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2015 DIGILAW 494 (ORI)

Pratap Chandra Behera v. Sarat Chandra Behera

2015-08-20

K.R.MOHAPATRA

body2015
JUDGMENT K.R. MOHAPATRA, J. - This Appeal is filed assailing the judgment and decree dated 20.09.1986 and 04.10.1986 respectively passed by the learned District Judge, Mayurbhanj at Baripada in Title Appeal No.7 of 1983 confirming the judgment and decree dated 12.02.1983 and 25.02.1983 respectively passed by the learned Sub-ordinate Judge, Baripada in Title Suit No.93 of 1978-I. 2. Defendant Nos.2 and 3 are the appellants in this Appeal. The plaint case in short is that defendants are members of different branches of one Gadei Behera, their common ancestor. Gadei Behera had seven sons including Bhagirathi, Bidyadhar and Madan, who is the father of defendant No.1 and grandfather of defendant Nos. 2 and 3. The family of Gadei Behera had vast extent of ancestral property in Mouza Dantiamuhan, Karanjia and Kundhei as per the Schedule ‘C’, ‘D’ and ‘E’ of the plaint. After death of Bidyadhara and Bhagirathi, the branch of Madan began to live separately in separate mess and cultivation. In the year 1960, there was a complete partition in the family. Prior to that, Madan, the father of defendant No.1, while living separately died in the year 1954. His branch got land in Schedule ‘B’ land (for short ‘the suit land’) and schedule ‘D’ in the family partition. Madan being dead, his only son Dolagobinda (defendant No.1) inherited the said property and became the rightful owner in possession over the same. While in possession due to legal necessity and improvement of the estate he sold the suit land to the plaintiff vide Registered Sale Deed dated 03.06.1970 for a consideration of Rs.5,000/- and delivered possession thereof. At the time of sale, the plaintiff was a minor being represented by his next friend and guardian, namely, Tarini Chandra Behera, who was his elder brother. Thus, the plaintiff possessed the suit land in his own right, title and interest. During current settlement, the defendants refused to give consent to record the suit land in the name of the plaintiff. As such, the record of right was published jointly in the names of the defendants with a note of possession of the plaintiff in the remarks column. Defendant No.1, the father of defendant Nos. 2 and 3, was the Karta of the family. As such, the record of right was published jointly in the names of the defendants with a note of possession of the plaintiff in the remarks column. Defendant No.1, the father of defendant Nos. 2 and 3, was the Karta of the family. In order to purchase more productive land at a moderate price as the suit land was inconveniently situated, defendant No.1 sold the same to the plaintiff to purchase land at Village Raikama. Accordingly, on the date the suit land was sold to the plaintiff, the defendant No.1 purchased land measuring M.1-24-10-12 Gandas for Rs.2,725/- from one Ratnakar Singh and M.0-9- 6-0 Gandas of land for Rs.680/- from one Askanda Palei, both of village Raikama. Subsequently, he also purchased M.0-5-12-12 Gandas of land for Rs.500/- on 15.07.1970 out of the consideration he received from sale of the suit land to the plaintiff. After purchase, the plaintiff got the land identified by Amin in the year 1971 in PFI Case No.224 of 1971. But defendant Nos. 1, 2, 4, 5, 17 and 22 made an unholy alliance and cut away the paddy crops raised by the plaintiff through his brother (next friend guardian) from a portion of the suit land on 19.11.1973. In the year 1974, the above named defendants again created disturbance in the peaceful possession of the plaintiff and tried to cut away the paddy. Thus the plaintiff initiated a proceeding under Section 145 of Cr.P.C. By order dated 27.02.1976, the Executive Magistrate directed the parties to establish their claim of title in a Civil Court and attached the suit land. Thus, the plaintiff filed the suit for declaration of his right, title and interest over ‘B’ schedule land (suit land), for releasing the same from attachment in his favour and to delete the names of defendants from the settlement record. In the alternative, the plaintiff also prayed for partition of the suit land and to allot the suit land to the share of his vendor (defendant No.1) in case it is held that Schedule ‘B’ land is a part and parcel of the joint family property. 3. Defendant Nos. 1, 2 and 3 filed their respective written statements denying the allegations in the plaint. Defendant Nos. 5 and 7 as well as 26 to 29 filed their separate written statements supporting the case of defendant Nos.1, 2 and 3. 