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2015 DIGILAW 527 (ORI)

Rebati Patra v. Bhikari Charan Patra

2015-09-08

D.DASH

body2015
JUDGMENT 1.The above noted two appeals are directed against the common judgment followed by decree passed by the learned Additional District Judge, Bhubaneswar in Title Appeal No.7/14 of 1998/89 and Title Appeal No.3/11/20/17 of 98/97/94/89 The plaintiffs being aggrieved by the judgment and decree dated 27.02.1989 and 14.03.1989 respectively passed by the learned Munsif, Bhubaneswar in O.S. No.209 of 19866-1 decreeing their suit in part by recording a finding that the plaintiff no.2 is not the son of late Rama Chandra Patra had fled Title Appeal No.7/14 of 1998/89 in the lower appellate Court. Defendants being aggrieved by the same judgment and decree passed in the said suit granting the relief of permanent injunction to the plaintiff no.1 and restraining the defendants from interfering with her possession over the suit land had filed Title Appeal No.3/11/20/17 of 98/97/89.Thus the former appeal before the lower appellate Court was at the instance of the plaintiffs essentially being aggrieved by the finding against the sonship of plaintiff no.2 that he is not the son of Rama Chandra Patra and the latter one was at the behest of the defendants calling in question the grant of relief of permanent injunction to the plaintiff no.1 declaring her status as wife of Rama Chandra Patra and restraining them from interfering with her peaceful possession so far as the suit land is concerned. 2.The lower appellate Court by the common judgment allowed the appeal filed by the defendants rendering a finding that the plaintiff no.1 is not the wife of Rama Chandra holding contrary to that of the trial Court and thereby has held her to be disentitled to the relief of permanent injunction as granted by the trial Court. By the said judgment, the lower appellate Court also dismissed the appeal carried by the plaintiffs challenging the finding of the trial Court as regards the status of plaintiff no.2 as the son of Rama Chandra Patra by affirming the finding of the trial Court in that regard against the plaintiff no.2. By the said judgment, the lower appellate Court also dismissed the appeal carried by the plaintiffs challenging the finding of the trial Court as regards the status of plaintiff no.2 as the son of Rama Chandra Patra by affirming the finding of the trial Court in that regard against the plaintiff no.2. Therefore, the unsuccessful plaintiffs as the appellants have filed these two appeals before this Court challenging by one; the concurrent finding of the Courts below that plaintiff no.2 is not the son of Rama Chandra Patra and the other challenging the reversing finding of the lower appellate Court against the status of plaintiff no.1 as the wife of Rama Chandra Patra and holding her to be disentitled to the relief claimed in the suit. 3.For the sake of convenience, in order to in bring clarity and avoid confusion, the parties hereafter have been referred to as they have been arraigned in the Courts below. 4.The case of the plaintiffs is that plaintiff no.1 is the legally married wife of Rama Chandra Patra and plaintiff no.2 is the son of Rama Chandra Patra born through plaintiff no.1. The suit was filed by the plaintiff no.1 for self and on behalf of plaintiff no. 2, the minor being represented through plaintiff no.1 against the defendants. It may be stated here that during the pendency of the suit, plaintiff no.2 having attained majority having opted to prosecute the suit on his own, he has done so. It is stated that Rama Chandra died on 2.2.86 leaving behind the plaintiffs as his legal heirs i.e. widow and son and they succeeded to his property including the suit land. Rama Chandra Patra exclusively possessed the suit land and was paying the rent. It has been so recorded in the record of rights in the consolidation operation. As the legal heirs of Rama Chandra Patra, the plaintiffs claim to be in possession of the suit land as its rightful owners. The defendants have their land adjoining the suit land and as such are the adjoining tenants. During the lifetime of Rama Chandra Patra, they had approached him to sale the suit land but he had denied. After the death of Rama Chandra Patra, they also approached the plaintiffs to sale the suit land to them which was also not agreed to. During the lifetime of Rama Chandra Patra, they had approached him to sale the suit land but he had denied. After the death of Rama Chandra Patra, they also approached the plaintiffs to sale the suit land to them which was also not agreed to. So it is stated that bearing grudge in view of such refusal of the plaintiffs and their predecessor-in-interest Rama Chandra Patra when the defendants failed in their attempt and lost all their hope of acquiring the suit land legally, finding an opportunate moment after the death of Rama Chandra Patra when the plaintiff no.1 became widow and when plaintiff no.2 was at the state of minority, began to create disturbance over the peaceful enjoyment and possession of the suit land by the plaintiffs in order to grab the suit land. It is stated that on 31.5.86 they forcible cut and removed the paddy sheives from the portion of the suit land