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2014 DIGILAW 13 (ORI)

Chakradhar Joshi v. Janardan Joshi

2014-01-08

S.PANDA

body2014
JUDGMENT S. PANDA, J. : This Second Appeal is directed against the judgment and decree dated 27.11.2000 and 16.12.2000 respectively passed by the learned Addl.District Judge, Balangir in Title Appeal No.32/11 of 1993-1997 arising out of Title Suit No.84 of 1989. 2.The substantial question of law formulated at the time of admission of the second appeal is as follows. Whether passing of title was depending on the passing of consideration or not which requires determination. However, at the time of hearing of this second appeal also it appears that another substantial question of law which is to be considered in this appeal i.e. whether non-consideration of material evidence on record vitiate the conclusion of the Court below. 3.The respondents are plaintiffs and respondent No.1-Janardhan Joshi filed the suit for declaration of right title and interests over the disputed land and to injunct the defendants not to interfere with his possession. The defendant No.1 is the brother of plaintiff and defendant No.2 is the mother. The parties are governed by Hindu Law. Plaintiff pleaded that in the year 1966 there was a partition between the father and five brothers. The disputed land fell to the share of the father Bigyananda Joshi. However, no share has been allotted to the mother. On 28.6.1986 the father has sold, Schedule ‘A’ and ‘C’ land allotted to him, to the plaintiff for Rs.3,000/- to meet his legal necessity and delivered possession of the land. After purchase, the plaintiff possessed the land. Thereafter, the father has also exchanged ‘B’ schedule land with him by taking the portion of land allotted to the plaintiff. Accordingly, the plaintiff has been possessing Schedule ‘A’, ‘B’ and ‘C’ land as described in the plaint. The defendant No.1 is also aware about the exchange of land between the plaintiff and his father. Plaintiff maintained his parents and performed the funeral ceremony of his father. Defendant No.1 influenced the mother (defendant No.2) after the death of the father and took her to his house and obtained sale deed from her without passing of any consideration. As such the defendants have no right over the disputed property. The counter claim made by defendant No.1 is baseless and not maintainable as the defendants disturbed the possession of the plaintiff hence the suit. The defendant No.2 was set ex-parte as she has not appeared nor filed any written statement. As such the defendants have no right over the disputed property. The counter claim made by defendant No.1 is baseless and not maintainable as the defendants disturbed the possession of the plaintiff hence the suit. The defendant No.2 was set ex-parte as she has not appeared nor filed any written statement. The defendant No.1 filed his written statement traversing the plea made by the plaintiff. He has specifically taken his stand that in the partition between father and sons the share allotted to the father is for maintenance of the parents. His father never sold the land to the plaintiff but executed a deed as plaintiff agreed to maintain the parents. After execution of the said deed and death of the father, the plaintiff neglected to maintain defendant No.2. In the Panchayat the plaintiff also agreed to give half of the of the suit land to defendant No.1 as he failed to maintain the widow mother. The widow mother is entitled to the share allotted in favour of the father for her maintenance. During her life time she has executed a sale deed in favour of defendant No.1 on 4.3.1989 in respect of the land allotted to the father as defendant No.1 was looking after her and delivered possession thereof. Accordingly, defendant No.1 is entitled to the as he has also in possession of the disputed land and the plaintiff has no right title and interest over the said disputed land. 4.On the aforesaid pleading the trial Court has formulated as many as ten issues and recorded the following findings :- Ext.A is a deed executed on the condition that the plaintiff will maintain the parents. It is admitted by the plaintiff in his cross-examination that he has scribed the said document. Ext.A reveals that father has executed the sale deed in favour of the plaintiff and plaintiff kept the sale consideration to maintain him. The said averment makes it clear that the sale consideration has not passed to the father when he executed the sale deed Ext.3. It is not the case of the plaintiff that father after receiving the sale consideration gave the disputed land to him. Since passing of consideration is a condition precedent on the passing of the title, plaintiff will not get any title over the Schedule ‘A’ and ‘C’ land as no consideration was paid by him. It is not the case of the plaintiff that father after receiving the sale consideration gave the disputed land to him. Since passing of consideration is a condition precedent on the passing of the title, plaintiff will not get any title over the Schedule ‘A’ and ‘C’ land as no consideration was paid by him. The mother is the owner after death of father in respect of the land allotted to father. She has right to possess the suit land. Her entitlement cannot be extinquished by any overtact of the plaintiff. Ext.D is the sale deed executed by the defendant No.2 in favour of defendant No.1 and consideration money was paid to her in presence of Sub-Registrar. The sale deed executed in favour of defendant No.1 is a valid document and therefore the plaintiff has no title over the suit land. In the above finding, the trial Court has dismissed the suit on contest against defendant No.1 and ex-parte against defendant No.2. The Trial Court also dismissed the counter claim filed by the defendant against plaintiff. 