3. Defendant Nos. 1, 2 and 3 filed their respective written statements denying the allegations in the plaint. Defendant Nos. 5 and 7 as well as 26 to 29 filed their separate written statements supporting the case of defendant Nos.1, 2 and 3. However, defendant No.4, 6 and 8 to 24 filed their joint written statement supporting the case of the plaintiff. The stand of defendant Nos. 1, 2 and 3 in their respective written statements are almost similar. It is their case that Madan, the father of defendant No.1, namely, Dolagobinda got ‘D’ schedule land in a family partition of the ancestral joint family property. Madan died while living jointly with his son-defendant No.1, grandsons (defendants 2 and 3) and sisters (defendants 26 to 29). On the death of Madan, there was disruption in the joint family and the properties including ‘B’ schedule land stood divided amongst co-sharers where the share of defendant No.1 was worked out to be little more than half Mana. Taking advantage of the dissention in the family, the plaintiff with one of his relatives made contact to defendant No.1 a month prior to the execution of the suit sale deed and poisoning the mind of defendant No.1 to the effect that his sisters, namely, defendants 26 to 29 had combined to lay claim over the suit land and persuaded him to sell the suit properties in order to deprive the sisters from getting any share. It was also contended that the plaintiff pursued the defendant No.1 that suitable lands with high-yielding capacity with lesser price were available in village Raikama. Believing the said words of the plaintiff, defendant No.1 executed the sale deed under the evil influence of the plaintiff and his associate, namely, one Gangadhar. They also contended that before execution of the sale deed, defendant No.1 was given cold drink with sedatives for which defendant No.1 dozed and brought under the complete control of the plaintiff. Neither the consideration money was paid to defendant No.1 at the time of sale or subsequently nor was the possession of the suit land was ever delivered to the plaintiff. The execution of the sale deed was the outcome of fraud, deception and undue influence. Thus, the same was not binding on them. Neither the consideration money was paid to defendant No.1 at the time of sale or subsequently nor was the possession of the suit land was ever delivered to the plaintiff. The execution of the sale deed was the outcome of fraud, deception and undue influence. Thus, the same was not binding on them. In addition to the above, defendants 2 and 3 contended in their written statement that defendant No.1 was never the Karta of the family and he had never taken care of the management of the household or properties at any point of time. There was no necessity of selling the suit land. The suit land was not identifiable. The defendants 2 and 3 further stated that they were in possession over the suit land all along and note of possession of the plaintiff in the settlement record was an outcome of undue influence of the Settlement Authorities by the plaintiff. Thus, they prayed for dismissal of the suit. Defendants 5, 7 and 26 to 29 filed their respective written statement reiterating the assertions and pleadings made by defendant Nos. 1 to 3 in their written statement. 4. Defendants 4, 6, and 8 to 24 filed their written statement supporting the case of the plaintiff contending that there was a complete partition among Madan and his brothers on 17.05.1938 through a deed of partition and ‘B’ schedule land fell to the share of late Madan. On his death, the defendant No.1 being the only son of said Madan, possessed the same in his own right, title and interest. He sold the land to the plaintiff in the year 1970 to purchase land of higher productivity at moderate price to sustain his family. In fact, defendant No.1 had purchased about 2 and half Manas of Jala Class-1 land and homestead at village Raikama from out of the consideration of the sale of the suit land to the plaintiff. The plaintiff was in possession of the suit land from the date of the purchase. Thus, they prayed that right, title, interest and possession over the suit land to be declared in favour of the plaintiff. 5. Taking into consideration the rival pleadings of the parties, learned Civil Judge framed as many as seven issues out of which findings in respect of Issue Nos. 3, 4 and 5 are relevant for the purpose of adjudication of this appeal. 5. Taking into consideration the rival pleadings of the parties, learned Civil Judge framed as many as seven issues out of which findings in respect of Issue Nos. 3, 4 and 5 are relevant for the purpose of adjudication of this appeal. For the sake convenience, learned Sub-Judge took Issue Nos.4 and 5 together for adjudication. On a threadbare discussion of the materials on record and point of law involved, learned Sub-Judge came to the categorical finding that Dolagobinda Behera (Defendant No.1) executed the sale deed (Ext.3) as Karta of the family voluntarily without any influence for the legal necessity and for the benefit of the estate. Thus, the same is binding on the defendants. 6. Issue No.3 relates to non-joinder of necessary parties. However, during course of argument, the same was not pressed. 