and that had led to the initiation of criminal case. As the threat persisted, the plaintiffs had to file the suit. 5.The defendants contested the suit. Besides challenging the maintainability of the suit for lack of case of action, they have gone to traverse the plaint averments at the outset in denying the status of the plaintiff no.1 as claimed to be the wife of Rama Chandra Patra and that of the plaintiff no.2 as the son of Rama Chandra Patra. It is their specific case that Rama Chandra Patra died as a bachelor. Plaintiff no.1 is said to be a spinster hailing from village Madhupur whereas plaintiff no.2 is said to be son of one Netra Nanda Jena of that village. It is stated that Rama Chandra Patra had a brother named Krushna Chandra Patra and Rama Chandra Patra died on 21.2.1986 when Krushna Chandra Patra was alive. Defendant No. 1 claims to be the grandson of Krushna Chandra Patra whereas defendant nos. 2 and 3 are the sons of Balaram Patra. It is their case that Krushna Chandra Patra and Balaram Patra were living jointly and Rama Chandra Patra died while in such jointness with Krushna Chandra Patra. So, after the death of Rama Chandra Patra, the defendants claim to have succeeded to the interest of Rama Chandra over the properties as survivors. It is their case that Krushna Chandra Patra and Balaram Patra were living jointly and Rama Chandra Patra died while in such jointness with Krushna Chandra Patra. So, after the death of Rama Chandra Patra, the defendants claim to have succeeded to the interest of Rama Chandra over the properties as survivors. They assert that Rama Chandra Patra and Krushna Chandra Patra had never separated in mess and estate during their lifetime and Rama Chandra Patra was never in possession of properties exclusively after so called partition. Accordingly, the Consolidation Authority had recorded the agricultural land separately in the name of two brothers simply to the extent of half share and that is said to have been done with an intention to ensure better cultivation and avoid future fragmentation. The said property though was allotted with separate Chakas in the name of Rama Chandra Patra, it is stated that said properties were never in his separate possession. They say that Rama Chandra Patra was a monk and had dissociated himself from worldly affairs, leading a life as such. The defendants along with Krushna Chandra claim to be in direct management and enjoyment of the suit properties and therefore, even after the death of Rama Chandra Patra, they were continuing to be in possession of the suit land as of their right having title and interest by paying land revenue to the State. Thus, the defendants vehemently challenge the right, title, interest and possession of both the plaintiffs so far as the suit land is concerned. With all these pleadings they prayed to non-suit the plaintiffs. 6.The trial Court on such rival pleadings framed in total eight issues. Rightly taking up issue no.3 at the first for decision as it concerns with the status of plaintiff no.1 as claimed by her to be the wife of Rama Chandra Patra with the denial by the defendants, upon analysis of evidence and their assessment, it has rendered a finding that she is the wife of Rama Chandra Patra. Next taking up issue no.4 for decision which concerns with the status of plaintiff no.2 as claimed by him being the son of Rama Chandra Patra and vehemently denied by the defendants, the trial Court has rendered the finding on examination of the evidence on record against the plaintiff no.2 holding him to be not the son of Rama Chandra Patra. Thereafter proceeding to issue no.5 having gone through the evidence both oral and documentary, it has been held in clear terms that there was a prior partition between Rama Chandra Patra and his brother Krushna Chandra Patra and the suit land had fallen to the share of Rrama Chandra Patra who was the exclusive owner in possession of the same. Thereafter, going to answer issue no. 6, practically basing upon the finding on status in favour of plaintiff no.1 under issue no.3, the answer has been rendered that plaintiff no.1 has the right, title and interest over the suit land. Thereafter, on the other crucial issue i.e. issue no.7 as regards possession of the suit land, the trial Court has answered the same in favour of the plaintiff no.1 and for the same it has also derived some support from the findings rendered on issue nos.3, 5 and 6.The other issues thus having been accordingly answered, the suit was decreed in part granting the relief of permanent injunction to the plaintiff no.1 by restraining the defendants from interfering with her peaceful enjoyment and possession of the suit land. 7.The lower appellate Court having heard both the appeals, one filed by the plaintiffs challenging the finding on issue no.4 against the status of plaintiff no.2 being not the son of Rama Chandra Patra disentitling him to the reliefs along with plaintiff no.1 and the other one at the instance of the defendants calling in question the grant of relief of permanent injunction to the plaintiff no.1 on the basis of the findings on issue nos. 3,4,5,6 and 7 has gone to finally non-suit both the plaintiffs holding them to be in no way connected with Rama Chandra Patra, negating their claim as the wife and son and as such having no right over the suit land to maintain the suit. 8.Therefore, as already stated these two appeals are now at the behest of the unsuccessful plaintiffs against the judgment and decree passed by the lower appellate Court non-suiting both of them and holding them as disentitled to the relief claimed therein. 