SRIMATI SAILABALA TRIPATHY v. BANSIDHAR MISRA — 1974 DIGILAW 199 (ORI)

JUDGMENT : R.N. Misra, J. - The Plaintiff is in appeal against the affirming decree of the learned Subordinate. Judge of Bhubaneswar in a suit for title and other ancillary reliefs In respect of decimals of homestead land located within the town of Bhubaneswar. 2. Plot No. 272 with a total area of 520 Decimals stands recorded in the names of Defendant No. 3, father of Defendant No. 4 and wife of Defendant No. 5 along with one Arjuna Garabadu, who is not a party to this litigation, as per the Record of-Rights (Ext. 11). The Plaintiff claimed that under a registered sale deed dated 7-1-1963 (Ext. 3), she purchased 80 decimals on the southern-most side of this plot from Defendants 3, 4 and wife of Defendant No. 5 for a consideration of Rs. 800/-. One Urmila Parida who is not a party to this litigation and happens to be the wife of one Batakrushna Parida purchased 250 decimals out of this plot from Defendants 3 and 4 under a registered sale deed dated 4-9-1962, a certified copy whereof is Ext. 7. The sale deed describes the purchase to be from the southern side of the plot. Defendant No. 1 purchased 80 decimals from middle of the plot by a registered sale deed date. 13-11-1963 (Ext. B/l) from Defendant No. 5. Similarly Defendant No. 2 made a purchase of 80 decimals of land out of the said plot on the same day from out of the northern side of this plot (Ext. B). The Plaintiff filed the suit on 31-7-1974 having lost in a proceeding u/s 145 of the Code of Criminal Procedure. In paragraph 11 of the plaint she stated: That the Plaintiff has been informed that the Defendant No. 5 has sought to take undue advantage of certain errors in the description of the boundaries of the suit land in the Plaintiff's sale deed and has under that pretext executed the fraudulent sale deeds in favour of the Defendants 1 and 2. The mistake in the sale deed is very superficial and inconsequential as the other particulars including the plot number stated in the deed positively indicate the suit site as the subject matter of the transfer. The vendee-Defendants 1 and 2 filed a joint written statement claiming title in themselves under Ext. B/1 and B respectively. The vendor-Defendants filed another joint written statement. The vendee-Defendants 1 and 2 filed a joint written statement claiming title in themselves under Ext. B/1 and B respectively. The vendor-Defendants filed another joint written statement. The genuineness of the sale deed (Ext. 3) was not disputed in the written statement; But the description given therein was claimed to be correct and it was stated that the Plaintiff's husband inspected the site and on his instructions, the Schedule in the sale deed had been written. When the plaint was amended on additional written statement was filed by Defendants 1 and 2 only. 3. The learned Trial Judge came to find that the Plaintiff had failed to establish the identity of the disputed property and had failed to prove possession over what has been described as the property in the plaint. He further found that the Plaintiff having failed to implead the heirs of Defendant No. 5, who died during the pendency of the suit, the suit had abated in to. He recorded yet another finding that Urmila was necessary party to the suit and the suit as framed, therefore, was defective on account of non-joinder of a necessary party. It may be stated that this judgment was delivered by the trial Court after remand by the learned Subordinate Judge. The learned Subordinate Judge in appeal now stated in paragraph 70? his judgment: By now it is admitted that the suit plot No. 272 belonged to Defendants 3, 4, wife of Defendant No. 5 and one Arjuna Garabadu. The total area of the suit plot is 520 decimals. The Defendants 3, 1 and wife of Defendant No. 5 have executed the sale deed Ext. 3 in favour of the Plaintiff on receipt of consideration of Rs. 800/-. Defendant No. 5 has similarly executed two sale deeds Exts. Band B/l in favour of Defendants 1 and 2. It is also not disputed that the wife of Batakrushna Parida has purchased 250 decimals out of the suit plot which lie to the southern-most side of the suit plot. In none of the sale deeds, the map of the land said to have been purchased (though the purchases are fractions of suit plots) has been attached. The learned Appellate Judge, therefore, made on attempt with reference to the Commissioner's report and map and the evidence on record to find out if the Plaintiff's land has been appropriately identified. In none of the sale deeds, the map of the land said to have been purchased (though the purchases are fractions of suit plots) has been attached. The learned Appellate Judge, therefore, made on attempt with reference to the Commissioner's report and map and the evidence on record to find out if the Plaintiff's land has been appropriately identified. He noticed the discrepancies in the boundaries and came to the conclusion: On the aforesaid analysis of the evidence adduced both by the Plaintiff and the Defendants 1 and 2, it cannot be said that the Plaintiff has been able to establish that the land covered in the sale deed Ext. 3 has been proved to be the land