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2011 DIGILAW 7 (ORI)

Krushna Mohan Patnaik v. Dambarudhar Patnaik

2011-01-04

SANJU PANDA

body2011
JUDGMENT SANJU PANDA, J.-The Appellant, who is Defendant No.2 in the Court below, challenging the Judgment & decree dated 16.12.1982 & 23.12.1982 respectively passed by the Learned Sub-Judge, Athagarh in Title Suit No.2 of 1979 has filed this appeal. 2. The facts of the case are as follows Respondent Nos. 1, 2 & 3 as Plaintiffs filed a suit which was registered as Title Suit No.2 of 1979 with the following prayer: (i) a decree for declaration of joint right, title & interest as well as that of Defendant No.1 in respect of the suit properties fully described in the Schedule of the plaint (ii) for a declaration that the Schedule properties mentioned in the plaint as joint family properties of the Plaintiffs & that of Defendant No.1. (iii) for a declaration that Defendant No.3 is not the adopted son of Defendant No.1. (iv) delivery of possession of 'A' & 'A/1' Schedule lands to the Plaintiffs & Defendant No.1 through Court. (v) for grant of Rs. 3,000 as mesne profit as against Defendant No.2. (vi) issue of a mandatory injunction to Defendant No.2 to unlock the residential building belonging to the Plaintiffs & restraining him from interfering with the peaceful possession & enjoyment thereof, cost of the litigation expenses & any other relief or reliefs to which they are entitled to under the law & equity. The genealogy of the parties is as follows: Paramananda Padmacharan Chakradhar Bansidhar Dambarudhar Chandra Sekhar Adwaita (D-1) (P-1) (P-2) (P-3) 3. The case of the Plaintiffs is that one Paramananda Pattnaik had two sons, namely, Padmacharan & Chakradhar. Padmacharan died leaving behind him his two sons, namely, Bansidhar (D-1) & Dambarudhar (P-1). Chakradhar had also two sons, namely, Chandrasekhar (P-2) & Adwaita (P-3). 4. The properties described in the schedule of the plaint are all ancestral properties belonging to the Plaintiffs & Bansidhar (D-1). Those properties were inherited from their grand father & all the parties are still living jointly & constitute a Hindu Mitakshara joint family as there was no severance of joint status between them at any point of time. Thus, there was no question of any previous partition by metes & bounds. Therefore, the further case is that about 50 years back, they shifted to Dhenkanal from Tigiria & residing there & Defendant No.1 being the eldest & Katra of the family. Thus, there was no question of any previous partition by metes & bounds. Therefore, the further case is that about 50 years back, they shifted to Dhenkanal from Tigiria & residing there & Defendant No.1 being the eldest & Katra of the family. While Defendant No.1 was looking after the joint family properties, dissension & ill-feeling arose between the Plaintiffs & Defendant No.1 as a result of which Defendant No.1 has alienated the suit properties described in Schedule 'N' of the plaint by virtue of a registered sale deed in favour of Defendant No.2, Krushna Mohan Pattnaik on 26.8.1968. Defendant No.1 has also alienated Schedule 'B' property on 26.9.1968 by virtue of a registered sale deed in the name of his wife, Nisarnani. Nisamani specifically alienated the said property in favour of Defendant No 3 on 16.6.1979 on the strength of another registered sale deed. Defendant No.1 gifted the Schedule 'C' properties on 28.9.1979 in favour of Defendant No.3. The aforesaid sale deed & gift deed in favour of Defendant, Nos. 2 & 3 have not been acted upon or delivery of possession has not been made to the valid. Therefore, the same are not binding on the Plaintiffs as well as Defendant No.1. 5. The sale deed & gift deed in favour of Defendant No.3 were made due to undue influenced by the brother of Nisamani & .Defendant No.3 was never adopted as the son of Defendant No.1 at any point of time as stated in the plaint & the plea of adoption is a colourable pretence to grab the joint family properties. As Defendant Nos. 2 & 3 have filed the suit with the aforesaid reliefs. 6. Defendant No.1 filed his written statement & in his written statement so far as the genealogy is concerned he admitted the same & also admitted that the properties are ancestral properties. He has specifically stated in his written statement that he was aged about 75 years old in 19638-69 when he executed the sale deed in favour of Defendant No.2. The father of Defendant No.3 who is the brother-in-law (wifes brother) of Defendant No.1 persuaded & persisted upon Defendant No.1 for alienation & his intention is that he will continue in possession till his death. The father of Defendant No.3 who is the brother-in-law (wifes brother) of Defendant No.1 persuaded & persisted upon Defendant No.1 for alienation & his intention is that he will continue in possession till his death. But in breach of aforesaia assurance, when Defendant No.2 sought to possess the properties, misunderstanding arose & Defendant No.1 cancelled the sale deed by another registered deed. When there was scramble over possession, 145 Cr. PC. proceeding was started & Defendant No.2 succeeded there & remained in possession of the properties. Defendant No.1 never adopted Defendant No.3. 