8.Therefore, as already stated these two appeals are now at the behest of the unsuccessful plaintiffs against the judgment and decree passed by the lower appellate Court non-suiting both of them and holding them as disentitled to the relief claimed therein. The appeals have been admitted on the following substantial law: “(i)Whether the lower appellate Court was correct in insisting upon the proof of ceremonies of the marriage which took place 45 years back and not giving the presumption arising out of their living together as husband and wife for about 40 years or more ? (ii)Whether the Courts below committed error of law in not considering the materials on record exhibited by the plaintiff-appellants in support of their claim? 9.Learned counsel for the appellants submits that the lower appellate Court has completely erred in law by overlooking the material evidence in upsetting finding of the trial Court in respect of issue no.3. According to him, overwhelming evidence being there on record that Rama Chandra Patra and plaintiff no.1 Rebati were living together as husband and wife for a quite long period, presumption of a valid marriage between the two ought to have been drawn and that having remained unrebutted by leading clear, cogent and acceptable evidence by the defendants, the finding in favour of said status of plaintiff no.1 as wife of Rama Chandra Patra is the only has to be accorded. According to him, this aspect has been completely lost sight of the lower appellate Court and the approach of the lower appellate Court in the matter of examination of the sustainability of the said finding of the trial Court favouring the plaintiff no.1 is wholly erroneous having gone to insist upon the plaintiff no.1 to lead direct evidence as regards her marriage with Rama Chandra Patra by proving the necessary ceremonies through examination of barbar, priest and other persons present then by drawing adverse inference for their non-examination in finally holding that the marriage between two has not been established as also her claim of status as that of the legally married wife of Rama Chandra Patra remaining unestablished. Next going to challenge the concurrent finding of the Courts below against the status of plaintiff no.2 as claimed to be the son of Rama Chandra Patra, it is his submission that there being voluminous evidence on record that the plaintiff no.2 was residing with Rama Chandra Patra and Rebati under one roof as their son and that he was being treated as such by all concerned i.e. their family members, relations, neighbours as well as the general members of the society wherefrom they hail, the Courts below have faulted themselves in not answering the said issue in favour of the status of plaintiff no.2 as per his claim as that of the son of Rama Chandra Patra. He also contends that when the trial Court has found that the plaintiff no.2 was in possession of the suit property and that has not been disturbed by the lower appellate Court in clear terms, the same also comes to the aid of the plaintiffs to provide great support as one more piece of evidence for holding her status as the wife of Rama Chandra Para besides her entitlement to the relief as prayed for in the suit. For the purpose, he with great pain has gone to draw the attention of this Court to the evidence of the witnesses which are admissible in the light of the provision of Section 50 of the Evidence Act to prove the relationship besides the admission of the defendants that Rebati and Rama Chandra Patra were staying together. 10.Per contra, the learned counsel for the respondents supports the finding of the lower appellate Court on issue njo.3 contending that it has been so rendered by due and proper appreciation of the evidence on record. According to him, the finding of the lower appellate Court that plaintiff no.1 has failed to establish her status as wife of Rama Chandra Patra by leading clear, cogent and acceptable evidence is not liable to be interfered with. According to him, the finding of the lower appellate Court that plaintiff no.1 has failed to establish her status as wife of Rama Chandra Patra by leading clear, cogent and acceptable evidence is not liable to be interfered with. Next, he submits that there being no material on record to indicate that the concurrent finding of the Courts below against the status of plaintiff no.2 as the son of Rama Chandra Patra suffers from the vice of perversity i.e. either the Courts below have ignored the material evidence in saying so or that the Courts below have misread the evidence or misconstrued the same, said concurrent finding of fact is not at all to be disturbed. It is his further contention that in the suit for permanent injunction simpliciter, even if findings of status are rendered either in favour of both the plaintiffs or in favour of either of the one, finding of separation between Rama Chandra Patra and Krushna and finding of possession of the suit land by Krushna and thereafter either by plaintiff no. 1 or plaintiff no.2 cannot be so held simply on the basis of Consolidation of record of right. So, he contends that both the appeals are liable to be dismissed. 