described in the plaint even after its amendment. It seems to me that the Plaintiff has purchased some land lying to the west of the Cuttack-Bhubaneswar road appertaining to plot No. 144 of the Revisional Settlement. The Plaintiff not having come up with a prayer for any relief in so far as that portion of the land is concerned even on equitable consideration, the Court is not in a position to grant her decree in that respect. In paragraph 12 of his judgment, he further observed: The learned Counsel for the Appellant submitted that there can be no doubt that the Plaintiff has purchased 80 decimals of land out of the suit plot on payment of full consideration and therefore on equitable consideration. She should be given some relief. I quite understand the feelings. But unless the Plaintiff establishes the identity of the land purchased by her, it is not possible to grant any relief. If advised, she may come up with a suit for partition. It may also be mentioned here that the sale deed in favour of the Defendants has been executed by the Defendant No. 5 alone. There is no sufficient evidence for a conclusion that Defendant No. 5 alone was competent to effect a transfer of 160 decimals of land covered in Exts. Band B/1 But that is a matter which concerns the other co-sharers of the suit plot. The Plaintiff would have succeeded had she been able to establish the identity of the land purchased by her. In the absence of identification, a valid sale deed in her favour does not entitle her to any relief.... Band B/1 But that is a matter which concerns the other co-sharers of the suit plot. The Plaintiff would have succeeded had she been able to establish the identity of the land purchased by her. In the absence of identification, a valid sale deed in her favour does not entitle her to any relief.... Accordingly he confirmed the decree of dismissal passed by the trial Court. This affirming decree is assailed in second appeal. 4. Under directions of the Appellate Court, a Commissioner had been taken. The Commissioner's report was placed before the learned Munsif for consideration and by order No. 68 dated 21-9-1968, the learned Munsif accepted the report. There is no dispute that the total area of plot No. 270 is 520 decimals. The total area of sales under Exts. 7, 3, Band B/1 comes to 490 decimals. The Commissioner has with reference to the descriptions in the sale deeds demarcated in Ext. III the location of the properties sold under the various deeds. The 30 decimals which are left undisposed of have also been shown. 5. Before proceeding with this aspect of the matter, I think it appropriate to deal with the question of abatement of the entire litigation. Defendant No. 5 died on 23-8-1967. After the hearing of the suit had been concluded, on 23-1-1969, Defendants' counsel filed a memorandum intimating this fact of death. As would appear from order No. 79 dated 13-3-1969, the learned Munsif has noted that the Plaintiff took the stand that Defendant No. 5 was a proforma Defendant and no substitution was necessary. As it appears, on application for bringing the legal representatives of Defendant No. 5 on record had also been filed. While disposing of this matter, the learned Munsif tried to find out the effect of a abatement as against Defendant No. 5 in the suit and came to hold that the vendors were unnecessary parties as they had transferred their title and the matter could be adjudicated and the decree could well be enforced without concerning in the least the right, title and interest of the transferrers. In that view of the matter, the learned Munsif was of the view that it was not necessary to pass on order for substitution. He accordingly rejected the application, but came to hold that the suit as a whole would not abate. On 5-4-1969, the suit was dismissed. In that view of the matter, the learned Munsif was of the view that it was not necessary to pass on order for substitution. He accordingly rejected the application, but came to hold that the suit as a whole would not abate. On 5-4-1969, the suit was dismissed. By judgment of the appellate Court in Title Appeal No. 15 of 1969 the suit was remanded and as disposed of afresh by judgment dated 4.8-1971. On this occasion under Issue No~ 8, the same learned Munsif came to hold that non-substitution in place of Defendant No. 5 affected the maintainability of the entire suit and, therefore, the entire suit may not be taken to have abated. He also noticed that the other vendee Urmila had not been impleaded though she was a necessary party. The learned Appellate Judge considered the effect of non substitution in place of Defendant No. 5 in paragraph 13 of his judgment and observed: ...it is not necessary to enter into the question as to whether the suit has abated as a whole for not impleading the heirs of the Defendant No. 5 and whether the suit is bad for non-joinder of parties. Suffice it to say that the Defendant No. 5 having parted with his interest over the suit plot, his heirs are not necessary parties to the suit. For a determination of this suit also, the heirs of the wife of Batakrushna Parida are also not necessary parties. In my view the Courts below have fallen into confusion. The