7. While adjudicating Issue No.6 with reference to possession of the plaintiff over the suit land and correction of settlement record in his name learned Sub-Judge held that the plaintiff was in exclusive possession over the suit land by virtue of execution of the sale deed till it was attached under the provisions of Section 145, Cr.P.C. He further held that the sale deed under Ext.3 being held to be valid the plaintiff became the exclusive owner thereof having full right, title, interest and possession thereof. Thus, he directed to correct the ROR accordingly. 8. Being not satisfied, the defendants 2 and 3, namely, the present appellants preferred Title appeal No.7 of 1983 before the learned District Judge, Mayurbhanj at Baripada. Learned District Judge on consideration of the argument advanced before him and taking into consideration the pleadings and materials available on record dismissed the appeal and thereby confirmed the judgment and decree passed by the learned Sub-Judge, Baripada. 9. This appeal was admitted by order dated 12.10.1987 on the substantial question of law as per Ground Nos. 2, 3 and 4 of the appeal memo. The appellants in Ground No.2 contended that the decision of the Lower Appellate Court is vitiated under law as he has failed to exercise his jurisdiction in coming to his own independent finding on all the issues after appreciating the materials on record. 10. It is submitted that the learned Lower Appellate Court ought to have given his own independent finding on all the issues while adjudicating the appeal. 10. It is submitted that the learned Lower Appellate Court ought to have given his own independent finding on all the issues while adjudicating the appeal. With reference to the findings at paragraph 11, learned counsel submitted that the learned Lower Appellate Court refused to discuss the matter to avoid repetition. He drew attention to the following lines of paragraph-16. “… It is idle for me to discuss the matter only by way of repetition, as the learned Sub-Judge has thoroughly discussed this aspect and I have carefully gone through the evidence on record and the issues 4 and 5. I have nothing to differ from the finding given by the learned Sub-Judge on the basis of the analysis of the case both on facts and point of law.” 11. On a perusal of the impugned judgment passed by the learned Lower Appellate Court, it appears that the learned Lower Appellate Court has taken into consideration all the contentions raised by learned counsel for the appellants and on a threadbare discussion held that the defendants (appellants herein) have failed to prove that Madan died in the year 1961. It was also held that evidence of PWs and the case pleaded by the plaintiff has to be accepted holding that Madan died some time before 1956. While discussing the matter on merit, learned Lower Appellate Court held that in view of the finding that Madan died prior to 1956, defendants 26 to 29 who are his daughters have no interest in the suit property and they have no right over the same. Defendants 2 and 3 (appellants herein) alleged that one month prior to the date of execution of the sale deed (Ext.3), the plaintiff with the help of his henchmen poisoned the ears of defendant No.1 who was a simple rustic and was easily duped and fell easily to the trap of the plaintiff. To establish the alleged foul play of the plaintiff, the contesting defendants contended that defendant No.1 was given cold drinks for which he dozed and under the influence of intoxication, the plaintiff could manage to obtain signature on the sale deed under Ext.3. Learned Lower Appellate Court in paragraph 15 of the judgment has categorically held that there is absolutely no evidence to the effect that the sale deed was executed under undue influence and by practicing fraud. Learned Lower Appellate Court in paragraph 15 of the judgment has categorically held that there is absolutely no evidence to the effect that the sale deed was executed under undue influence and by practicing fraud. Thus, he held the plea of fraud and undue influence to be thoroughly misconceived. He further held that had that been so, the Sub- Registrar would have refused to register the documents when the same was presented by defendant No.1 before him. When the execution is admitted and there is nothing in Ext.3 about the mental condition of defendant No.1, the plea of defendants 2 and 3 should not be accepted. In the case of Santosh Hazari vs Purushottam Tiwari (Dead) By Lrs. reported in AIR 1967 SC 1124 which holds the field till date, Hon’ble Supreme Court held that the Appellate Court while agreeing with the view of the learned Trial Court on evidence need not reiterate or restate the effect of the evidence and the reasons given by the learned Trial Court. Expression of a general agreement to the reasons given by the learned Trial Court would suffice while agreeing with the findings of the learned Trial Court. In that view of the matter, the question of law raised