7. Defendant No.2 (present Appellant) filed his written statement & specifically denied all the allegations made in the plaint as well as in the written statement filed by Defendant No.1. He further stated that the suit was barred by principle of res judicata & .the Plaintiffs are estopped to file the present suit in respect of the suit property as earlier. Plaintiff Nos. 2 & 3 have filed a Title Suit bearing No. 30 of 1968, Defendant No.1 & Plaintiff No.1 in the Court of Sub-Judge, Dhenkanal & the said suit was dismissed against the said decree. The unsuccessful Plaintiffs have filed which was also dismissed & reach its finality. Schedule 'A' property mentioned in the plaint is recorded in the name of Defendant No.1 on the last settlement held in the year 1932-33. Defendant No.1 being separate from his brother has got those properties & recorded solely in his name without any objection from any corner since them. The Plaintiffs shifted to Dhenkanal & remained there getting the Dhenkanal properties & they did not object to the ROR standing in the name of Defendant No.1. The properties located at Tigiria Tahasildar in different villages were not recorded in the name of Defendant No.1 as he was the eldest member of the joint family but was recorded in his name alone as his own property. He has got the same on partition. Defendant No.1 was enjoying all the suit properties situated in Tigiria Tahasil & not given any share to anybody. Defendant No.1 while living in village Kalibiri at Tigiria he got his leg fractured by fall. He has got the same on partition. Defendant No.1 was enjoying all the suit properties situated in Tigiria Tahasil & not given any share to anybody. Defendant No.1 while living in village Kalibiri at Tigiria he got his leg fractured by fall. The Plaintiffs took him to Dhenkanal for better treatment & Defendant No.1 has alienated the Tigiria properties including Schedule 'A' properties in favour of Defendant No.2 by registered sale deed which was noticed to the whole world as a whole including the Plaintiffs. As some of the notorious persons of the village Kalibiri created troubles taking advantage of the old age of Defendant No.1. he could not resist them & wanted to sold Schedule 'A' properties. The father of Defendant No.2 paid the consideration money & purchased 'A' Schedule properties in the name of Defendant No.2. Prior to registration, the delivery of possession of schedule lands was given on 26.8.1968. The Plaintiffs being the third parties have got no right to challenge the non-passing of consideration. Defendant No.1 would have come to the Court to cancel, the same deed within a statutory period as provided under the law. After being defeated in a proceeding under Section 145 Cr. P.C. in Crl. Misc. Case No.3 of 1970 the Plaintiffs have also failed to disclose the fraudulent acts & nature of the same in their plaint. The sale deed executed in favour of this Defendant was acted upon & the Schedule 'A' properties was recorded in his name in the current settlement operation. Defendant NO.1 being in possession of the properties at Tigiria exclusively for more than 50 years to the exclusion of the Plaintiffs & perfected his own right title & interest over the same & it was within his right to deal with the properties as he like. The Plaintiffs have taken advantage of the old age of Defendant No.1 & his wife taken them under their clutches & exercising their undue influence filed the present suit to grab the properties of Defendant No.1. Therefore, the suit is liable to be dismissed. Defendant No.3 has also filed his written statement before the pleadings & contested the suit. 8. On the above pleadings of the parties, the Learned Trial Court formulated as many as 13 issues & for convenience he has clubbed Issued Nos. 3, 4, 6 & 7 together & those issues are as follows: 3. Defendant No.3 has also filed his written statement before the pleadings & contested the suit. 8. On the above pleadings of the parties, the Learned Trial Court formulated as many as 13 issues & for convenience he has clubbed Issued Nos. 3, 4, 6 & 7 together & those issues are as follows: 3. Is there any cause of action for filing such a suit against Defendant No.3? 4. Is the suit barred by the law of estoppel & principle of res judicata? 