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2003 DIGILAW 716 (ORI)

NARAYAN JOSHI v. PRAMILA PANDA

2003-12-17

P.K.TRIPATHY

body2003
JUDGMENT : P. K. Tripathy, J. - Appellants are the defendants in Title Suit No. 48 of 1994 of the Court of Civil Judge (Sr. Division), Boudh and the Respondent was Plaintiff No. 2 in that suit. Plaintiff No. 1 died during the pendency of the suit and there was no other legal representative except plaintiff No, 2, so, no other person was substituted on her death. The suit property measures an area of Ac. 1. 84 decimals in seven plots under Khata No. 25 of village Bandhapathar in the district of Boudh. The admitted case of both the parties is that Late Raghunath Joshi, husband of deceased-plaintiff No. 1 and father of plaintiff No. 2 was the owner of the property by the date of his death and after his death his widow and daughter succeeded to that property. Defendants are the agnetic nephews of Raghunath Joshi. 2. The case of the plaintiffs is that after death of Raghunath Joshi and taking into consideration the widowhood, illiteracy and paradanashin conditions of plaintiff No. 1 and the plaintiff No. 2 being staying in another village after her marriage, the defendants managed the property on behalf of the plaintiffs but by practising fraud obtained from plaintiff No. 1 a registered deed of sale with respect to the entire suit property vide Registered document No. 1845 of 1992. Accordingly they filed the suit claiming title with the prayer for recovery of possession with the declaration that no right, title and interest has passed on to defendants on the basis of that registered sale deed. Defendants filed their written statement pleading about a valid transaction of sale and having acquired title and possession on that basis. 3. On the basis of such pleadings, trial Court framed following issues : 1. Whether the plaintiffs have got right, title and interest over the suit land ? 2. Whether plaintiff No. 1 executed a sale deed by selling the suit land in favour of defendants in Document No. 1845/92 of D.S.R., Boudh ? 3. Whether the sale is valid ? 4. To what relief, if any, the plaintiffs are entitled for ? 5. Is the suit maintainable in its present form ? 6. Is there any cause of action for the suit ? 4. On analysis of the oral and documentary evidence adduced by the parties, learned Civil Judge (Sr. 3. Whether the sale is valid ? 4. To what relief, if any, the plaintiffs are entitled for ? 5. Is the suit maintainable in its present form ? 6. Is there any cause of action for the suit ? 4. On analysis of the oral and documentary evidence adduced by the parties, learned Civil Judge (Sr. Division), Boudh dismissed the suit of the plaintiffs as per the judgment delivered by him on 4.7.1997. Trial Court recorded the finding that after death of Raghunath Joshi both the plaintiffs succeeded to the suit property but plaintiff No. 1 as the sole recorded tenant executed the sale deed in the year 1992 knowing the contents thereof consciously and therefore she is bound by that sale transaction and defendants have acquired right, title, interest and possession over the case land. Accordingly the Civil Judge dismissed the suit. Plaintiff No. 2 challenged that decree and in Title Appeal No. 15 of 2000 (Title Appeal No. 31/ 1997 of the District Court, Phulbani), learned Addl. District Judge, Boudh after hearing the parties reversed that decree to the extent of half interest of plaintiff No. 2, i.e., the present respondent. 5. Learned Addl. District Judge perused the evidence on record and on consideration of the contentions raised by the parties, granted decree in favour of plaintiff No. 2 on the ground that she is not bound by the sale transaction entered into by her mother and therefore her interest over the alienated property to the extent of half share remains with her. Accordingly, he granted the decree by pronouncing that: "The suit is decreed in part on contest against the defendants and the plaintiff No. 2 and the defendants are the joint owners of the suit schedule property." 6. On 2.8.2001 the Second Appeal was admitted on two substantial questions, vide ground Nos. A and B (though wrongly noted as ground Nos. (a) and (d)). Those two grounds are as follows : "(A)*** *** *** *** *** *** Whether the finding of the learned Lower Appellate Court, that the sale deed vide Document No. 1845 of 1992 is not binding against the Plaintiff No. 2, is sustainable in the eye of law ? (B) Whether the impugned judgment of the learned Lower Appellate Court is perverse for non-consideration of the materials on record rather contrary to the materials on record ?" 7. (B) Whether the impugned judgment of the learned Lower Appellate Court is perverse for non-consideration of the materials on record rather contrary to the materials on record ?" 7. In course of argument, appellants have not been able to point out from record as to which of the findings of learned Addl. District Judge suffers from perversity. On perusal of the evidence on record and the findings recorded by the lower Appellate Court, this Court does not find existence of perversity. Therefore, attack to the impugned judgment on the ground of perversity does not bear any merit. 