by the appellants does not hold good. 12. Ground No.3 of the appeal memo relates to burden of proof of the year of death of Madan. It is the submissions of the appellants that the learned Lower Appellate Court committed an error of law in placing the onus wrongly on the defendants/appellants relating to the issue of date of death of Madan. True it is that the initial burden of proof always lies on the plaintiff to prove his own case. When he discharges the initial burden of proof of material facts, the onus shifts to defendants, who denied the same. In the case at hand, the plaintiff claims that Madan died in the year 1954. In order to establish the same, one Tarini Behera, a next friend and elder brother of the plaintiff was examined as PW-6 and Gopal Singh, a resident of village Dantimuhan was examined as PW-4, who had consistently deposed that Madan did not die in the year 1961 as alleged by the contesting defendants. In order to establish the same, one Tarini Behera, a next friend and elder brother of the plaintiff was examined as PW-6 and Gopal Singh, a resident of village Dantimuhan was examined as PW-4, who had consistently deposed that Madan did not die in the year 1961 as alleged by the contesting defendants. PW-4, who is an independent witness deposed that Madan died 35 years back prior to the date of his deposition which corresponds to the year 1947. The categorical statement of PW-4 and this was not disturbed in the cross-examination. Defendant No.1 in his deposition stated that he had applied for a copy of the register in the record room which contained the date of death of Madan, but the same was not available. Had it been so, he could have produced the counterfoil in support of his claim. On the other hand, Ext.4, a petition filed by defendant No.1 and his agnates in a levy case of the year 1975 disclosed that there was a partition effected 30 years back and it is the definite case of the defendants that due to the death of Madan, Dolagobinda was in exclusive possession of the suit land. Thus, apparently Madan died much prior to 1956. Thus, the plaintiff had discharged his initial burden of proving that Madan had died prior to 1956. Thus, onus shifts to the defendants who claimed that Madan died in the year 1961. Not a single document was filed by the defendants to prove that Madan had died in the year 1961. They heavily relied upon Ext.3, i.e., the sale deed in which it is stated that Madan died in the year 1961. In the sale deed, it is stated by defendant No.1 that Dolagobinda, the Vendor is in possession of the suit land since last 10 years, which is inconsistent to the statement made in Ext.4. Thus, both the Courts below did not place much reliance on the contents of Ext.3 to the effect that Madan died in the year 1961. It would not be out of context to mention here that the year of death of Madan is not of much relevance for defendants 2 and 3. However, it had significance for defendants 26 to 29, who are daughters of said Madan. But defendants 26 to 29 did not challenge the impugned judgment of the learned Lower Appellate Court. It would not be out of context to mention here that the year of death of Madan is not of much relevance for defendants 2 and 3. However, it had significance for defendants 26 to 29, who are daughters of said Madan. But defendants 26 to 29 did not challenge the impugned judgment of the learned Lower Appellate Court. Moreover, when both the Courts below have concurrently held Madan died prior to 1956 and the same being a concurrent finding of fact based upon some evidence, this Court refuses to interfere with the same. Learned Courts below have rightly placed the onus on the defendants to prove that Madan died prior to 1956 because the initial burden of proof was discharged by the plaintiff by proving the fact on oral and documentary evidence that Madan had died prior to 1956. Hence, this Court refuses to interfere with the concurrent finding of both the Courts below. 13. Ground No.4 raised by defendants relates to non-joinder of necessary parties. Appellants contend that when the plaintiff had alternatively prayed for partition and for adjustment of the land purchased by him (Schedule ‘B’) to be allotted to his Vendor (Defendant No.1), the cosharers ought to have been made parties. The said ground cannot be treated to be a substantial question of law; firstly for the reasons, Issue No.3 was relating to non-joinder of necessary parties which was not pressed by them at the time of hearing. Thus, the same is not available to be raised at the stage of appeal under Section 100, CPC. Moreover, all the recorded tenants in the settlement ROR have been made parties to the suit. As such, the question with regard to non-joinder of necessary parties cannot be treated to be a substantial question of law in this appeal. 14. In the result, the appeal fails and the same is accordingly dismissed, but in the circumstance no order as to costs. Appeal dismissed.