Plaintiff had made on application for substitution. That application was rejected by advancing reasons that substitution was not necessary. A finding was recorded at that point of time that the maintainability of the suit was not affected by non-substitution. Later on, the same learned Munsif came to hold that Defendant No. 5 and after him his heirs were necessary parties and non substitution and consequent abatement affected the entire litigation. The learned Appellate Judge refused to examine the point by simply saying that the heirs of Defendant No. 5 were not necessary parties. In the nature of the litigation, the Defendant No. 5 and after him his heirs are bound to be and continue on the record. The application for substitution was wrongly rejected. The learned Appellate Judge refused to examine the point by simply saying that the heirs of Defendant No. 5 were not necessary parties. In the nature of the litigation, the Defendant No. 5 and after him his heirs are bound to be and continue on the record. The application for substitution was wrongly rejected. It is true that the order of rejection was not challenged by the Plaintiff but I cannot lose sight of the fact that the entire thing was on error of the Court and having on one occasion held that it did not affect the suit and, therefore, substitution was not necessary, it is grossly unjust to turn round and ten the Plaintiff at a later stage that non substitution non suited her. One cannot lose sight of the fact that it is the duty of the Court to regulate the proceedings in a lis before it keeping the procedure prescribed by law in view. But the paramount consideration is to meet out justice to the parties before it. "Procedure" as was pointed out by the Supreme Court in the case of The State of Gujarat Vs. Ramprakash P. Puri and Others is the hand maid and not a mistress of law, intended to sub-serve and facilitate the course of justice; and not to govern or obstruct it. I do not think, it would be appropriate to find against the Plaintiff on this score for what can essentially be called a mistake of the Court. Yet, on the admitted position that Defendant No. 5 died leaving behind legal representatives, the suit cannot be determined without giving them a chance of hearing I would, therefore, direct that the petition for substitution which had been filed in the trial Court and was dismissed on 13th of March, 1969, shall stand allowed and the legal representatives shall be brought on record. As they have not been given on opportunity of being heard, on opportunity of hearing in accordance with law must be extended to them. This will obviously require a remand of the lis to the trial. 6. From the very beginning, it had been brought to the notice of the trial Court that one Urmila Parida was a purchaser of 250 decimals out of plot No. 272. The certified copy of the sale deed in her favour is Ext. 7. This will obviously require a remand of the lis to the trial. 6. From the very beginning, it had been brought to the notice of the trial Court that one Urmila Parida was a purchaser of 250 decimals out of plot No. 272. The certified copy of the sale deed in her favour is Ext. 7. Out of the four transfers relating to plot No. 272, hers is the first one in point of time. The learned Trial Judge should not have remained a mute observer and should have required the Plaintiff to bring Urmila on record. The Court has, as I pointed out some years back while disposing of a second appeal, a duty to assist the litigating parties in a fair way to have the lis before it duly constituted and cannot be silent spectator, unconcerned with the development of the litigation before it. In pointing out a defect to a counsel, the Court is not partisan. It only discharges a duty so solemnly confided in him and the step taken by the Court is only in did of dispensation of justice. It is not appropriate that a Court lies by and keeps quiet when it finds a remediable defect in the proceeding. On the other hand, it is its duty to bring the defect to the notice of counsel appearing in the matter so that the defect may be rectified in time. This is more so when a death has occurred and substitution is necessary or a necessary part is being left out and should be brought on record. Obviously the duty of the Court starts only when knowledge of the fact requiring action is gathered and not otherwise. I may not be misunderstood to be saying that the Court has duty to investigate and keep on gathering to whether if any party in the litigation is added or a necessary party has been left out. But when the defect is known to the Court, the Court must take steps to see that the defect is rectified. Urmila should have been brought on record at the trial stage. Plaintiff's suit is still in time because the purchase is on 7-1-1963 and 12 years from that date have not passed The Plaintiff is, therefore, directed to apply to the learned Trial Judge when the records are received in that Court to bring Urmila Parida on record. Urmila should have been brought on record at the trial stage. Plaintiff's suit is still in time because the purchase is on 7-1-1963 and 12 years from that date have not passed The Plaintiff is, therefore, directed to apply to the learned Trial Judge when the records are received in that Court to bring Urmila Parida on record. In paragraph 13 of the appellate Court's judgment, which I have extracted above, I find that he has referred to heirs of Urmila. In case Urmila is dead, certainly the heirs are to be brought on record. 