HIGH COURT OF ORISSA: CUTTACK. R.F.A. NO.261 of 2006 From the judgment dated 23.11.2006 and decree dated 13.12.2006 passed by Shri P.C.Dash, LL.M., 2nd Additional Civil Judge (Senior Division), Bhubaneswar in T.S.No.472/734 of 2004/2000. --------- Saratbala Behera …… Appellant - Versus- State of Orissa and others …… Respondents For Appellant : M/s. Bidhayak Patnaik and S.K.Swain. For Respondent : Additional Government Advocate --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 30.3.2011 :: Date of judgment – 15.4.2011 B.K. PATEL, J. Unsuccessful plaintiff is in appeal against judgment and decree passed by learned 2nd Additional Civil Judge (Sr.Divn.), Bhubaneswar in T.S. No. 472/734 of 2004/2000. 2. Plaintiff’s suit is a suit for declaration of title over the suit land comprising of Ac.0.077 decimals of land in Plot No. 717/1554 under Khata No. 297 of Mouza Bhoinagar in the Hal R.O.R. Ext.8. . Plaintiff’s case is that suit land is a part of land measuring Ac.0.980 decimals in Plot No. 171 recorded under Khata No. 03 of mouza Bomikhal in the Sabik ROR Ext.2 in the names of Nakula Behera and his co-sharers. Nakula Behera sold land measuring Ac.0.072 decimals out of suit plot under registered sale deed dated 19.04.1974 to plaintiff’s vender Brundaban Behera who sold the same to plaintiff under registered sale deed Ext.4 dated 28.10.1981. Since the date of purchase plaintiff is in possession over the suit land. She constructed house over it after obtaining due permission Ext.6 from Bhubaneswar Development Authority. During settlement operation plaintiff produced document of her title over the suit land but suit land was wrongly recorded as ‘Anabadi’ land of the G.A.Department. It is averred that land out of Sabik Plot No. 171 purchased by other vendors were recorded in their names. Plaintiff alleges to have filed the suit as G.A.Department personnel threatened to dispossess her from the suit land. 3. No written statement was filed on behalf of respondents/defendants. 4. Considering the plaint pleadings, following issues were settled by the learned trial court: “1. Whether the suit is maintainable ? 2. Whether the suit is barred by limitation ? 3. Whether the plaintiff derived her right, title, interest over the suit schedule land on the strength of R.S.D.No.7917 dtd.28.10.81 executed by her vendor in her favour in respect of the suit schedule land ? 4. What other relief the plaintiff is entitled ?” 2 5. In order to substantiate her case plaintiff examined herself P.W. 1 and relied upon documents marked Exts. 1 to 10/a. No evidence, oral or documentary, was adduced from the side of the defendants. 6. On appraisal of evidence on record learned trial court categorically answered issue no.3, which is most vital issue, in favour of the plaintiff. The finding at para-10 of the impugned judgment reads: “Plaintiff has purchased a part of the suit plot from Brundaban Behera who purchased it from one of the Share-holders namely Nakula Behera. It is a fact that the plot No. 171 is recorded in the name of six co-sharers having an area of Ac. 0.980 decs. But one of the share holders sold land measuring an area of Ac.0.072 decs. which is not exceeding his share out of the total area of the suit plot. So, plaintiff derived her right, title, interest over the suit plot No. 171 on the strength of R.S.D. No. 7917 dtd.28.10.81 executed by her vendor Brundaban Behera in her favour.” However, the suit appears to have dismissed on the ground that plaintiff failed to co-relate land in Hal plot no.717/1554 with land in Plot no.171 purchased by the plaintiff on the strength of registered sale deed Ext.4. While answering Issue nos.1 and 4 at para 11 of the judgment learned trial court has held: “Plaintiff has proved her title in respect of plot No. 171 but fails to co-relate the hal plot No. 717/1554 having an area of Ac.0.077 decs. with plot no. 171 of an area of Ac. 0.072 decs. by filing corresponding plot index and comparison of sketch map of both the plots. As the plaintiff has got right over her purchase land, she filed the suit for declaration of title over the same. So, the suit is maintainable at its first instance. But as the plaintiff has fails to substantiate her pleading relating to limitation as well as fails to produce her corresponding plot numbers of her purchase land and the land recorded in the name of G.A. Deptt. Vide Ext. 8, so, it can be held that the suit is not maintainable. The plaintiff is also not entitled for any other relieves. 