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2014 DIGILAW 595 (ORI)

Shyam Sundar Pradhan v. Adikanda Pradhan

2014-09-15

RAGHUBIR DASH

body2014
JUDGMENT RAGHUBIR DASH, J. 1. This Second Appeal is in challenge of reversing judgment and decree dated 13.08.2004 and 27.08.2004, respectively, passed by the learned Ad hoc Additional District Judge, Jeypore in R.F.A. No. 10 of 2004 setting aside the judgment and decree dated 04.08.2000 and 18.08.2000, respectively, passed by the learned Civil Judge (Senior Division), Jeypore in T.S. No. 33 of 1995. 2. The Appellant is the plaintiff and the Respondent Nos. 1 to 4 and deceased Respondent No. 5 are defendant Nos. 1 to 5 in the suit. 3. The suit is for declaration of plaintiff’s title over plaint schedule ‘B’ property and for recovery of possession of schedule B(a) to B(d) of the plaint. It is not in dispute that plaintiff and late Debraj Pradhan, father of D-1 to D-3 and husband of D-4 and D-5, are two brothers. Their other two brothers are Rusia and Dinabandhu. Rusia separated from the joint family in 1961 and Dinabandhu died unmarried. 4. The plaint story, in short, is that the plaintiff and father of D-1 and D-3 were separate in both mess and property. Plaint schedule ‘A’ property is plaintiff’s absolute property which he has purchased from his uncle Raghunath Pradhan and aunt Srimati Pradhan under a Registered Sale Deed dated 28.09.1973 on payment of a consideration of Rs.2,000/-. After acquisition of the land under the sale deed the plaintiff constructed a house on a portion thereof and the rest portion is being used as thrashing floor, cattle shed etc. In a proceeding under Section 145, Cr. P.C. (M.C. No. 38 of 1987) before the Executive Magistrate, Jeypore which was between plaintiff and D-1, a compromise was arrived at and on the basis of the compromise petition the proceeding was dropped. In that compromise petition the defendants have admitted that plaintiff has got absolute right, title, interest and possession over the plaint schedule ‘A’ property. D-1 to D-3, who were then in permissive possession of plaint schedule B(a) to B(c) property which are part of the plaint schedule ‘A’ property, agreed to vacate the same within two years. But after expiry of said period when the plaintiff asked them to vacate, they refused to do so. Hence, the suit. 5. D-1 to D-3, who were then in permissive possession of plaint schedule B(a) to B(c) property which are part of the plaint schedule ‘A’ property, agreed to vacate the same within two years. But after expiry of said period when the plaintiff asked them to vacate, they refused to do so. Hence, the suit. 5. D-1 to D-3 in their joint written statement have taken the stand that in the year 1971 their father late Debaraj and the plaintiff Shyam Sundar were separate in respect of their agricultural land but there was no separation in respect of their homestead properties. Their homestead property, including the thrashing floor, cattle shed etc. was held jointly. When matter stood thus, their father Shyam Sundar was murdered. D-1 to D-3 then being minors and D-4 and D-5 the bereaved widows, plaintiff took charge of the defendants and their properties and managed the affairs of the family by looking after landed properties of the family. In the year 1986 there was some dissention. The plaintiff called for a Punch. An agreement was signed with the intervention of gentlemen. The defendants were given to understand that in the agreement the plaintiff admitted that the suit properties including other properties recorded in the names of D4, D-5 and plaintiff’s wife were joint family properties. So far the compromise petition filed in the proceeding under Section 145 of Cr. P.C. is concerned, it is contended that the defendants have never compromised any dispute before the learned Executive Magistrate. The defendants were not aware of any such proceeding as has been alleged. The compromise petition, if any, is a fraudulent and created document. It is said to have been signed by the D-3 though he was then a minor. It is also contended by the defendants that the plaintiff has failed to give correct description of the suit property in the plaint. 6. D-4 and D-5 jointly filed W.S. stating therein, inter alia, that at the time of purchase of ‘A’ schedule property, plaintiff and defendants were living in jointness and plaintiff being the karta of the family the said purchase was made in his name. However, it was purchased from the joint family nucleus. It is also contended by them that the suit schedule property fell in their share. In the alternative, it is claimed that they have perfected their title by way of adverse possession. 7. However, it was purchased from the joint family nucleus. It is also contended by them that the suit schedule property fell in their share. In the alternative, it is claimed that they have perfected their title by way of adverse possession. 7. Learned trial court after analyzing the evidence on record gave findings that at the time of acquisition of the suit property plaintiff and defendants were not living in jointness, that the plaintiff had sufficient income of his own and the suit property was acquired out of his own income, that plaintiff is the absolute owner of the suit property, that the compromise petition filed before the learned Executive Magistrate is operative and binding, that the agreement does not indicate that the plaintiff has admitted the suit property to be joint family property and that the defendants having no right, title and interest over the suit land are liable to give vacant possession of the suit land. Learned lower appellate court reversed the judgment and decree of the learned trial court observing that in view of the discrepancy of boundaries of ‘A’ schedule property vis-a-vis the registered sale deed (Ext.