6. Is the Plaintiffs & Defendant No.1 are members of a joint family & was there no partition amongst them? 7. Are the sale deed dated 23.10.1968, gift deed dated 28.3.1969 made by Defendant No.1 in respect of Defendant No.2 & Defendant No.4 respectively & the sale deed dated 10.6.1969 made by Defendant No.2 in favour of Defendant No.4 are valid & genuine & acted upon? The Learned Trial Court has given the following findings on the aforesaid issues: (i) The averments in the plaint relating to the jointness is very consistent & cogent in view of the evidence laid by PW.1 & P.W.2. (ii) It is highly injusticeable as well as impossible that only 3 acres of old properties fell to the share of the plaintiffs at Dhenkanal which is only 4 annas whereas the rest 12 annas fell to the share of Defendant No.1 & therefore it clears shows that there was absolutely no actual division by metes & bounds. (iii) As the age of the Plaintiff No.3 was 52 years at the time of filing of the suit, therefore, the contention that a partition took place 50 years back cannot be believed as the Plaintiff No.3 was not born & other Plaintiffs were minors. Thus the age of factor is very important & completely falsifies the story of partition. (iv) Defendant Nos,. 2 & 3 have not at all proved by unimpeachable evidence that the Plaintiffs have been ousted out of Tigiria properties whereas the oral evidence forth coming from the side of the Plaintiffs' with regard to jointness is very consistent. (v) Plaintiff No.1 has not at all spoken in his deposition as PW.2 about any partition between Padmacharan & Chakradhar or their branch at any point of time. (vi) Although the Defendant No.1 admitted partition in his written statement filed in TS. No. 30/1968 (Ext. (v) Plaintiff No.1 has not at all spoken in his deposition as PW.2 about any partition between Padmacharan & Chakradhar or their branch at any point of time. (vi) Although the Defendant No.1 admitted partition in his written statement filed in TS. No. 30/1968 (Ext. C-1/9) but the same has not force 'because the admission of Defendant No.1 in the previous suit is not binding on the Plaintiffs & therefore no adverse inference should be drawn out of the written statement filed by Defendant No.1 in T.S. No. 30/1968. (vii) The admission is not a conclusive proof & it may be explained & proved to be wrong. (viii) The recitals of the sale deeds are of no consequence to Defendant Nos. 2 & 3 to prove the factum of the previous partition & any admission thereunder do not find the Plaintiffs. (ix) As the witnesses for Defendants are interested witnesses who have no idea either about the family properties or could say who was looking after the properties, therefore their evidence is not worthy of credit. So also no documents or installments in any manner has been proved on behalf of the Defendant Nos. 2 & 3 evidencing the previous partition or actual division of the joint family properties. (x) The Defendant Nos. 2 & 3 in their written statement have stated that the suit properties are ancestral properties & they have utterly failed to prove the fact of previous partition & that there was no severance of joint status or partition between the Plaintiffs & Defendant No.1. 10. Learned Counsel appearing for the Appellant has submitted that the aforesaid findings of the Trial Court -are erroneous, illegal & are bound to set aside by this Court. 11. Learned Counsel appearing for the Respondents in the other hand submitted that Respondent No.5 in the present appeal submitted that the present appeal is dismissed against Respondent No.5 since 1984 without going into the merits of the case. 12. Learned Counsel appearing for the Appellant on the submission of the Learned Counsel for the Respondents stated that if this Court accept the argument of the appeal that suit is not maintenance by the Plaintiffs, then the question raised by the Learned Counsel for the Respondents for dismissal of the appeal against Respondent No.5. 12. Learned Counsel appearing for the Appellant on the submission of the Learned Counsel for the Respondents stated that if this Court accept the argument of the appeal that suit is not maintenance by the Plaintiffs, then the question raised by the Learned Counsel for the Respondents for dismissal of the appeal against Respondent No.5. It appears that Respondent No.5 is Defendant No.3 in the Court below & the suit was decreed against him & he has not challenged the Judgment & decree. So far as the right is concerned the same is finding. The present Appellant has challenged the finding against him so far as the property he has purchased by virtue of a registered sale. As the property can be severed the appeal can be heard on merits on behalf of the Appellant who is Defendant No.2 in the present appeal. 