3 7. During pendency of the appeal, Misc.Case No.105 of 2011 was filed by the appellant under Order 41 Rule 27 of the C.P.C. to admit certified copy of the plot index of the hal plot no.717/1554 as a piece of additional evidence. The application was heard along with the appeal. Learned counsel for the State appearing for the respondents did not raise serious objection to the application for additional evidence conceding that it is a public document. 8. In assailing the impugned judgment it is submitted by the learned counsel for the appellant that the respondents/defendants chose not to file any written statement. Therefore, averments made in the plaint remain uncontroverted. On the basis of evidence on record learned trial court held the plaintiff to have established her title over part of land in Sabik Plot no.171 purchased on the strength of registered sale deed Ext.4. Plaintiff has pleaded and proved that parcels of lands out of Sabik Plot no.171 purchased by some other persons have been recorded in their names. No evidence was adduced from the side of the defendants to suggest or indicate that Hal Plot No.717/1554 does not relate to land which plaintiff purchased under Ext.4. In the circumstances, it was argued that, the suit ought to have been decreed declaring plaintiff’s title over the suit land. It is further argued that even if learned trial court had any doubt regarding co-relation between suit land under Hal Plot No.717/1554 and land in Sabik Plot No.171, suit ought to have been decreed declaring plaintiff’s title over the land 4 which she purchased under registered sale deed Ext.4. It is further contended that in order to clarify the ambiguity, if any, appellant has produced certified copy of plot index indicating that land under Plot No.717/1554 in Hal Khata No.297 of village Bhoinagar relates to part of Sabik Plot No.171 of village Bomikhal. As plot index is a public document prepared on the basis of records maintained by the Tahasildar, the document is to be admitted as a piece of additional evidence. 9. Learned counsel for the State appearing for the respondents supported and defended the impugned judgment. It was contended that the plaintiff having failed to co-relate suit land in Hal Plot No.717/1554 and Sabik Plot No.171, learned trial court rightly dismissed the suit. 10. Genuineness of plot index sought to be marked as a piece of additional evidence by the appellant is not at all disputed. Document reveals that Hal Plot No.717/1554 of mouza Bhoinagar corresponds to Sabik Plot no.171 of mouza Bomikhal. Therefore, keeping in view relevancy and admissibility of the plot index, the same is admitted into evidence and marked Ext.11. 11. Learned trial court has come to a categorical finding that plaintiff has proved her title in respect of that portion of land under Sabik Plot No.171 which she purchased under Ext.4. Therefore, contention made on behalf of the appellant to the fact that trial court ought to have decreed the suit declaring plaintiff’s title over the land purchased under registered sale deed Ext.4 is not without substance. 5 Be that as it may, Ext.11 plot index substantiates plaintiff’s assertion that the suit Hal Plot No.717/1554 corresponds to part of Sabik Plot no.171 which the plaintiff has purchased under sale deed Ext.4. Therefore, plaintiff is entitled to declaration of her title over the suit land. In the result, the appeal is allowed. The impugned judgment and decree are set aside. T.S. No. 472/734 of 2004/2000 of the court of learned 2nd Additional Civil Judge (Sr.Divn.), Bhubaneswar is decreed in favour of the plaintiff declaring plaintiff’s title over the suit land. ….……………… B.K. Patel, J. Orissa High Court, Cuttack, Dated the 15th of April,2011/Aswini 6