-3), it is not possible to hold that ‘A’ schedule property was acquired by Ext.-3 and the same is the plaintiff’s exclusive property and that ‘B’ schedule property is part of ‘A’ schedule property. 8. The Second Appeal is admitted on the following substantial questions of law: (i) Whether the learned appellate court without giving specific finding that the suit ‘B’ land cannot be identified as per description given by the plaintiff in the plaint schedule can dismiss the suit on the ground of discrepancy of boundary which is not an inexorable principle of law? (ii) Whether the findings of the learned appellate court that the schedule ‘A’ land does not tally with the Ext.3 is correct when plaintiff and defendants admitted that schedule ‘A’ is purchased land but defendants claim it is joint family properties? (iii) Whether the defendants having admitted the title of the plaintiff in the compromise petition Ext.9 are estopped from challenging the title of the plaintiff? 9. The question Nos. (i) and (ii) are on the finding of the learned lower appellate court that the suit land is not sufficiently described in the plaint so as to identify it. (iii) Whether the defendants having admitted the title of the plaintiff in the compromise petition Ext.9 are estopped from challenging the title of the plaintiff? 9. The question Nos. (i) and (ii) are on the finding of the learned lower appellate court that the suit land is not sufficiently described in the plaint so as to identify it. Order 7 Rule 3, C.P.C. requires that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. The rule further lays down that in case such property can be identified by boundaries or survey particulars, the plaint shall specify such boundaries or particulars. Learned counsel for the Appellant has argued that in the absence of pleadings in the W.S. that the suit properties are not identifiable, the learned lower appellate court has no jurisdiction to make out a third case by observing that the suit properties are not sufficiently described in the plaint. But this contention is not correct. In paragraph 5 of their W.S., D-1 to D-3 have clearly averred that the descriptions of suit property as given in the plaint along with the boundaries are not correct. Be that as it may, the plaint itself must disclose that the immovable property which is subject matter of the suit has been described in a manner which is sufficient to identify it. Therefore, the Court can examine whether the suit property has been described sufficiently for proper identification thereof. To ascertain this, the Court has to look to the plaint and no other papers except those are made part of the plaint. 10. In the suit on hand, the plaint averment is that the plaint Schedule ‘A’ property is the suit property, that the land shown in plaint Schedule ‘A’ was purchased by him vide Registered Sale Deed dated 28.9.1973 (Ext.3) and that after acquisition of the land the plaintiff constructed a house on a portion thereof and rest portion is being used as thrashing floor, cattle shed, etc. It is also the specific case of the plaintiff that in a proceeding under Section 145 Cr. P.C. before the Executive Magistrate, Jeypore the defendants entered into a compromise with the plaintiff and a joint compromise petition was filed wherein the defendants admitted that plaintiff is the absolute owner of plaint Schedule ‘A’ property. It is also the specific case of the plaintiff that in a proceeding under Section 145 Cr. P.C. before the Executive Magistrate, Jeypore the defendants entered into a compromise with the plaintiff and a joint compromise petition was filed wherein the defendants admitted that plaintiff is the absolute owner of plaint Schedule ‘A’ property. However, the plaintiff has prayed for declaration of his title in respect of the property shown in Schedule ‘B’ of the plaint which is claimed to be part of plaint Schedule ‘A’ property. 11. Learned lower appellate court after thorough analysis of the evidence and the pleadings has concluded that the boundary description given in the plaint in respect of Schedule ‘A’ property does not tally with the description of the property given in the sale deed dated 28.9.1973 (Ext.3) and it is not established that plaint Schedule ‘A’ land was purchased under the said sale deed. The learned lower appellate court has further held that the description of the plaint. Schedule ‘B’ properties is also insufficient for identification and it is not shown that plaint Schedule ‘B’ property is part of plaint Schedule ‘A’ property as claimed by the plaintiff. Learned lower appellate court has further observed that the descriptions of different items of plaint Schedule ‘B’ are imaginary and not supported by any document. Therefore, solely on the ground of improper identification of the suit property learned lower court has reversed the judgment and decree of the learned trial court and dismissed the suit. 12. It is not the case of the appellant that the findings of the learned lower appellate court on the improper and insufficient description of the suit property is perverse. This Court has carefully gone through the pleadings and evidence and found that the findings of the learned lower court on the description of the suit property are justified. Once the court is satisfied that the description of the suit property is not sufficient for proper identification of the suit land, it can dismiss the suit only on that ground. In Bandhu Das and Another vs. Uttam Charan Pattanaik, AIR 2007 Orissa 24, this Court has held that for non-description or insufficient identification of the suit land the suit is not maintainable. 