5.The plaintiff has filed the appeal challenging the judgment and decree passed by the trial Court. The appellate Court reversed the judgment and decree passed by the trial Court. The appellate Court has considered whether plaintiff has acquired title over ‘C’ Schedule land by virtue of Ext.3 and whether plaintiff got ‘B’ Schedule land by exchanging his land with his father and acquired title over the same for his long possession peacefully within the knowledge of all. He has reversed the finding of the Trial Court mainly on the ground that as defendant No.2 has not contested the suit and she died during pendency of the appeal and her legal heirs conceded to the case of the plaintiff. The title passed on execution of sale deed under Ext.3 to the plaintiff in view of Section 92 of the Indian Evidence Act and Ext.3 cannot be varied or rescinded on the basis of Ext.A. Passing of consideration is not a condition precedent to passing of title. From the date of exchange the plaintiff was in possession of ‘B’ Schedule land by possessing the same continuously openly and in a hostile manner for a prescribed period, hence plaintiff acquired title by way of adverse possession. The defendant has not filed any appeal challenging the dismissal of the counter claim. From the date of exchange the plaintiff was in possession of ‘B’ Schedule land by possessing the same continuously openly and in a hostile manner for a prescribed period, hence plaintiff acquired title by way of adverse possession. The defendant has not filed any appeal challenging the dismissal of the counter claim. 6.The appellant himself argued the appeal and during course of argument he pointed out that the plaintiff as P.W.1 in his evidence at paragraph six categorically stated that he was looking after his parents. In 1985 his father died. He has performed the obsequies of his father. The appellant submits that the aforesaid evidence of the plaintiff has not been taken into consideration by the first Appellate Court, accordingly the conclusion needs to be interfered with. He further supported the finding of the Trial Court as the consideration money has not been paid to the father, the sale deed Ext.3 is a paper transaction only and thereby title cannot be said to have been passed. Therefore, the judgment and decree passed by the appellate Court needs to be reversed. 7.Learned counsel appearing for the respondent submitted that the substantial question of law formulated at the time of admission is whether the consideration has been passed or not and since the materials available on record reveals that consideration has been paid to the plaintiff and plaintiff is in possession of the plaint schedule property the appellate Court rightly decreed the suit reversing the trial Court’s judgment and decree, as such the present appeal is liable to be dismissed. 8.In view of the rival submission of the parties and after going through the record, it appears that the evidence of plaintiff clearly reveals that the father died in the year 1985. Ext.3 is a deed of the year 1986. The certified copy of the deposition of P.W.1 was produced by the appellant in the present appeal. It reveals from the deposition that at paragraph-6 P.W.1 has stated that his father died in the year 1985. 9.On perusal of the record it appears that the appellate Court has not taken into consideration the said evidence of the plaintiff. However, the first appellate Court has given importance to the execution of sale deed Ext.3. It reveals from the deposition that at paragraph-6 P.W.1 has stated that his father died in the year 1985. 9.On perusal of the record it appears that the appellate Court has not taken into consideration the said evidence of the plaintiff. However, the first appellate Court has given importance to the execution of sale deed Ext.3. In case the evidence of plaintiff is accepted to be true, it is not known as to how a dead person executed the said sale deed in the year 1986 and how the same will be considered as valid. Admittedly, the property allotted to the share of the father and after the death of the father, the plaintiff and defendants being the son and wife entitled to the said property along with the other brothers. The mother was with the defendant No.1 after the death of the father which fact was not disputed. After the death of the father, plaintiff has filed the suit for declaration of his right, title and interest over the land allotted to the share of the father. It can also be noted that the entire share allotted to father could not have been alienated depriving the mother for her maintenance and mother has impleaded as defendant No.2. She during her lifetime not supported the claim of the plaintiff. Therefore, rightly the trial Court has dismissed the plaintiff’s suit. Accordingly, the judgment and decree passed by the appellate Court is set aside and the finding of the trial Court is hereby confirmed. In the result, the appeal is allowed. No costs. Appeal allowed.