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2002 DIGILAW 564 (ORI)

BLDULATA ROUT v. ANIMA RATH

2002-08-29

L.MOHAPATRA

body2002
JUDGMENT : L. Mohapatra, J. - Plaintiffs are the Appellants before this Court against a confirming judgment. The suit was filed for declaration of right, title, interest and possession over the 'B' Schedule property and for permanent injunction restraining the defendants-Respondents from entering into the 'B' Schedule property as well as for declaration that the registered sale deeds dated 16.8.1952 and 8.12.1958 relating to the 'B' Schedule property are illegal and that defendants 4 to 9 have not acquired any right, title and possession under the said two deeds. 2. The case of the Plaintiffs is that one Laxman Dalel was the common ancestor who died leaving behind five sons namely, Gopal, Fagu, Raghu. Gobinda and Ananda. Out of the five sons. Ananda and Raghu died issueless and Gopal died in the year 1925 leaving behind his only daughter who also died in the year 1940 without leaving behind any heir. Gobinda died leaving his only son Radhu and Radhu also died issueless. Fagu died leaving behind his only son Kanduri who was the original Plaintiff and said Kanduri was the sole successor to the entire 'B' Schedule property which was ancestral property of the Plaintiffs-Appellants. After death of Kanduri during pendency of the suit, the present Appellants have been substituted in his place, in the year 1930, in the record of rights of 'B' Schedule property stood recorded in the name of four brothers and daughter of Gopal. The defendants taking advantage of long absence of the father of the present Appellants from village as he was serving in Calcutta obtained the sale deeds in question with respect to 'B' Schedule property in their names and managed to record in names in the consolidation R.O.R. during consolidation operation. Objection filed by the father of the present Appellants before the Consolidation Officer was rejected. It is further alleged in the plaint that under the fraudulent sale deed dated 8.12.1958 the defendants claimed to be the owner of 'B' Schedule property and thereafter on different dates under three registered sale deeds defendant No. 2 sold the properties to defendants 4. 5 and 6 and defendant No. 4 who had purchased a part of the suit property from defendant No. 2 again sold to defendant No. 7 who in turn again sold the same to defendants 8 and 9 in 1966. 5 and 6 and defendant No. 4 who had purchased a part of the suit property from defendant No. 2 again sold to defendant No. 7 who in turn again sold the same to defendants 8 and 9 in 1966. Coming to know about the fraudulent transactions after the father of the Appellants came back from Calcutta on retirement, he approached the Executive Magistrate in a proceeding u/s 145, Code of Criminal Procedure and a receiver was appointed in respect of the suit land. On the above allegations, the suit was filed for the relief as stated above. 3. The defendants filed their written statement challenging the maintainability of the suit on the ground that the Plaintiffs having claimed the properties to be ancestral all the co-sharers are necessary parties to the suit and they having not been made parties, the suit is liable to be dismissed for non-joinder of parties. According to the, defendants, in an auction sale one Janardan the father of defendant No. 2 had purchased the suit land and possessed the same and the right, title, interest of the predecessors of the Appellants, if any, stood lost and the father of the defendant No. 2 continued to be in possession of the land having purchased the same in an auction. The further case of the defendants is that the Lot No. 2 of the suit 'B' Schedule property vested in the State of Orissa under the provisions of the Orissa Estates Abolition Act and the Civil Court had no jurisdiction to deal with the said part of the properties. Other plaint allegations were denied except the averments made with regard to sales made by the defendants among themselves. 4. On the above pleadings of the parties, the trial Court framed nine issues and dismissed the suit on the following findings: (i) Even though the subject matter of the dispute was also the subject matter of the consolidation proceeding, since the Consolidation Officer had no jurisdiction to determine the validity of the sale deed which is alleged to be a fraudulent one, the suit is maintainable, and the principle of res judicata shall not be applicable. (ii) The Plaintiffs having pleaded that the properties are ancestral properties and having not pleaded about any prior partition among the co-sharers, they are necessary parties to the suit and accordingly the suit was bad for non-joinder of necessary parties. (ii) The Plaintiffs having pleaded that the properties are ancestral properties and having not pleaded about any prior partition among the co-sharers, they are necessary parties to the suit and accordingly the suit was bad for non-joinder of necessary parties. (iii) The father of defendant No. 2 while executing Exts. A and B i.e. registered sale deeds dated 12.5.1980 and 25.3.1980 had valid title over the 8 Schedule property which had been sold to defendants 4, 5, and 6 on receipt of consideration. (iv) The Plaintiffs have failed to prove their right, title and interest or possession over the suit schedule properties. The appeal filed by the Plaintiffs was also dismissed and all the findings of the trial Court were confirmed. 