13. It is true that defendants do not dispute that the purchase of the land under the sale deed (Ext.3) is in the name of the plaintiff. In Bandhu Das and Another vs. Uttam Charan Pattanaik, AIR 2007 Orissa 24, this Court has held that for non-description or insufficient identification of the suit land the suit is not maintainable. 13. It is true that defendants do not dispute that the purchase of the land under the sale deed (Ext.3) is in the name of the plaintiff. But there is no admission in the W.S. that the land shown in plaint Schedule ‘A’ is the land purchased under Ext.3. It is also not admitted by the defendants that items in plaint Schedule ‘B’ are part and parcel of plaint Schedule ‘A’ property. Therefore, it cannot be said that the defendants admit plaint Schedule ‘A’ land to have been purchased by the plaintiff under Ext.3. So, both the questions are answered against the appellant. 14. Question No. (iii) relates to the compromise petition (Ext.9) filed before the learned Executive Magistrate, Jeypore in a proceeding under Section 145 Cr. P.C. registered as Misc. Case No. 38 of 1987. Learned counsel for the appellant submits that so far as suit property (Plaint Schedule ‘A’ property) is concerned, the defendants, in a compromise petition marked Ext.9, have admitted the plaintiff’s title therein. Therefore, it is submitted, they are now estopped from challenging the plaintiff’s title in the suit property. Ext.9 reflects that the first party (Defendant No.1 in the suit) admitted in the compromise petition that sub-plot Nos. 2, 4, 6, 10, 11, 12, 13 and 19 of Plot No. 536 (as shown in a sketch map (Ext.12) annexed to the compromise petition) to have been given by Biswanath Pradhan to the second party (plaintiff in the suit) and the rest of the sub-plots as shown in the sketch map (Ext.12) are the self-acquired properties of the second party (the plaintiff). The compromise petition further reveals that said Biswanath Pradhan is none other than the plaintiff’s father. Thus, it implies that the property covered under the compromise petition is partly purchased by the plaintiff and partly given to the plaintiff by his own father. Therefore, it cannot be presumed that the property covered under the compromise petition is the same property which the plaintiff claims to have purchased under Ext.3. Thus, it implies that the property covered under the compromise petition is partly purchased by the plaintiff and partly given to the plaintiff by his own father. Therefore, it cannot be presumed that the property covered under the compromise petition is the same property which the plaintiff claims to have purchased under Ext.3. Since it is claimed that the suit land shown in plaint Schedule ‘A’ is a piece of land purchased by the plaintiff under Ext.3, it cannot be said that the property covered under the compromise petition (Ext.9) is the suit property, inasmuch as it includes some landed property the plaintiff has acquired from his own father. Therefore, even if the compromise petition is accepted to have contained defendants’ admission of plaintiff’s absolute title in respect of the property shown in the sketch map (Ext.12), which forms part of the compromise petition, that admission cannot be said to be in respect of the property shown in Ext.A. 15. Since the learned counsel for the appellant places strong reliance on the compromise petition some observations about the comprise may be made at this stage. 16. A perusal of the plaint averments, particularly made in paragraphs 4, 5 and 6, make it clear that the plaintiff has filed the suit basing on the compromise petition dated 29.09.1988 marked as Ext.-9. While describing the suit land he has made clear averment that the suit property is purchased by him under sale deed dated 28.09.1973. But, on perusal of the compromise petition it does not reveal that Plot No. 536, which is subject matter of the compromise, was purchased by him under aforestated sale deed. 17. The entire record of the criminal proceeding is available for perusal. It reflects that on 29.09.1988 the compromise petition was filed. On 26.10.1988 the compromise petition was accepted and the criminal proceeding was dropped. Order dated 26.10.1988 reflects that the learned Executive Magistrate perused the compromise petition, heard the parties and, observing that the land dispute had been settled by the parties amicably, dropped the proceeding. The compromise petition is written in English language. Plaintiff and defendant No.1 were parties to that proceeding. But, all the defendants are signatories to the compromise petition. The parties to the proceeding had engaged advocates. But none of the advocates appear to have signed on the compromise petition. The compromise petition is written in English language. Plaintiff and defendant No.1 were parties to that proceeding. But, all the defendants are signatories to the compromise petition. The parties to the proceeding had engaged advocates. But none of the advocates appear to have