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2009 DIGILAW 53 (ORI)

MURALI RANA v. JASODA RANA

2009-01-21

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - The Judgment and decree dated 14.3.1989 passed in Title Appeal No. 8 of 1988 by the then Subordinate Judge, Boudh confirming the Judgment and decree dated 22.2.1988 passed by the then Learned Munsif, Boudh in Title Suit No. 2 of 1987 is assailed in this Second Appeal by Defendant No. 1. 2. The facts of the case had been elaborately described in the Judgments passed by both the Courts. Therefore, this Court refrains from reiterating the same, but then refers to only those facts, which are necessary for proper appreciation of the inter se disputes. The Plaintiff is the daughter of one Tirtha. After the death of Tirtha, her mother, Laxmi re-married one Arta, cousin brother of Tirtha. Out of the said wedlock Defendants 1 and 2 were born. According to the Plaintiff, the suit properties exclusively belonged to Tirtha, her father and had been recorded in the name of the Plaintiff in Mutation Case No. 322 of 1979. It is further averred that the Defendants also filed a Mutation case, but the order passed in their favour, being objected was set aside in appeal. Thus, according to the Plaintiff she was the exclusive owner having inherited the suit properties from her father Tirtha. In the year 1987 the Defendants forcibly tried to trespass upon the suit land. Consequently the Plaintiff filed Title Suit No. 23 of 1987 in the Court of the then Munsif, Boudh inter alia praying for permanent injunction and in the alternative to recover possession. The Defendants after receiving notice appeared and filed their written statement. Defendant No. 1 Murali took the stand that he is the son of Tirtha and entitled to a share out of the suit properties in consonance with a deed of relinquishment (Faisala Patra). 3. On the basis of the pleading the Trial Court framed eight issues. The Plaintiff in order to substantiate her case got examined three witnesses and exhibited four documents. The Defendants on the other hand got examined three witnesses and exhibited one document. 4. The Trial Court after discussing the evidence in extenso came to the finding that Defendant No. 1 was the son of Arta through Laxmi and as such his is not entitled to the properties, which belonged to Tirtha. The Defendants on the other hand got examined three witnesses and exhibited one document. 4. The Trial Court after discussing the evidence in extenso came to the finding that Defendant No. 1 was the son of Arta through Laxmi and as such his is not entitled to the properties, which belonged to Tirtha. It further held that Ext.A, the so called relinquishment deed is not admissible in law and that the Xerox copy of the voter list filed by Defendant No. 1 cannot be accepted. It further came to the occlusion that the Defendant had totally failed to produce any document in support of his case that he is the son of Tirtha. On the basis of such finding the Trial Court decreed the suit. The Appellant assailed the decree passed by the Trial Court in Title Appeal No. 8 of 1988 before the then Subordinate Judge, Boudh. The Appellate Court after analysing the evidence confirmed the finding that the Plaintiff was the daughter of Tirtha and after the death of Tirtha, her mother Laxmi married Arta and through her Defendant No. 1 was born. It was further held that Laxmi re-married Arta before the Hindu Succession Act, 1956 came into force, thus, she cannot take the properties of Tirtha with her. The Plaintiff being the only surviving reversionary of deceased Tirtha succeeded to his entire properties. Relying upon the orders passed in Mutation Case, the Appellate Court also confirmed the finding that the properties exclusively belonged to Arta and after his death the Plaintiff, daughter of Arta, being the only legal heir became the absolute owner thereof. The unregistered relinquishment deed (Ext.A) was held to be not genuine. On the basis of such discussions, the Appellate Court dismissed the appeal and confirmed the Judgment and decree passed by the Trial Court. The said decree is assailed before this Court in this Second Appeal on the ground that the suit was not maintainable and was liable to be dismissed for non-joinder of necessary parties. 5. According to Mr. Ghose, the suit properties being joint family properties, Jasoda, daughter of Arta as well as other co-sharers who having not been impleaded as parties, the suit was liable to be dismissed on the ground of non-joinder of necessary parties. 6. 5. According to Mr. Ghose, the suit properties being joint family properties, Jasoda, daughter of Arta as well as other co-sharers who having not been impleaded as parties, the suit was liable to be dismissed on the ground of non-joinder of necessary parties. 6. Learned Counsel for the Respondents on the other hand submits that the properties were never a part and parcel of the joint family properties. It was the self acquired property of Tirtha and was recorded in his name. After his death the properties has been recorded in favour of the Plaintiff in the Mutation case. On the other hand the Mutation case filed by the Defendants was dismissed and the said order has become final. It is further submitted that as the properties belonged exclusively to Tirtha, other members of the joint family were not necessary parties. 7. After hearing Learned Counsel for both parties, this Court found some force in the submissions made. The mutation order (Ext.3) and the certified copy of the Pattas (Exts. 1 and 2) clearly support the case of the Plaintiff. The records reveal that the properties stood recorded in the name of the Plaintiff. According to the Plaintiff, the Defendants disturbed in her possession and tried to dispossess her. Hence, she filed a suit for permanent injunction and alternatively for recovery of possession. The concurrent finding of facts that the properties belonged to Tirtha and thereafter the Plaintiff succeeded the same being based on cogent evidence needs no interference. That apart law is well settled that the findings of facts should not ordinarily be interfered with in a Second Appeal unless the High Court is satisfied that there was gross error apparent on the face of record with regard to appreciation of the evidence or settled position of law. That apart in course of hearing it is submitted that the Judgment and decree passed in the suit which was confirmed in appeal was executed in E.P. No. 9 of 1988 and possession of the lands were recovered by the Plaintiff. In the meanwhile 21 years have passed. On perusal of the Judgments passed by the Courts below, this Court is satisfied that they have discussed the evidence in extenso and the conclusions arrived at are proper and in consonance with law and need no interference. 8. In the meanwhile 21 years have passed. On perusal of the Judgments passed by the Courts below, this Court is satisfied that they have discussed the evidence in extenso and the conclusions arrived at are proper and in consonance with law and need no interference. 8. In view of the aforesaid discussion, this Court is not inclined to interfere with the confirming Judgment and decree. Accordingly, the Second Appeal is dismissed. Parties to bear their own cost. Final Result : Dismissed