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2014 DIGILAW 260 (ORI)

Raghunath Rath v. Jagannath Harichandan

2014-04-21

RAGHUBIR DASH

body2014
JUDGMENT R. DASH, J. Both the appeals arises out of T.A. No.49 of 1993 passed by the learned District Judge, Puri challenging the judgment and decree dated 20.08.1998 and 04.09.1998, respectively, passed in the Title Appeal, confirming the judgment and decree dated 24.03.1993 and 08.04.1993, respectively, passed by the learned Subordinate Judge, Puri in T.S. No.38 of 1990. 2. Originally the suit was between Jagannath Harichandan (plaintiff) and his natural son, Debaraj Harichandan (defendant), who is given in adoption to plaintiff’s brother, Naranbandhu Harichandan. S.A. No.59 of 1999 has been preferred by the original defendant-Debaraj Harichandan. S.A. No.57 of 1999 has preferred by Raghunath Rath and Bijaya Kumar Rath, who were arrayed as respondent Nos.2 and 3 during pendency of the first appeal as lis pendens purchasers. Here-in-after they will be referred to as lis pendens purchasers. 3. The plaintiff-Jagannath Harichandan died on 29.01.1999 after judgment and decree in the Title Appeal. Therefore, his legal heirs have been permitted to be arrayed as respondent Nos.1 to 6 in both the appeals. The plaintiff-late Jagannath Harichandan filed the suit taking the stand that when the Orissa Land Reforms Act came in operation in Orissa, the plaintiff was advised by his well wishers to execute some sham deeds in favour of his wife, younger son, who was living in jointness with the plaintiff and his elder son, Debaraj, who was given in adoption to Naranbandhu Harichandan. On 01.07.1972, he along with his elder son (defendant) went to the Sub-Registrar’s Office at Puri to execute and register the deeds. The defendant arranged his own men as deed writer and witnesses and got some deeds executed including one sale deed in his own name. But the contents of the sale deed were not read over and explained to the plaintiff. The defendant bore all the expenses for registration of the sale deed. The defendant got some terms and conditions incorporated in the sale deed which were favourable to him but without the knowledge and intent of the plaintiff. Though the defendant had assured to handover the sale deed to the plaintiff, the former retained the document with him. Since it was a sham deed there was no passing of consideration and it was not followed by delivery of possession. The plaintiff as usual remained in possession of the land shown to have been transferred under the sale deed. Though the defendant had assured to handover the sale deed to the plaintiff, the former retained the document with him. Since it was a sham deed there was no passing of consideration and it was not followed by delivery of possession. The plaintiff as usual remained in possession of the land shown to have been transferred under the sale deed. In the year 1989, the defendant threatened to cut and remove trees standing on the land in question. So the plaintiff filed a suit for permanent injunction in the court of Munsif, Puri and initiated a proceeding under Section 144, Cr.P.C. It was disposed of in favour of the defendant. So, he became emboldened and attempted to cut and remove the paddy crop standing on the land in question. So the plaintiff filed the suit for declaration of his title, confirmation of possession, in the alternative recovery of possession, along with the relief of permanent injunction and for declaration that the sale deed is void. 4. The case of the defendant is that the defendant’s natural father (the plaintiff) and his adoptive father (Naranbandhu) are sons of Kulamani and Bhagabata, respectively, who are sons of late Lokanath. The family of Jagannath and Naran were living in jointness. The plaintiff was the karta of the joint family. 5. Denying all the averments in the plaint in relation to the alleged sham transaction, the defendant has taken the stand that the plaintiff being the karta of the joint family and on account of legal necessity of the family wanted to sell the suit land to outsiders but in order to keep family prestige the defendant arranged money from his father-in-law and purchased the suit land in his name. There was passing of consideration as well as delivery of possession. Thus, the sale deed is genuine deed and the suit is liable to be dismissed. 6. Learned trial court after examining the entire evidence concluded that the sale deed in question is a nominal deed and no title in the land passed on to the defendant and that the plaintiff has all along been in possession of the land. Resultantly, the trial court decreed the suit granting the reliefs prayed for. The learned lower appellate court confirmed the judgment and decree of the trial court concluding that there was no scope to interfere with the verdict of the learned trial court. 7. Resultantly, the trial court decreed the suit granting the reliefs prayed for. The learned lower appellate court confirmed the judgment and decree of the trial court concluding that there was no scope to interfere with the verdict of the learned trial court. 7. During pendency of the first appeal, the lis pendens purchasers, Raghunath Rath and Vijaya Kumar Rath, approached the learned appellate court to be added as respondents in the first appeal. Their prayer being rejected, they approached this Court in Civil Revision No.280 of 1995 which was allowed and they were permitted to be added as respondents in the first appeal. In S.A. 57 of 1999, they are the appellants. On their behalf, it is argued that the suit between the father and the son is collusive in nature in order to frustrate the sale transactions that the son has made from out of the suit land. It is further submitted that during pendency of the present appeal, the lis pendens purchasers have collected a very important piece of evidence which, if produced and proved, the judgments of the learned courts below would be greatly influenced. The document which the lis pendens purchasers want to be admitted as Additional evidence is registered sale deed no.85 of 18.1.1982 which has been executed by the defendant alienating suit plat No.369 which is covered under the impugned sale deed. The most important fact is that in that registered sale deed dated 18.1.1982 which was executed about 10 years after the execution of the impugned sale deed, the father himself is a witness. Though the father is a witness to the registered sale deed dated 18.1.1982 and he filed the suit in the year 1999 putting plot No.369 in the plaint schedule as a part of the suit land, he has not