signed on the compromise petition. Order dated 16.01.1988 does not reflect that learned Executive Magistrate had heard the learned advocates of the parties. Nor does it reveal that the contents of the compromise petition were read over and explained to the parties in Oriya. There is no certificate appended to the compromise petition to the effect that the contents thereof were read over and explained to the parties and they ascribed their signatures/L.T.Is. after understanding the contents thereof. D-4 and D-5 have put L.T.Is. but their L.T.Is. have not been identified by any one. Out of the three defendants, who have put their signatures, D-3 was then a minor. No one has signed on behalf of the minor as his guardian. Learned Executive Magistrate has not recorded in his order that the non-parties, who were signatories to the compromise petition, were also present before him and he heard them to ascertain that the compromise was voluntary. Therefore, this compromise petition is a doubtful document. D-4 and D-5 in the written statement have stated that the compromise petition is behind their back and they were not aware of the contents thereof and they have not put their L.T.Is. in any compromise petition. D-1 to D-3 have also pleaded that the compromise petition is a fraudulent and created document. The compromise petition has been exhibited with objection. 18. The parties admit to the extent that in the year 1962 the ancestral agricultural property of the joint family of late Biswanath Pradhan was partitioned vide Registered Partition Deed (Ext.-4). Ext.-4 reflects that only agricultural lands were partitioned. The plaintiff has not specifically pleaded that the house and homestead properties were also partitioned by metes and bounds. It is simply pleaded that the parties are separate in mess and property. The suit land appears to be house and homestead properties. The real dispute is in respect of plaint Schedule ‘B’ properties which appertains to Plot No. 536. The compromise petition (Ext.-9) which is relied on by the plaintiff reflects that many of the sub-plots carved out from Plot No.536 were given to the plaintiff by Biswanath Pradhan, who is plaintiff’s father. The real dispute is in respect of plaint Schedule ‘B’ properties which appertains to Plot No. 536. The compromise petition (Ext.-9) which is relied on by the plaintiff reflects that many of the sub-plots carved out from Plot No.536 were given to the plaintiff by Biswanath Pradhan, who is plaintiff’s father. Ext.-12, which bears detailed description of these sub-plots, reflects that Plot No. 536 is house and homestead property. If plaintiff’s father had given some portions of plot No. 536 to the plaintiff, then there can be a reasonable presumption that the land appertaining to Plot No. 536 is a part of the joint family homestead. In Ext.-9 it is not explained as to under what circumstances his father had given some portions of Plot No. 536 to the plaintiff. But there is no registered instrument to that effect. In the compromise petition the defendants are claimed to have admitted the plaintiff’s title in respect of the entire of Plot No. 536. D-1 to D-3 being coparceners in respect of Plot No. 536, such admission amounts to relinquishment of their interest in that property. Therefore, the compromise petition should have been registered. The compromise petition being not a part of any compromise decree passed by a civil court, plaintiff’s title in Plot No. 536 based on this compromise cannot be declared. Probably for this reason the plaintiff has not made a positive averment in his plaint that he wants declaration of his title in respect of the plaint schedule ‘A’ land on the basis of this compromise petition. Instead, he has made clumsy averments in the plaint taking the stand that plaint schedule ‘A’ property was acquired by him under the sale deed Ext.-3. In addition to that, in the absence of any averment that Plot No. 536 was earlier partitioned by metes and bounds, the plaintiff cannot maintain a suit for declaration of his title in respect of any portion thereof. Because, in Ext.-9 plaintiff admits that his father had title therein. 19. Under such circumstances, it cannot be said that the defendants have admitted the plaintiff’s title in respect of the property covered under Ext.9 read with Ext.12. Therefore, the question of estoppel operating against the defendants challenging plaintiff’s title over the suit land does not arise. Thus, the Question No. (iii) is also answered against the plaintiff. 20. 19. Under such circumstances, it cannot be said that the defendants have admitted the plaintiff’s title in respect of the property covered under Ext.9 read with Ext.12. Therefore, the question of estoppel operating against the defendants challenging plaintiff’s title over the suit land does not arise. Thus, the Question No. (iii) is also answered against the plaintiff. 20. In view of the discussion made above it is held that this Second Appeal does not involve any substantial question of law. In the result, the Second Appeal is dismissed on contest with cost. Judgment and decree of the learned lower appellate court are confirmed. Before parting with, it may be stated for the purpose of clarification that all observations recorded by the learned courts below as well as this Court on different issues framed in the suit would not operate as res judicata as between the parties, if any future litigation arises between them in respect of the suit properties.