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2010 DIGILAW 320 (ORI)

Umakanta Jena v. Raghunath Rout

2010-05-04

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. : The substantial question for which this Regular Second Appeal has been admitted against the confirming judgment is whether the appellate Court is justified in rejecting the petition under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 with¬out dealing with the same? In course of hearing, another substantial question was raised at the Bar. Whether the burden of proof of due execution of a registered sale deed allegedly executed by an old, illiter¬ate and Paradanasini lady lies on the party who relies on it or it lies on the party, who challenges the same? 2. Contesting defendants have preferred the 2nd appeal against the judgment of the Addl. District Judge, Bhadrak in Title Appeal No.72 of 1992, wherein, the learned District Judge confirmed the judgment and decree passed in O.S. No.220/87-I of the Court of Addl. Munsif, Bhadrak. 3. The plaintiff claimed that the suit land bearing Major Settlement plot no.213 of holding No. 101, measuring an area of Ac.1.00 of village Kurubatia was the self-acquired property of defendant no.1, Rajani Dei. The plaintiff further claimed that the defendant no.1 sold the suit land to him by executing a registered sale deed on 18.2.1987 for a consideration of Rs.3,000/-. The plaintiff further pleaded that Rs.1,000/- was paid to the defendant in presence of the Sub-Registrar by the plaintiff. Rest Rs.2,000/- on ticket, five days after the date of registration of the sale deed. Plaintiff further pleaded that the defendant no.2, Umakanta Jena accompanied defendant no.1 to the Sub-Registrar Office and stood a witness to the execution of the deed along with one Srikanta Behera. The plaintiff further plead¬ed that the deed was scribed by one Umakanta Ray, as per the instruction of the defendant no.1 and after scribing the deed, the scribe read over and explained the contents of the deed to defendant no.1, who after understanding the contents of the deed, affixed her thumb impression on the deed. The plaintiff further claimed that after registration of the deed, the defendant no.1, Rajani Dei and defendant no.2 gave delivery of possession and since then, he is in possession of the suit land till now. Plaintiff further plead that defendant no.1 and 2 on 15.07.1987 obstructed him from ploughing over the suit land and disclosed that they have cancelled the deed dated12.03.1987. Plaintiff further plead that defendant no.1 and 2 on 15.07.1987 obstructed him from ploughing over the suit land and disclosed that they have cancelled the deed dated12.03.1987. The plaintiff on 17.07.1987 received a notice in respect of the suit land under Section 145 of the Criminal Procedure Code, 1973 and after verification, he came to know from his Advocate that the deed dated 18.02.1987 has been cancelled on 12.03.1987. An en¬dorsement was also made on the back side of the sale deed to that effect. The plaintiff plead that the defendant having no right, title and interest or possession over the suit land threatened, on 18.02.1987, to disposes him from the suit land for which he was compelled to file the suit for declaration of right, title, confirmation of possession and for perpetual injunction. 4. The defendants filed the written statement denying the averments made in the plaint. The defendants further plead that Rajani Dei is an old, illiterate and Paradanasini lady. She has no knowledge regarding the landed property or its connected docu¬ments. It is further pleaded that the defendant no.1 was never in need of money and she has not received any consideration amount from the plaintiff. The defendants further plead that the plaintiff being a cunning and shrewd man managed to get the sale deed executed by he defendant no.1 without reading over and explaining her the contents of the deed. The defendants further plead that defendant no.2 was staying at Cuttack and his brother was at Calcutta at the time of the execution of the deed by defendant no.1 in favour of the plaintiff and the signatures of Umakanta Jena on the sale deed was forged signatures. They further plead that the plaintiff never possessed the suit land and they are in possession of the same. The defendants further averred in the written statement that the defendant no.1 cancelled the registered sale dated 18.02.1987 on 12.03.1987 by executing a document, which was scribed by one Nityananda Palita. Defendants claim that the suit land was valued Rs.15,000/- at the time of alleged sale and the plaintiff got the sale deed executed from defendant no.1 in the guise of taking her for medical treatment. The defendants further averred that the plaintiff obtained the thumb impression of the defendant no.1 on four blank stamp papers. Defendants claim that the suit land was valued Rs.15,000/- at the time of alleged sale and the plaintiff got the sale deed executed from defendant no.1 in the guise of taking her for medical treatment. The defendants further averred that the plaintiff obtained the thumb impression of the defendant no.1 on four blank stamp papers. The defendants further plead that the plaintiff took back a sum of Rs.1,000/- which he had given to defendant no.1 in presence of the Sub-Registrar, in the verandha of Sub-Registrar’s office, and the plaintiff also obtained the ticket from defendant no.1 without paying any amount to her. Defendants plead that there is no cause of action to file the suit and the suit should be dismissed. 