GANESH PASUPALAK Vs. LAKMESWARI DEVI

JUDGEMENT

(1.) THE unsuccessful plaintiffs are in appeal against the judgment and decree of learned Subordinate Judge, Aska passed in Title Suit No.13 of 1980. The appellants as plaintiffs filed that suit for declaration of their right title over the suit land measuring an area of Ac.7.46 decimals appertaining to plot No.422 in Khata No.77/62 of village Badagada. Their case in substance was that the suit land was PARITYAKTA O BEDAKHALI rayati land standing in the name of the Zamindar, who leased out 2 acres out of the said land to plaintiff -appellant No.1 for 3 years and accordingly, the plaintiff No.1 cultivated that land and paid Rajbhag to the then Zamindar and obtained receipts; even after expiry of the 3 years lease, plaintiff No.1 continued to possess the aforesaid 2 acres of land on payment of Rajbhag and acquired occupancy right over that land. It was further averred that in the year 1948 the then Zamindar Kishore Prasad Singh died and on the 11th day of his obsequies ceremony his successor Zamindar Mohan Prasad Singh gifted the remaining part of the suit land measuring Ac.5.46 decimals to the plaintiff No.1, who was a Brahmin and family priest of the Zamindars family. In these process plaintiff No.1 possessed the entire Ac.7.46 decimals of the suit land. In the year 1952 Zamindar Mohan Prasad Singh was in need of money and he took Rs. 5,000/ - from plaintiff No.1 with an assurance that he would execute sale deed in respect of the 2 acres of suit land which the plaintiff No.1 was in occupation as a lessee and in fulfillment of that promise he executed a sale deed on 24.9.1996 and accordingly plaintiff No.1 became the owner and person in possession of the entire suit land. In the year 1969 he sold a portion of the suit land to one Niladri Mohanty, but after the said sale, Niladri Mohanty leased that land to plaintiff No.1 and accordingly, plaintiff No.1 possessed the land as lessee giving Rajbhag to Niladri. In 1973 plaintiff No.2, who is the son of the plaintiff No.1 purchased the same land from Niladri Mohanty where after the plaintiffs together possessed this land. In the year 1974; they applied for mutation of the suit land and such mutation was allowed. The defendants later on filed review petition before the Tahasildar, which was rejected. They preferred appeal, but that appeal was also dismissed. When the matter stood thus, in the year 1975 the defendants with the assistance of his men reaped away paddy crops from the suit land for which the plaintiffs initiated a criminal case u/s. 379, I.P.C. and a proceeding under Section 144 Cr.P.C., which was subsequently converted to a proceeding u/s. 145, Cr.P.C. The criminal case ended in acquittal and the land remained attached with 145 Cr.P.C. proceeding. In that situation, to clear the doubt about their ownership over the suit land, the plaintiffs filed the suit asking for declaration of their occupancy right over the suit land.

(2.) THE defendants filed joint written statement denying the claim of the plaintiffs and pleaded inter alia that the suit land was the private land of the Zamindar and no part of it was ever given on lease or gift to plaintiff No.1. According to them, the plaintiffs never possessed the suit land as roiyat and never paid any Rajbhag and no receipt was granted to him. According to the defendants, the plaintiff No. was the general power of attorney holder and Manager of Zamindar Mohan Prasad Singh and enjoyed absolute confidence of the Zamindar and taking advantage of such confidence plaintiff No.1 took the signatures of the Zamindar on blank papers and created the documents Exts. 1 and 3 and by clandestine means he also created rent receipts Ext. 2 series. They pleaded that in the year 1959 the estate vested in the State by incorporation of O.E.A. Act and thereafter some of the lands of the estate including the suit land were settled in the name of Zamindar family under Section 7 of the OEA Act. In that O.E.A. proceeding, the plaintiff No.1, as Manager of the Zamindar deposed that the suit land was in personal cultivating possession of the Zamindar. Defendants further averred that in the year 1965 there was a partition in the family of the Zamindar wherein the suit land along with some other lands fell to the share of defendant No.5 and the partition deed was prepared under the direct supervision of plaintiff No.1, who also signed the said deed as witness. It was further pleaded that the sale transaction in favour of Niladri, repurchase of the same land by plaintiff No.2 from Niladri, the lease of that land by Niladri to plaintiff No.1 are all fake and fabricated transactions to create a colorable right of the plaintiffs over the suit land. The defendants specifically pleaded that they were not parties in the mutation proceeding filed by the plaintiffs in 1974 and the said proceeding was carried behind their back and that all along they were in possession of the suit land for which the criminal Courts recognized their right and possession and acquitted them. They also averred that mutation records do not create or extinguish any right title over the land and basing on mutation the plaintiffs have acquired no right over the suit land. They accordingly, prayed for dismissal of the suit with cost.

(3.) IN support of their case the plaintiffs examined six witnesses and produced documents which were marked as Exts. 1 to 29. The defendants also examined as many as seven witnesses and produced documents which were marked as Exts. A to U. On consideration of these evidence, learned trial judge came to the conclusion that the suit lands were private lands of the Zamindar, Ext.1 is a spurious document manufactured behind the back of Zamindar -Mohan Prasad and his signature was obtained by misrepresentation, oral evidence adduced by the plaintiffs with regard to the possession of the suit land since 1944 is not convincing, no reliance can be placed on Exts. 4, 5 and 6 series as the plaintiffs could have manufactured them, no title can be said to have passed to the plaintiffs under Exts. 1 and 3, the plaintiffs have no right title over the suit land and they were never in possession of the same as alleged and jurisdiction of the Civil Court is barred under Section 39 of the OEA Act. With these findings he dismissed the suit on contest with cost.