ORISSA HIGH COURT: CUTTACK. R.S.A. No. 315 OF 2003 From a judgment and decree dated 29.03.2003 and 19.04.2003 respectively passed by Shri G. Pravakar Rao, learned Ad hoc Additional District Judge, Gunupur passed in First Appeal No. 3 of 2002 confirming the judgment and decree dated 07.07.1997 and 24.07.1997 respectively passed by Shri B.S. Mohapatra, learned Civil Judge (Senior Division), Gunupur in Title Suit No. 11 of 1994. ----------- Goura Chandra Padhy & another …… Appellants -Versus- Suryanarayan Pundit and others. …… Respondents For appellant : M/s. B. Pal, A. Pal, B.P. Mohapatra. For respondents: M/s. B.N. Ratho, J.N. Ratho, S.K. Jethy, M.K. Panda, P.S. Samantaray, M.K. Singh Deo, P.R. Sahoo, P.K. Behera & S.K. Mishra, (For Respdts.1, 2, 3, 4, 5, 6, 7 & 8) Mr. Subrat Satapathy, (For PLRs. 1 (a) to 1 (d). ------------------------------------ Date of Judgment: 24 .01.2012 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. This Second Appeal was admitted on 09.07.2003 on the following substantial questions of law:- (A) Whether a notice by D.W.1 to Ammymma Pandit to deliver possession of suit property, who are not parties in the suit would be an admission in respect of delivery of possession of the suit property by the vendor (Raghunath Pandit) to the vendee/plaintiff nos.1 and 2 vide sale deed no.358 dated 13.6.1974 ? (B) When there is a conflict in description on immovable property in the sale deed, whether the boundaries descriptions mentioned in the sale deed is to be preferred over other description for example Khata number and plot number?” (C) When the vendor (Raghunath Pandit) had delivered the possession of the entire land sold under Ext.1 extending to Ac.3.30 cents of plot no.9/1, Khata No.31 to the plaintiffs, whether the Tahasildar can mutate in favour of the plaintiffs only Ac.2.03 cents from plot no.9/1, Khata No.31 of Mouza – Marathiguda ? 2. The appellants as plaintiffs filed a suit for declaration of title, confirmation of possession and in the alternative for recovery of possession with an ancillary relief of permanent injunction against the defendants over the suit schedule properties measuring Ac.1.27 decimals. It was the case of the appellants as plaintiffs that they purchased the suit land along with land measuring Ac.2.03 decimals by the registered sale deed Ext.1 executed by one late Raghunath Pandit on 13.06.1974 under Ext.1. After purchase, they filed a Mutation Case in 1982 by which day, some property appertaining to plot no.9/1 was sold by the legal heirs of late Raghunath Pandit in favour of the contesting respondents by two sale deeds, certified copies of which are Exts. 2 and 3. In the mutation case, the Tahasildar allowed the mutation with respect to land measuring Ac.2.03 decimals appertaining to plot no.9/1, but did not allow the mutation with regard to the rest of the portion of the purchased 2 land under Ext.1, which is the disputed land in the suit and was stated to be appertaining to plot no.14/1. This led the plaintiffs to file the suit. 3. The defendants, inter alia, pleaded that plot no.9/1 was a big patch of land out of which, some portions were acquired by the Government. Ac.2.03 decimals were sold to the plaintiffs under Ext.1 and the balance property was purchased by them. As a matter of fact, some of the defendants-respondents have also sold portion of their land to other persons, as appears from the materials on record. The plaintiffs have also sold some portion of their purchased land from plot no.9/1. The plaintiffs made out a case that even though the plot number has been mentioned as 14/1 in Ext.1, but the said land, as per the boundary descriptions, appertains to plot no.9/1 and not plot no.14/1. 4. The learned courts below on analyzing and appreciating the evidence adduced before the learned trial court, found that there is some amount of admission on the part of the plaintiffs that they have purchased Ac.2.03 decimals of land out of plot no.9/1. 5. Mr. Pal, learned counsel for the appellants submitted that the learned courts below have acted contrary to law in taking the statement of one of the plaintiffs, who was examined as P.W.2 to be the admission with regard to the fact 3 mentioned in the reply to the Lawyer’s notice issued to them by the wife of late Raghunath Pandit that they were delivered possession of land to an extent of Ac.2.03 decimals from plot no.9/1. He further submittd that the learned courts below have failed to appreciate the materials with regard to the fact that the plaintiffs asserted possession over the entire purchased property of Ac.3.30 decimals by taking the boundary of the plot no.14/1 mentioned in Ext.1 to be correct, which actually is included in plot no.9/1. 6. Mr. Ratho, learned counsel for the contesting respondents, on the contrary, submitted that after purchase of the land by the respondents, they have also sold some portion of land to various purchasers and have delivered possession to them, which also finds place in the judgment of the learned courts below. He further contended that as admittedly, plot no.9/1 was jointly recorded in the name of late Raghunath Pandit and his wife, who were co-owners of the same and hence, only late Raghunath Pandit was not competent to sell the property to the plaintiffs in respect of plot no.9/1. 7. Mr. Pal relying upon the judgment in the case of Bibhuti Bhusan Mohanty v. Kulamani Das and others, 39 (1973) CLT 589 submitted that under Section 145 of the Indian Evidence Act previous statement made by the plaintiff amounting to an admission on the relevant question in issue may be proved 4 and accepted as substantive evidence without the previous statement being confronted, when the plaintiff is examined as a witness. But regarding the other witnesses, under Section 145 of the Indian Evidence Act, they can be contradicted by their previous statements, when confronted. This Court on the above analysis, held in the said decision that it is clear that the previous statement of the witnesses, who are not parties, can be only used for the purpose of contradiction and not as substantive evidence. 8. This Court fails to understand as to how the ratio of the aforesaid decision is relevant for the purpose of this case. 9. The learned courts below in the impugned judgments have analyzed each item of evidence, both documentary and oral, in coming to the conclusion that the plaintiffs’ title over the disputed property cannot be declared, as the same cannot be construed to be a part of plot no.9/1. 10. I do not find any reason to disturb such findings, as I find that the substantial questions of law framed at the time of admission of the appeal, are not involved in this appeal for adjudication nor any other substantial question of law arises for determination. 11. The Second Appeal is accordingly dismissed, but in the circumstances without cost. …………………… M.M. Das, J. 5 Orissa High Court, Cuttack January 24th ,2012/Biswal. 6