impleaded the transferee under the sale deed dated 18.1.1982, namely, Laxman Pradhan as a defendant in the suit. It is forcefully argued that in the absence of Laxman Pradhan the suit, out of which the 2nd appeal arises, would be bad for non-joinder of necessary party. It is also strenuously argued that since the father has become a witness to the sale transaction vide RSD dated 18.1.1982 he has impliedly admitted the impugned sale deed to be genuine and it conveyed title to his son. 8. Learned counsel for respondent Nos. It is also strenuously argued that since the father has become a witness to the sale transaction vide RSD dated 18.1.1982 he has impliedly admitted the impugned sale deed to be genuine and it conveyed title to his son. 8. Learned counsel for respondent Nos. 1(a) to 1(g), legal heirs of Jagannath Harichandan who died during pendency of the second appeal, submits that the prayer for production of Additional evidence should not be allowed in the second appeal which is maintainable only on question of law. It is true that the parties to the proceedings in the second appeal are not entitled, as a matter of right, to adduce Additional evidence. But in exceptional and compelling circumstances, permission has to be granted in the ends of justice. In this case, the RSD dated 18.1.1982 originated about 10 years before filing of the suit. The defendant in the suit would, ordinarily, have taken a plea that in the absence of the transferee vide RSD dated 18.1.1982 the suit is not maintainable. He could have also taken the stand that since the plaintiff (his father) was a witness to the RSD dated 18.1.1982 he had impliedly admitted the defendant’s title in the suit land. But no such stand was taken by the defendant. Furthermore, another vital aspect is that the plaint was presented on 7.2.1990 which was admitted on 16.4.1990. The defendant executed one registered sale deed on 20.4.1990 and another such sale deed on 15.12.1990 in favour of lis pendens purchasers. It may be argued that when the first deed was registered on 20.4.1996 the defendant had no knowledge about filing of the suit but by the time the second sale deed was registered on 14.12.1990, he had already appeared in the suit on 10.8.1990 and thereafter filed W.S. on 12.3.1991. He should not have transferred any portion of the suit land during pendency of the suit. That apart, in his W.S. he has not pleaded that in the meanwhile he has alienated some portions of the suit land in favour of the lis pendens purchasers. For this reason and some other reasons stated earlier, it is suspected that both the plaintiff and the defendant did not approach the trial court with clean hands. The lis pendens purchasers are to establish that notwithstanding their exercising due diligence they had failed to get knowledge about the existence of RSD dated 18.1.1982. For this reason and some other reasons stated earlier, it is suspected that both the plaintiff and the defendant did not approach the trial court with clean hands. The lis pendens purchasers are to establish that notwithstanding their exercising due diligence they had failed to get knowledge about the existence of RSD dated 18.1.1982. Since they are not parties to the sale transaction vide the RSD dated 18.01.1982 and since the plaintiff and defendant did not make any disclosure about the existence of such a deed it is to be presumed that despite of their exercising due diligence the lis pendens purchasers could not get knowledge about the deed. As a result the prayer for permission to produce additional evidence is allowed. 9. Learned counsel for respondent Nos. 1(a) to 1(g) submits that since the execution of RSD dated 18.1.1982 is not admitted and the original deed having not been filed, the certified copy of the sale deed cannot be admitted in evidence without proof of its due execution. 10. The lis pendens purchasers want some more documents to be admitted as Additional evidence. They want to exhibit the two registered sale deeds that the defendant has executed in their favour during pendency of the suit and certified copy of the order passed in Mutation Case No.753 of 1993 and Mutation ROR obtained by the lis pendens purchasers on the strength of the sale deeds. 11. Having heard the learned counsels and considering the materials available, this court considers it to be in the interest of justice to remit the matter to the learned trial court to give full opportunity to the lis pendens purchasers to protect their rights. During pendency of the appeal, they were allowed by this Court to be added as respondents in the first appeal relying on the decision in Shri Jagannath Mahaprabhu -v-Pravat Chandra Chaterjee, 1992 (I) OLR 17 (FB) wherein it is observed that lis pendens purchasers have liberty of applying for being added as parties for the purpose of protection of their rights. If the matter is not remanded to the trial court, the lis pendens purchasers will not be able to get complete chance to protect their rights. The RSD dated 18.1.1982 is a very vital document. As already discussed, the question of non-addition of necessary party, i.e., Laxman Pradhan, the vendee under RSD dated 18.1.1982 is likely to arise. If the matter is not remanded to the trial court, the lis pendens purchasers will not be able to get complete chance to protect their rights. The RSD dated 18.1.1982 is a very vital document. As already discussed, the question of non-addition of necessary party, i.e., Laxman Pradhan, the vendee under RSD dated 18.1.1982 is likely to arise. Proof of due execution of the RSD dated 18.1.1982 will be necessary. Since there are circumstances showing that the father and son who were parties in the suit have not approached the court with clean hands, the lis pendens purchasers must get opportunity to file their own written statement to enable them to adduce evidence to protect their rights. If the RSD dated 18.1.1982 is duly proved, it may tend to influence other evidences on record and the ultimate decision on the merit of the case may get affected. 12. Under such circumstances, the prayer for production of Additional evidence made by the lis pendens purchaser is allowed. The judgment and decree of both the courts below are set aside. The matter is remanded to the trial court for disposal of the suit afresh. The evidence already on record shall remain as such. However, the learned trial court shall give opportunity to the parties, including any new party added subsequent to the remand to file their pleadings and to adduce evidence/additional evidence. It shall dispose of the suit in accordance with law.