5. On such pleadings, the parties went into trial Court. Learned trial Court decided that the suit is maintainable and there is cause of action for the same. The trial Court further held that the deed dated 18.02.1987 was duly executed and consid¬eration money was paid. Further it was decided that the plaintiff has right, title, interest and possession over the suit property and the cancellation deed dated 12.03.1987 have no legal effect.Therefore, learned Addl. Munsif decreed the suit in favour of the plaintiff. In appeal the learned Addl. District Judge also upheld the findings recorded by the learned trial Court and dismissed the appeal. 6. While the Ist appeal was pending, an Advocate for the respondents had filed a petition for abatement under sub-section (4) of Section 4 of the Act. Such petition was filed after the case was posted for judgment. However, learned appellate Court has held that sine the appeal is bound to fail, a question for consideration of abatement of the appeal would be redundant. 7. First question which arises in this appeal is whether the suit and the appeal abate on account of notification under Section 4 of the Act. Section 51 of the Act reads as fol¬lows. “51. Bar of jurisdiction of Civil Courts:- Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Sec. 4 and Sub-sec. Section 51 of the Act reads as fol¬lows. “51. Bar of jurisdiction of Civil Courts:- Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Sec. 4 and Sub-sec. (1) of Sec.7- (1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and (2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide”. Section 4(4) of the Act deals with the effect of notifica¬tion under Section 3 of the Act. It is apt to quote the said provision. “Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending stand abated: Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard: Provided further that on the issue of a notification under sub sec. (1) of Sec.5 in respect of the said area or part there¬of- (a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated; and (b) all such suits and proceedings as are referred to in Clause (3) or Clause (4) which relate to lands situate in such area or part thereof, as the case may be, shall be proceeded with and dispose of in accordance with the law as if they had never abated; Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest, which formed the sub-matter of the said suit or proceeding before the proper consolidation authority in accord¬ance with the provisions of this Act of the rules made thereun¬der”. 8. The aforesaid provision makes it clear that the abate¬ment of the suit or appeal is not automatic. The Court before which the case is pending must make an order to that effect. It is clear from the use of the expression “an order being passed in that behalf.” 9. A similar question arises before this Court in Kailash Charan Sahoo Vs. Mahani Charan Mohanty and others, 1986 (II) OLR-173, wherein the Hon’ble Single Judge decided that the consolida¬tion authority has no jurisdiction to decide whether a sale deed is a benami transaction or not and therefore a suit for setting aside the sale on the ground of benami does not abate. In Pagal Das and others Vs. Upendra Dutta and others, 1989 (II) OLR-347, this Court has examined the question whether a suit in which the sale deed allegedly to have taken by practicing fraud on the executants abates or not.Hon’ble Shri G.B.Pattnaik, J, as His Lordship was then, held that the document on the face of its transfers titles unless it is held to be invalid on the ground stated in the plaint itself and consequently it depends upon an adjudication and ancillary findings to be arrived at on the basis of evidence to be adduced in the case. Such an adjudi¬cation and consequential relief cannot be appropriately made by the consolidation authorities and in that view of the matter the suit does not abate. 10. While deciding whether a suit abates or not, the Court before whom the matter is pending, has to find out what is the essence of the dispute between the parties and such a dispute can be said to be one, which can be adjudicated upon by the con¬solidation authorities then consequentially the suit would abate. On the other hand, it would be beyond the power and competence of consolidation to adjudicate the dispute, and then the suit will not abate. 11. In case right, title and interest are claimed on the basis of a document and ordinarily such a document would be binding on the party contesting the claim unless it is cancelled or set aside. It is clear that the consolidation authority would have no jurisdiction to decide upon such claim as such decision would invariably lead to a determination of the validity of the document, which is plainly outside reach of those authorities. It is clear that the consolidation authority would have no jurisdiction to decide upon such claim as such decision would invariably lead to a determination of the validity of the document, which is plainly outside reach of those authorities. The determination is not a necessary consequence of the exercise of power by the consolidation authorities, and in fact, inciden¬tal thereto but is intrinsically connected with the adjudication upon the binding character of the document since the right itself is claimed to