7. Defendants 1 and 2 are purchasers of 80 decimals each from Defendant No. 5 alone. Urmila is a purchaser of 250 decimals from Defendants 3 and 4. Plaintiff purchased 80 decimals from Defendants 3, 4 and 5. As I have already stated, these four sales purport to convey title to strangers in respect of 490 decimals. The Record-of-Rights shows one Arjuna Garabadu to be a. co-sharer. It is not known as to what has happened to Arjuna's interest in the property. It is also not known as to how and under what circumstances, one or two or three co-sharers have been alienating properties out of this plot, wherein four persons are recorded as co-sharers. The learned Appellate Judge has also noticed this position in paragraph 12 of his judgment. Now that the suit is going on remand to the trial Court, it is appropriate that the Plaintiff brings in Arjuna Garabadu and in case of his death, the legal representatives, on record, so that the suit is in a comprehensive frame. 8. The genuineness of or passing of consideration under Ext. 3 has not been disputed by Defendants 3, 4 and 5. The consideration money has been paid before the Sub-Registrar as the endorsement by the registering authority on the backside of the sale deed shows. It would, therefore, follow that Ext. 3 is a genuine sale deed and full consideration there under had passed on to the vendors. The document purports to transfer of 80 decimals of land out of plot No. 272. There has been some mistaken description as alleged by the Plaintiff. The Commissioner did not find the property conveyed under the sale deed to be of any other plot. The vendors have also not come forward to clearly say as to what they had sold to the Plaintiff. There has been some mistaken description as alleged by the Plaintiff. The Commissioner did not find the property conveyed under the sale deed to be of any other plot. The vendors have also not come forward to clearly say as to what they had sold to the Plaintiff. Their attitude in the litigation is very reprehensible because though as vendors they owed a duty to stand by the vendee, they have rest content by saying that the property purchased by the Plaintiff is not what she has sued for. The learned Appellate Judge felt impressed with the counsel's contention that the Plaintiff having purchased some land for good money, it is not appropriate that she should be thrown to the winds. The learned Appellate Judge Was of the view that a suit for partition would have been more appropriate. I agree with him. In order to do complete justice to the parties, it is appropriate that the suit should be converted into one for partition. The Plaintiff is given liberty to ask for amendments in the trial Court for conversion of this suit into a suit for partition and allotment of her 80 decimals out of plot No. 272, so that the mistake in the description may not indeed affect her. From the record, I find that the entire plot has still been lying vacant. But in case there have been any constructions in the meantime, the learned Trial Judge certainly will keep equities in view while effecting partition. In case it is not possible to allow the Plaintiff her 80 decimals of land, she certainly is entitled to refund of the consideration money. 9. As I find the valuation of the property under plot No. 272 which would be put into the hotch-pot must be more than Rs. 5,000/- because the sale deeds of Defendants 1 and 2 alone were for Rs. 4,000/-. It is in the interests of justice that the suit stands transferred to the learned Subordinate Judge at Bhubaneswar for trial. Both parties should be given full opportunities to amend the pleadings and bring in fresh evidence both documentary and oral on all aspects of the controversy. The suit has had many remands and it is already la-years old. The learned Subordinate Judge, I hope, would keep in view this aspect of the matter and expedite its disposal. Both parties should be given full opportunities to amend the pleadings and bring in fresh evidence both documentary and oral on all aspects of the controversy. The suit has had many remands and it is already la-years old. The learned Subordinate Judge, I hope, would keep in view this aspect of the matter and expedite its disposal. All parties must have purchased the property being anxious to raise constructions and on account of the pendency of the litigation possibly constructions have not been raised yet. It is in the interest of the parties that the litigation comes to a rest at on early date. 10. The judgments of the Courts below are accordingly set aside and the suit is remanded for fresh disposal to the trial Court. As I have directed, the suit shall now stand transferred to the learned Subordinate Judge, Bhubaneswar, for trial. I direct that both parties shall bear their own costs throughout up to this stage and further costs shall be in the discretion of the trial Court.