8. The undisputed fact involved in the suit indicates that after death of Raghunath Joshi both the plaintiffs succeeded to the property having half share each being Class-1 heir. Provision of law in Section 8 read with the Schedule in Hindu Succession Act, 1956 makes that situation very clear. It is no body's case that after acquiring her half interest over the suit property plaintiff No. 2 either relinquished or abandoned her share in favour of plaintiff No. 1 or she had given consent and authority to plaintiff No. 1 to alienate her interest over the suit property. Learned Civil Judge without being alive to such legal and factual possession, dismissed plaintiffs' suit on a wrong impression and incorrect conclusion that plaintiff No. 1 being the recorded tenant had absolute authority to alienate the entire property. Such conclusion derived by him is in conflict with the unchallenged finding recorded by him on Issue No. 1 that on the death of Raghunath Joshi both the plaintiffs succeeded to the property. In this case, on the aforesaid facts and circumstances, the Record of Rights prepared in the name of plaintiff No. 1 did not extinguish the right, title and interest of plaintiff No. 2 and learned Civil Judge committed the mistake by not remembering that aspect. 9. Learned Addl. District Judge therefore adopted the correct approach to the facts in issue vis-a-vis the provision of law to record his findings that notwithstanding execution of the sale deed by plaintiff No. 1 in favour of the defendants, plaintiff No. 2 still retains her right to claim interest over the suit property. 10. 9. Learned Addl. District Judge therefore adopted the correct approach to the facts in issue vis-a-vis the provision of law to record his findings that notwithstanding execution of the sale deed by plaintiff No. 1 in favour of the defendants, plaintiff No. 2 still retains her right to claim interest over the suit property. 10. In view of the aforesaid analysis of the facts and law and on due perusal of the pleadings and evidence adduced by the parties besides the judgments delivered by the Courts below, this Court does not find illegality or incorrectness in the findings recorded by learned Addl. District Judge in recognising and affirming half interest of the plaintiff No. 2 over the suit property. 11. On a consequence of the above affirmation to the impugned judgment of the lower Appellate Court, this Court finds that the decree followed from that is regarding joint ownership of the plaintiff No. 1 to the extent of half interest along with the defendants having interest over the rest half of the suit property notwithstanding the prayer of the plaintiffs for declaration of title and recovery of possession. When plaintiff No. 2 is having title to the half of the suit land and she has paid Court-fee for the relief of possession, it appears that the impugned decree in that respect is incomplete. 12. Provision in Section 100 read with Section 103, CPC authorises this Court to consider such aspect in the event the Courts below have failed to consider the same properly. While declaring right, title, interest of the plaintiff No. 2 over half of the suit properties and further declaring her to be joint owner of the suit property along with the defendants, that decree has to be treated as a preliminary decree so that plaintiff No. 2 on the basis of that decree can ask for determination of that half share and for delivery of possession thereof. The defendants also can make such a prayer for the purpose of final decree. Under such circumstance, while affirming to the impugned decree passed by the Addl. The defendants also can make such a prayer for the purpose of final decree. Under such circumstance, while affirming to the impugned decree passed by the Addl. District Judge, this Court directs that to be treated as preliminary decree with the liberty to either of the parties to apply for final decree for the purpose of carving out the half share of the plaintiff No. 2 in furtherance of the relief of recovery of possession unless both the parties mutually determine that division with due application to the Court to consider the same and to pass the final decree. Parties may undertake such an exercise within a period of two months from the date of this decree. 13. In the result, while dismissing the Second Appeal and confirming the judgment and decree passed by the Addl. District Judge, Boudh in Title Appeal No. 15 of 2000, this Court directs that the impugned decree be treated as preliminary decree with the liberty to the parties to apply to Court for the final decree and relating to the relief of recovery of possession in the manner indicated above. Under the given facts and circumstances, the defendants are to bear the cost of the litigations all throughout. Pleaders' fee be assessed at contested scale.