13. On the above facts & submissions of the Counsels, the following questions are to be decided in the present appeal: (1) Whether the Judgment & decree of joint declaration of the title & Plaintiffs along with Defendant No.1 sustainable in eye of law. On the conclusion that there was no severance of joint status between the Plaintiffs & Defendant No.1. (2) Whether there was previous partition between the Plaintiffs & Defendant No.1 before the execution of the sale deed in favour of Defendant No.2 in view of the written statement deposition given by Defendant No.1 in T.S. No. 30/1968 & where the Judgment passed thereon is binding on the Plaintiffs & Defendant No.1 of the present suit? 14. Plaintiffs 2 & 3 had filed Title Suit No. 30 before the Sub-Judge, Dhenkanal for partition of Tigiria properties earlier. The materials available on record & the evidence led by the parties reveal that the said suit was dismissed for non-prosecution. Therefore, the same was not binding on the parties & both the Plaintiffs & Defendant No.1 have explained the pleadings made in Title Suit No. 30 of 1968. The age of Plaintiff No.3 was two years at the item of filing of the suit. Therefore, the plea taken by Defendant Nos. 2 & 3 that a partition took place 50 years back cannot be believed because at that time he might be a minor or might have not born even. Therefore, it can safely be concluded that there was no partition between the Plaintiffs & Defendant No.1. Therefore, the plea taken by Defendant Nos. 2 & 3 that a partition took place 50 years back cannot be believed because at that time he might be a minor or might have not born even. Therefore, it can safely be concluded that there was no partition between the Plaintiffs & Defendant No.1. It is the admitted case of the parties in the present suit that the properties were ancestral properties of the Plaintiffs & Defendant No.1. Defendant Nos.2 & 3 are sons of the brother-in-law (wife's brother) of Defendant No.1 & Defendant No.1 as staying at Tigiria an being the eldest, was looking after the properties & while living in village Kalibiri, Defendant No.1 got Iris leg fractured by fall. The Plaintiffs took him to Dhenkanal for better treatment. Taking advantage of the absence of Defendant No.1, Defendant No.3 who was permitted to look after the house, forcibly occupied the same without having any right. Therefore, a proceeding under Section 145 Cr. PC. was initiated & Defendant No.1 also cancelled fraudulent sale deed executed in favour of Defendant No.2 in respect of 'A' Schedule properties. Defendant No.2 (earlier Defendant No.3) who is the brother-in-law of Defendant No.1 taking advantage of old age & illness of Defendant No.1 & his wife tried to grab the joint family properties without any right & in absence of proved facts regarding previous partition of the properties between the Plaintiffs & Defendant No.1, the Plaintiffs are entitled to the reliefs sought & in view of the admission of the parties that the properties are ancestral properties, the same are belong to the joint family properties of the Plaintiffs & Defendants. Therefore, the Plaintiffs were entitled to the decree of declaration that the properties were joint family properties & since the Trial Court has passed a joint decree against Defendant Nos. 2 & 3, the said decree is not severable & admittedly Defendant No.3 has not preferred any appeal against the said decree. Therefore, the decree against him has become final. From the evidence adduced by the Defendants & the witnesses examined by the Defendants it appears that they, have no ideal about the family properties as they were not able to say as to who was managing the joint family properties. Therefore, their evidence is not worthy to be considered in this appeal. From the evidence adduced by the Defendants & the witnesses examined by the Defendants it appears that they, have no ideal about the family properties as they were not able to say as to who was managing the joint family properties. Therefore, their evidence is not worthy to be considered in this appeal. The present Appellant-Defendant No.2 has only preferred this appeal against the Tried Court decree & Defendant No.3 has been made proforma Respondent No.5 against whom the appeal has been dismissed since 1984. As such, the decree passed by the Trial Court in respect of Respondent No.5 has become final & has been confirmed. If any decree is passed in the present appeal, it will be contrary to decree which has been passed against Respondent No.5. Therefore, this appeal is liable to be dismissed. The present appeal become incompetent due to absence of Respondent No.5 against whom the suit was dismissed & if the appeal allowed it will lead to the conflict decision. Defendant Nos. 2 & 3 are not members of the joint family & the sale deed executed in favour of Defendant No.2 by Defendant No.1 being cancelled & as the entire suit properties were belong to the joint family, Defendant No.2 is not entitled to any right over the joint family properties. As such the finding of the trial that the sale deed in favour of the Defendant No.2 is void confirmed in this appeal. 15. In view of the above findings there is no merit in this appeal & accordingly the same is dismissed.