5. At the time of admission of the appeal, this Court formulated the following substantial questions of law as enumerated in ground Nos. 2, 3, 5, 6 and 9 of the memorandum of appeal and the same are quoted below: (2) Whether the findings of the Courts below that the suit is bad for non-joinder of necessary parties is justified and whether it could hardly be sufficient to non suit the present Appellants in absence of pleadings of defendants as to the existence of their rights pertaining to suit properties and in absence of findings of the Courts below in specific findings as to how they are necessary parties and whether the relevant issue as to suit is bad for non-joinder of necessary parties was answered against the Appellants is vitiated in law as entire evidence on records has not been discussed in arriving at the findings. Hence the impugned judgments are illegal and liable to be set aside. (3) Whether the forums below have acted illegally in not deciding the question of practised fraud on registration by defendant No. 2 namely Narendra Nath Rath in executing the alleged regd. sale deeds dated 12.2.66 and 12.5.80 respectively. (5) Whether in view of the admitted position that the 'B' Schedule property is the ancestral property, the same was recorded in the names of Fagu, Ananda. Gobinda, Raghu and Sushila daughter of Gopal Dalei in record of rights published in 1930. the Original Plaintiff being the son of Fagu if the Plaintiff has right, title, interest in 8' Schedule property and if dismissal of the suit filed by the son of Fagu is justified. Gobinda, Raghu and Sushila daughter of Gopal Dalei in record of rights published in 1930. the Original Plaintiff being the son of Fagu if the Plaintiff has right, title, interest in 8' Schedule property and if dismissal of the suit filed by the son of Fagu is justified. (6) Whether in view of the admitted position that the defendants nave not produced any document in proof of auction sale of the suit property are the forums below have erred in law in dismissing the suit. (9) Whether in view of the evidence on record to the effect that properties of outsiders have been included in the sale deeds dated 12.5.90 and 23.3.80, Narendra was not the owner of property under Khata No. 80 in village Nankar. So also Narendra was not the owner of property appertaining to Plot No. 515 under Khata No. 30 of Village Chandapur. which are within the jurisdiction of Jagatsinghpur Sub-Registrar, the suit properties are under the jurisdiction of Manijanga Sub-Registrar and in view of such state of affairs: are the sale deeds invalid in law and if there is fraud in registration and if the defendants have acquired title to the properties. 6. In reference to the substantial questions of law formulated by this Court at the time of the admission, the learned Counsel for the Appellants submitted that since ail the properties originally stood recorded in the names of the ancestors of the Plaintiffs, there was no reason for the Courts below to come to conclusion that the Plaintiff who was the successor had no right, title and interest over the same in this connection, reference may be made to the discussion made by the trial Court while answering issue Nos. 3, 4, 5, 6 and 7. On detailed discussion of the oral and documentary evidence available on record, the trial Court has come to a categorical finding that the entire 'B' Schedule property belonged to defendant No. 2 and he had valid title at the time of executing the relevant sale deeds on 12.5.80 and 25.3.80 in favour of defendants 4, 5 and 6. This being a finding of fact confirmed in appeal. there is hardly any scope for this Court to interfere with the same The only other point raised by the learned Counsel for the Appellants is that the documents i.e. sale deeds dated 12.5.80 and 25.3.80 had been fraudulently executed. This being a finding of fact confirmed in appeal. there is hardly any scope for this Court to interfere with the same The only other point raised by the learned Counsel for the Appellants is that the documents i.e. sale deeds dated 12.5.80 and 25.3.80 had been fraudulently executed. In support of his contention, the learned Counsel cited a decision of this Court in the case of Officiating Common Manager. Bhingarpur Debottar Estate and Anr. v. Brahman Nijon. Uttar Bada and Dakshinbada and Ors. reported in 1989 (II) OLR 350. On the entire reading of the judgment. I am of the view that factually though it has no application, the principle of law decided is not in dispute. Whether fraud was practised, while executing a deed, will depend on facts of each case. So far as the present appeal is concerned, both the Courts have concurrently found that no fraud was exercised at the time of execution of the sale deeds in question and this being a concurrent finding of facts. I decline to interfere with the same. 7. No other point having been raised by the learned Counsel for the Appellants.