Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 877 (ORI)

BOROJ PRADHAN v. RADHIKA PRADHAN

2008-09-24

A.S.NAIDU

body2008
JUDGMENT : A.S. Naidu, J. - Defendant No. 3 in T.S. No. 5 of 1983 of the court of then then Addl.Munsif, G.Udayagiri who was the Appellant in T.A. No. 13 of 1985 of the court of the District Judge, Boudh-Khondamals, Phulbani has filed this Second appeal assailing the confirming judgments and decrees. 2. The suit was one for recovery of possession against the Defendants. This being a Second Appeal this Court refrains from discussing the facts in detail, but then refers to only those facts which would be necessary for effectual adjudication. According to the Plaintiff: the property in dispute was the exclusive property of her father Gata Pradhan. He was in possession thereof all through and after his death the property was in possession of the Plaintiff. In the year 1976 the Defendants forcibly dispossessed the Plaintiff from the suit property and consequently the suit was filed in the year 1983. 3. All the Defendants filed a joint written statement denying the averments made in the plaint. According to them, one Nilambar Dehury was the owner of the suit property and Gata and Brundaban being two brothers had purchased the same from Nilambar and possessed the same jointly. They further contended that after death of Gata, Brundaban being the eldest male member in the family, for legal necessity had sold away the suit property in the year 1969 to one Radhapa Pradhan by a registered sale deed. After death of Radhapa his son Braja, Defendant No. 3. had mortgaged the suit property to Banamali, Defendant No. 1 for a consideration of Rs. 2,000.00 by a registered deed. Defendant No. 3 thus remained in possession of the suit property, but taking advantage of recordings made in the Settlement records, the Plaintiff had filed the suit advancing a false claim. 4. On the basis of the pleadings of the parties, the trial court framed as many as nineteen issues for decision in the suit. To substantiate their case, the Plaintiff got three witnesses examined and exhibited three documents. On the other hand, the Defendants got four witnesses examined and exhibited four documents. After discussing the evidence, both oral and documentary in extenso, the trial court answered issue Nos. I, 6 and 7 holding that the suit property exclusively belonged to Gata. Relying on Ext. To substantiate their case, the Plaintiff got three witnesses examined and exhibited three documents. On the other hand, the Defendants got four witnesses examined and exhibited four documents. After discussing the evidence, both oral and documentary in extenso, the trial court answered issue Nos. I, 6 and 7 holding that the suit property exclusively belonged to Gata. Relying on Ext. 1, the old Settlement ROR, the trial court held that there was a partition between Gata and Brundaban and they were possessing their respective portions of the ancestral property separately. Thus Brundaban could not claim to be the Karta of the family. Relying upon Ext.2, the ROR wherein the suit property has been exclusively recorded in the name of the Plaintiff, the trial court under issue No. l4 held that the Plaintiff was the exclusive owner in possession thereof being the daughter of Gata. The trial court further held that Brundaban having No. saleable interest in the suit property, the mortgage deed Ext.A conferred No. title on Defendant No. 3 It further held that only in the year 1976 the Defendants had forcibly dispossessed the Plaintiff from the suit property and the suit having been filed in the year 1986, the same was within time prescribed by Limitation Act. Being aggrieved by the said judgment and decree of the trial court, Defendant No. 3 tiled aforesaid Title Appeal No. l3 of 1985. 5. The appellate court scrutinized the evidence, both oral and documentary, threadbare and came to the conclusion that the suit property was separate and self-acquired property of Gata, and Brundaban had No. share in the same. Consequently the sale deed executed by Brundaban and the subsequent mortgage deed executed in favour of Defendant No. 3 were invalid. With regard to the question of possession, the appellate court held that the Plaintiff was dispossessed only in the year 1976. It further held that the question of adverse possession was never pleaded in the written statement nor was any convincing evidence adduced on that score. On the basis of such findings, the appellate confirmed the judgment and decree of the trial court and dismissed the appeal. The said concurrent judgment and decree of the appellate court are assailed in this Second Appeal only by Defendant No. 3. 6. On the basis of such findings, the appellate confirmed the judgment and decree of the trial court and dismissed the appeal. The said concurrent judgment and decree of the appellate court are assailed in this Second Appeal only by Defendant No. 3. 6. While admitting the Second Appeal this Court framed the following substantial question of law:- If the lower appellate court committed error of record in holding that adverse possession was not pleaded by the Defendants when specifically in para-8 it was pleaded that the suit was barred by limitation and the Plaintiff had brought the suit for recovery of possession beyond the period of twelve years ? 7. Mr. Misra, learned Counsel for the Appellant, strenuously submitted that both the courts below lost sight of the fact that the suit property was the joint family property of Gata and Brundaban and after death of Gatra, Brundaban being the Karta of the family had alienated the said property for legal necessity. By virtue of the registered mortgaged deed executed in favour of Defendant No. 3, a right had accrued to him and the conclusion of the courts below were apparent errors. Even otherwise, according to Mr. Misra, the Defendants had acquired title to the suit property by adverse possession and the finding of the court below that in absence of any pleading the question of adverse possession was not pleaded was erroneous. 8. Mr. Sahu, learned Counsel appearing for the Respondent, on the other hand submitted that the judgments and decrees of the courts below were well justified and the concurrent findings of fact recorded by the courts below cannot be interfered with in Second Appeal. 9. This Court heard learned Counsel for the parties at length and perused the evidence, both oral and documentary. Ext.2 is a certified copy of an old Settlement ROR. The same clearly indicates that there was a partition inter se between Gata and Brundaban. Thus there was severance of joint family status. The claim of Brundaban that he was the Karta of the family had been rightly rejected by the courts below. D.W.2 was examined on behalf of the Defendants who in his cross-examination fairly admitted as follows:- I sold the land to Gata Pradhan and the documents was scribed in the name of Gata Pradhan. The claim of Brundaban that he was the Karta of the family had been rightly rejected by the courts below. D.W.2 was examined on behalf of the Defendants who in his cross-examination fairly admitted as follows:- I sold the land to Gata Pradhan and the documents was scribed in the name of Gata Pradhan. Thus the claim of the Defendants that the suit property had been jointly purchased by Gata and Brundaban could not have been accepted. 10. Ext.2 is an ROR of Current Settlement. The said ROR reveals that the suit property had been settled in favour of the Plaintiff who claimed to have succeeded to the property from her father Gata. No. document was produced by the Defendants to establish their plea of joint purchase of the suit property nor to establish that Brundaban ever purchased the said property. Brundaban having No. title to the suit property, there was No. flow of title to Radhapa or Defendant No. 3. That apart, both the courts below clearly came to the conclusion that the Plaintiff was dispossessed from the suit property only in the year 1976. Thus This finding of fact cannot be disturbed. There being No. material to show that either Brundaban or any of the Defendants was in possession of the suit property prior to 1976, the courts below rightly came to the conclusion that the question of adverse possession did not arise. The suit having been filed in the year 1983 was well within the period of limitation and rightly there was No. pleading to that effect in the written statement. 11. After scrutinizing the evidence, going through the judgments and decrees of the courts below and hearing the learned Counsel for the parties, this Court finds that the concurrent findings of fact with regard to title and possession need No. interference in the Second Appeal and this Court dismisses the Second Appeal accordingly. Final Result : Dismissed