan Naik and Anr. v. Khegeswar Naik and Ors. : A.I.R. 1963 Orissa 130 : 1963 C. L. T. (Notes 91) 63, and Radhacharan Das Babaji v. Bhima Patra : A.I.R. 1965 Orissa 1. The learned Subordinate Judge was, therefore, right in taking into consideration the events that transpired subsequent to the institution of the suit, namely the vesting of the disputed property in the State under the provisions of The Orissa Estates Abolition Act and the settlement of the disputed lands with the Plaintiffs in accordance with the provisions of Sections 7 and 8.A of the Act. Regarding the consequences of such vesting the view that was held by this Court was that rights and liabilities created in respect of properties which latter on vested in the State under the provision is of the Act and which are subsequently settled with the person creating the rights and liabilities, continue to exist. It was accordingly held by a Bench of this Court in Brundaban Chandra Dhir alias Krushna Chandra Singh v. Natabar Chandra Dhir, I.L.R, 1963 Cuttack 914, that where a certain item of property consisting of (sic) lands of the proprietor with buildings standing thereon was charged under a maintenance decree and after the abolition of the estate it was settled with The proprietor as a tenant subject to payment of fair and equitable rent, the charge on the item of the properties attached to the decree prior to the date of vesting continues to exist and the decrial amount can be realised by sale of that property. This decision was rendered by the Bench relying on a Full Bench decision of the Patna High Court in Sidheswar Prasad Singh and Ors. v. Ram Saroop Singh and Ors., A.I.R. 1953 Pat. 412. Relying on this decision, a learned single Judge of this Court held in Bhagaban Rath v. Annada Das : 34 (1968) C.L.T. 1289, that: