HIGH COURT OF ORISSA: CUTTACK. FIRST APPEAL NO.187 OF 1986 From the judgment dated 4.8.1986 passed by Sri D.Barik,LL.B., Subordinate Judge,Gunupur in M.J.C.No.50 of 1983. ------------ Somanath Gouda and another ……. Appellants -Versus- Smt. Sunkari Mutyalamma(dead), her LRs Sunkari Sanjeeva & others ……. Respondents For appellants : M/s A.Pal, B.Baug and B.Pal. For respondents : M/s. N.C.Pati, S.Mishra, S.K.Bal and N.Singh. (for Rs.1(a) to 1(d) Addl. Government Advocate ( for respondent no.2) PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL -------------------------------------------------------------------------------------- Date of argument – 9.2.2011 :: Date of judgment- 4.3.2011 -------------------------------------------------------------------------------------- B.K.PATEL, J. Appellants (hereinafter referred to as ‘claimants’) have challenged legality of the order dated 4.8.1986 passed in M.J.C.No.50 of 1983 by the learned Subordinate Judge (now Civil Judge(Senior Division)), Gunupur holding that the amount of compensation for acquisition of case land is payable to the deceased respondent no.1 (hereinafter referred to as ‘objector’) in answer to reference under section 30 of the Land Acquisition Act,1894 (for short, ‘the Act’) made by the Land Acquisition Officer, Koraput in L.A.Case No.26 of 1980. Legal representatives of deceased respondent no.1 have been substituted as respondents 1(a) to 1(g) during pendency of the appeal. 2. Case land measuring area Ac.2.50 decimals under Plot No.33 in Khata No.40 in village Marathiguda originally belonged to late Sukadeba Damba who sold the same to the objector’s husband late S.Appana vide registered sale deed No.642/1957. S.Appana executed sale deed No.1006/1963 in favour of one G.Namasivayya and his wife G.Mutyalamma. G. Kumara Swami and G.Nageswar Rao, grand-sons of G. Namasivayya, executed registered sale dee no.844/1980 in respect of the case land in favour of the claimants. At the time of acquisition case land stood recorded in the name of the claimants under R.O.R. Ext.C. These facts are not in dispute. 3. On acquisition of case land, Land Acquisition Officer passed award for payment of compensation amount of Rs.17,940/- in favour of the claimants. However, objector filed application under section 30 of the Act upon which the dispute was referred for decision to the learned Civil Judge (Senior Division), Gunupur. 4. Claimants’ case is that in a family settlement the case land fell to the share of late S.Appana. S.Appana and his two sons while in possession sold, and delivered possession of case land to G.Namasivayya and G.Mutyalamma by executing registered sale deed no.1006/1963. After death of G.Namasivayya and G.Mutyalamma, case land was sold to the claimants by their grand-sons G.Kumara Swamy and G.Nageswar Rao vide registered sale deed No.844/80. 5. Objector’s stand is that her husband had purchased the case land in plot no.33 as well as land in plot no.21 on the strength of registered sale deed No.642/1957. While in possession S.Appana sold plot no.21 to G.Namasivayya under registered sale deed No.1006/1963. However, case land was included in the sale deed 2 without knowledge and consent of S.Appana. Despite inclusion of case land in the sale deed, case land continued to be in possession of S.Appana till his death and in her possession after his death. Objector is paying rent till date. 6. In support of her stand objector examined two witnesses P.Ws. 1 and 2 without examining herself. P.W.2 happens to be G.Kumar Swamy one of the vendors of claimants under registered sale deed No.844/80. She also relied upon Ext.1, entry in the Land Revenue Receipt Register. Claimants examined two witnesses including claimant no.2 as O.P.W.1 and relied upon documents marked Ext.A, sale deed No.844/80 executed by G. Kumara Swamy and G.Nageswar Rao; Ext.B series, rent receipts and Ext.C, R.O.R.. Considering the materials on record, learned referral court held that the objector is the original owner in possession of the acquired land and entitled to get the amount of compensation. 7. In assailing the impugned order, learned counsel for the appellants/claimants would submit that so far as the referral proceeding is concerned, objector stands in the position of a plaintiff in the suit. Therefore, objector was required to prove that she was the original owner of the acquired case land. Entry in R.O.R. Ext.C establishes claimants’ title and possession over the case land. Objector’s resistance to recording of the names of claimants in the R.O.R. was turned down in Mutation case No.450/81 and Mutation Appeal No.11/83. Claimants have also brought on record Ext.B series rent receipts showing payment of land revenue in respect of the case land by the claimants. Presumption under Ext.B and Ext.C has not been rebutted by the objector in any manner. Objector having failed to discharge the onus to establish that claimants’ 3 vendor had no title over the case land, learned Court below committed illegality in upholding their claim. It was further contended that the objector having not examined herself as a witness in the referral court, learned Court below should have drawn adverse inference against her claim in view of provision under section 114 of the Evidence Act. In support of his contentions, learned counsel for the appellants places reliance on the decisions of the Hon’ble Supreme Court in Adivekka & others –v- Hanamavva Kom Venkatesh ‘D’ by lrs. & another : AIR 2007 SC 2025 and Anil Rishi –v- Gurbaksh Singh : AIR 2006 SC 1971. 8. In reply, it was submitted by the learned counsel for the 1(a) to 1(g) that claimants’ vendors are asserted to have derived title over case land on the strength of sale deed executed in their favour in the year 1963 by S.Appana and his brother. Objector pleaded that the said sale deed was manipulated by including the case land. Though registered sale deed of the year 1963 is the most vital document to adjudicate the dispute between the parties, claimants chose to withhold the document from Court. It was for the claimants to discharge the onus to establish source of their title. Placing reliance on Gopal Krishnaji Ketkar –v- Mohamed Haji Latif and others : AIR 1968 S.C.1413, it was argued that claimants having neither produced nor taken any step to cause production of the sale deed of the year 1963, adverse inference is to be drawn to conclude that the said sale deed supports objector’s stand. It was further submitted that the claimants’ assert to have purchased the case land by virtue of Ext.A in the year 1980 from P.W.2 G.Kumarswamy and his brother G.Nageswar Rao. P.W.2 examined on behalf of the objector categorically admitted in evidence that he had no right, title, interest or possession over the case land. 4 Therefore, claimants having not disputed acquisition of case land by objector’s husband by virtue of sale deed of the year 1957 and having failed to prove passing of title and possession over the suit land by virtue of sale deeds of the year 1963 and 1980, are not entitled to claim title or possession over the case land. 9. Repelling the contentions raised on behalf of the appellants that the objector has failed to discharge the burden of proof to establish her title, it was argued that the question of burden of proof becomes inconsequential after the parties have adduced their evidence. In this connection, reliance is placed on Moran Mar Basselios Catholicos –v- Thukalan Paula Avira and others: AIR 1959 SC 31; Ramji Dayawala & Sons(P) Ltd. –v- Invest Import: AIR 1981 SC 2085; Ashok Kumar and another –v- Gaon Sabha, Ratauli and others : AIR 1981 Allahabad 222 and Smt. Nirmala and others –v- Smt. Rukminibai and others: AIR 1994 Karnataka 247. It was further argued that no adverse inference can be drawn against the objector for failure to examine herself as a witness in view of the fact that she established her assertion on the basis of other evidence on record including evidence of claimants’ vendor P.W.2. In this context, decision in Pandurang Jivaji Apte –v- Ramchandra Gangadhar Asktekar,(dead) by LRs. and others: AIR 1981 S.C. 2235 was pressed into service. 10. Claimants have asserted that their vendors under sale deed Ext.A acquired title over the case land on the strength of sale deed of the year 1963 executed by objector’s husband late S. Appana. Therefore, claimants admit antecedent title of objector’s husband over the case land. Consequently, it is for the claimants to establish and prove passing of title by virtue of sale deed of the year 5 1963 and Ext.A, sale deed of the year 1980. Moreover, objector’s case is that case land was surreptitiously included in the sale deed of the year 1963 by which S. Appana intended to sell another plot to G. Namasivayya and that her husband never parted with possession of the case land. However, claimants did not produce sale deed of the year 1963 in the court. Also evidence on record goes to show that Ext. A, sale deed of the year 1980 has not been duly proved. Rather, evidence of P.W.2, one of the executants of Ext.A, has disproved the contents of the sale deed. 11. Withholding of sale deed of the year 1963 by the claimants which could have been the best evidence to establish passing of title and possession from the objector’s husband to claimants’ father is a circumstance which supports the objector’s stand. In Gopal Krishnaji Ketkar –v- Mohamed Haji Latif and others (supra) it has been held : “ ……Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof…..” 12. Learned court below has dealt in detail and made a critical appraisal on the evidence adduced by both the parties. P.W.1, Revenue Inspector, Gunupur proved Ext.1, entry in the Rent Revenue Receipt Register indicating that objector had paid land revenue for the case land in the year 1981. P.W.2, G. Kumar Swami one of the vendors of the claimants under sale deed Ext.A has materially supported objector’s case and has disproved claimants’ 6 assertion to have acquired title or possession over the case land on the strength of Ext.A. P.W.2 denied to have knowledge regarding sale of Ac.2.20 decimals of land in village Marathiguda to the claimants under sale deed Ext. A. He expressed ignorance regarding the identity of the person who drafted the sale deed and testified that contents of the sale deed was never explained to him. He did not hand over title deed of the land sold under Ext.A to the claimants. P.W.2 went to the extent of deposing that he was not the original owner in possession over the case land. It is in his evidence that his paternal uncle G. Samulu had not been separated from them and that his paternal uncle Mallesu did not sign on Ext.A. O.P.W.1, one of the claimants, has supported P.W.2 in this context. In his examination-in-chief itself O.P.W.1 has testified that co-sharers of his vendor did not execute the sale deed. It is in the evidence of O.P.W.1 that G. Malleyasu is G. Namasivaya’s son and that P.W.2’s mother is alive. Admittedly, G. Malleyasu is not a signatory to sale deed Ext.A. Evidence adduced by the claimants does not indicate that case land fell to the share of their vendors in any family partition. O.P.W.2, who is one of the attesting witnesses to Ext.A, did not depose regarding delivery of the case land to the claimants. In view of specific stand taken by the objector that her husband never parted with possession of the suit land which assertion finds support from P.W.2, there is no basis to hold that there was valid sale either under Ext.A or under the sale deed of the year 1963. Finding of the learned trial court to that effect is, therefore, immune from interference. 13. No doubt, as has been held by the Hon’ble Supreme Court in Adivekka & others –v- Hanamavva Kom Venkatesh ‘D’ by lrs. & another (supra), relied upon by the learned counsel for the 7 appellants, general principle is that non-examination of the party to lis would lead to drawal of an adverse inference against it. However, in the present case, objector’s assertion substantially finds support from the evidence of P.W.2 through whom claimants assert to have derived title over the case land. In Pandurang Jivaji Apte –v- Ramchandra Gangadhar Asktekar(dead) by LRs. and others (supra) it has been held: “The question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record.” 14. Abstract principles of onus of proof based on technicalities cannot be made the basis of any finding or decision. Court is required to render a finding on the basis of materials on record. In Moran Mar Basselios Catholicos –v- Thukalan Paula Avira and others (supra), it has been held: “The question of burden of proof at the end of the case, when both parties have adduced their evidence is not of very great importance and the court has to come to a decision on a consideration of all materials.” In Ramji Dayawala & Sons (P) Ltd. –v- Invest Import(supra) also it has been held that when both parties had laid evidence burden of proof would assume secondary importance. The principle has been reiterated by Allahabad High Court in Ashok Kumar and another –v- Gaon Sabha, Ratauli and others(supra) and Karnataka High Court in Smt. Nirmala and others –v- Smt. Rukminibai and others(supra). 15. In view of such pronouncements with regard to principle relating to burden of proof vis-à-vis appreciation of evidence after the 8 parties adduced their evidence, decision in Anil Rishi –v- Gurbaksh Singh (supra) indicating general principles under sections 101,102 and 106 of the Evidence Act relating to burden of proof is of no assistance to the appellants. 16. In view of positive evidence indicating that objector’s husband and, after his death objector herself, remained in possession of the case land and in view of failure on the part of the claimants to establish acquisition of title over the case land by virtue of sale deed of the year 1963 and sale deed Ext.A, neither entries in the ROR Ext.C nor entries in rent receipts Ext.B series are of help to the claimants. Law is well settled that records prepared by revenue authorities do not create or extinguish title. Presumption, if any, available from such documents has been rebutted by evidence on record. In such circumstances, there is no merit in the contentions raised on behalf of the appellants to find any infirmity with the impugned order. The appeal is liable to be dismissed. 17. Accordingly, the appeal is dismissed. The impugned order is confirmed. Parties shall bear their own cost. ……………….. B.K. Patel, J. Orissa High Court, Cuttack, Dated the 4th March, 2011/Palai 9