flow out of it. Such adjudication can only be made by the Civil Court. It is not material whether the suit is brought for cancellation of the deed or the defence in the suit raises the objection regarding the validity of the document/deed, the ultimate reason remains the same, namely, the declaration as to whether the deed is binding or not. 12. In such a situation, the consolidation authorities are not having jurisdiction to decide whether the deed is in fact a voidable document, and therefore, they do not have the requisite authority to declare a deed void. Thus, the appeal before the Ist appellate Court cannot be held to have abated. Though learned Ist appellate Court has not considered this aspect, this Court is of the opinion that no injustice has been caused because of such non-consideration as the end result is that the suit/appeal does not abate. 13. The next point which requires careful consideration is whether the learned trial Court and the Ist appellate Court were right in holding the proof of execution by the late defendant no.1, Rajani Dei is correct or otherwise. Learned trial Court has held that the burden of proving fraud is on the defendants. Learned lower Court carefully assessed the evidence in this regard and has come to the conclusion that the defendant has not proved that the sale deed was executed on the basis of fraudulent representation. Such a finding has also been accepted by the Ist appellate Court. Learned trial Court, however, did not consider the material before it to see whether the deed executed by the defendant no.1 was in fact her mental act also. A Paradanasini lady in our country are conformed a special status, as far as appreciation of evidence in proof of execution of document, alleged to have been executed by them, is concerned. Learned trial Court, however, did not consider the material before it to see whether the deed executed by the defendant no.1 was in fact her mental act also. A Paradanasini lady in our country are conformed a special status, as far as appreciation of evidence in proof of execution of document, alleged to have been executed by them, is concerned. A person who relies on a document, which has been executed by Paradanasini lady, must establish that she knew the purport and consequences of her acts of execution and that she had independent advice in the matter. The ratio of protecting a Paradanasini lady is also extended to illiterate ladies. In the present case, though the evidence is not forthcoming that Rajani Dei was a Paradanasini lady,it is well inferable that she was illiterate lady in view of the fact that she has executed the sale deed by affixing her left thumb impression. Such being the case, it is safe to assume that the said Rajani Dei was an illiterate person. 14. Coming to the present case, it is seen that though the said Rajani Dei was an illiterate lady, she has executed the document in presence of her son, namely Umakanta Jena, who has been examined as D.W.1.Learned trial Court has discussed this matter at length and has held that D.W.1 had accompanied the executant. Since this Court does not find any material irregular¬ity in appreciation of evidence in this case, there is no need to take a different view. 15. Since in this case, the son of the executant himself is a signatory to the deed of sale being an attesting witness there¬of, the Court is of the opinion that the normal rule of apprecia¬tion of evidence putting a burden on the party relying on such document is not applicable to this case. In other words, this can be taken as an exception. 16. It is also evident from the record that defendant no.1, Rajani Dei was alive when the judgment was pronounced. She was alive by the time the evidence was being recorded. No explanation is forthcoming why the said defendant no.1 was not examined as a witness for the defendants. When a party claimed that she has been fraudulently misled, then she must examine herself as a witness, if there is no other impediment for her examination. She was alive by the time the evidence was being recorded. No explanation is forthcoming why the said defendant no.1 was not examined as a witness for the defendants. When a party claimed that she has been fraudulently misled, then she must examine herself as a witness, if there is no other impediment for her examination. In case of non-examination of such a party, who has a special means of knowledge regarding the fraud allegedly played on her an adverse inference has to be drawn. 17. Appellants claim that the executant has cancelled the sale deed by executing another deed on 12.03.1987. However, a sale is contract between two parties. When such sale is with relation to immovable property for value of more than Rs.100/-, it is compulsorily registerable. Once, a sale is executed and the same is registered, it cannot be cancelled by any one of the parties. Only on consent of both the parties, such a sale can be cancelled. It is not the case of the defendants that there was a consensus among the parties on cancellation of the deed. The document also reveals that the deed was unilaterally cancelled by late Rajani Dei. Thus, such cancellation of the sale deed shall not nullify effect of the registered sale deed so far as convey¬ance of the title to the plaintiff is concerned. In the result, the second appeal fails and the findings recorded by both the Courts require no interference. No costs. Appeal fails.