11.In order to answer the substantial questions of law while side by side addressing the rival submission, this Court feels it proper to first of all examine the sustainability of the finding of the lower appellate Court in reversal to the finding of the trial Court on issue no.3 concerning the status of plaintiff no.1 as the wife of Rama Chandra Patra. 12.The parties have led evidence on this score. The plaintiffs have examined four witnesses whereas the defendants have examined two. Over and above, the plaintiffs have proved the voter list of the year 1983 and 1988,Exts. 3 and 4 respectively.It is the evidence of plaintiff no.1 examined as P.W. 3 that her husband Rama Chandra Patra died about two and half years prior to her examination. She has stated to have married Rama Chandra Patra 45 years prior to the deposition in Court when she was aged about 18 to 19 years. Her evidence is also to the effect that she was living in the suit village since the time of her marriage. She has stated to have married Rama Chandra Patra 45 years prior to the deposition in Court when she was aged about 18 to 19 years. Her evidence is also to the effect that she was living in the suit village since the time of her marriage. P.W. 1 examined on her behalf has also stated that he is none other than the brother-in-law of the brother of plaintiff no.1 Similar is the evidence of P.W. 2. Thus they have all stated in the same vein at least to the extent that marriage having taken place around 30 years before, Rebati and Rama Chandra Patra were staying as husband and wife together under one roof and they have treated them as such. The position of law is settled that if a man and woman reside together as husband and wife under one roof for fairly a long period, in view of the challenge to the factum of marriage at such a belated stage, it is unjust to ask the person pleading the marriage to prove the same by leading direct evidence as regards the performance of ceremonies etc. It is the well settled law that in that event a strong presumption arise in favour of the wedlock where the parties have lived together for a long spell as husband and wife. The presumption of course rebuttable and in that situation a heavy burden lies on the person who seeks to deprive the relationship of legal origin. In the words of Their Lordships-Law leans in favour of legitimacy and frowns upon bastardly. Reliance is placed on the decision of the Apex Court in case of Badri Prasad vs. Deputy Director, Consolidation and others: AIR 1978 SC 1557 .Therefore, the plaintiffs having led evidence when have proved the facts as regards long stay of Rama Chandra Patra and Rebati together as husband and wife under one roof with their acceptance as such, the burden lies upon the defendants to disprove such relationship. This approach is found to have not been made by lower appellate Court. As regards the stay as husband and wife certainly the party favouring the relationship may say so but important fact remains that such direct evidence is not expected to come from other witnesses. This approach is found to have not been made by lower appellate Court. As regards the stay as husband and wife certainly the party favouring the relationship may say so but important fact remains that such direct evidence is not expected to come from other witnesses. What they can say is as to how they were considering in their eyes as regards their said stay and what they were viewing from all other surrounding and attending circumstances, such as dealing, conduct etc. It is seen that the defendants have taken a positive stand that Rama Chandra Patra had accepted the monkship and was residing in a Math. But the evidence on record reveals that the Math is a private one of Rama Chandra Patra himself remaining just as a ‘tungi’ at a distance of 50 to 100 meters from his residential house. The plaintiffs have led evidence by examining P.W.1 about such relationship and their stay as such besides plaintiff no.1 having so stated about her relationship with Rama Chandra as his wife. The defendant nol.1 himself examined as D.W. 1 has so stated and his further evidence on oath is that Rebati was residing with Rama Chandra Patra in that very Math. D.W. 2 being the nephew of Rama Chandra Patra has stated that Rama Chandra Patra was residing in his gharabari by constructing a ‘tungi’ and he used to stay with Rebati in that tungi. He of course has stated the duration of the stay 10 to 11` years. Be that as it may, no explanation whatsoever is forthcoming from the lips of these witnesses as to what was the occasion for Rebati plaintiff no.1 to stay like that and what for it was so. Thus the evidence on record are sufficient in not only establishing the long stay of Rama Chandra and Rebati together under one roof and the acceptance of their relationship as husband and wife which goes unexplained in any way. The documentary evidence such as the voter lists, Exts.3 and 4 provide support to such relationship. The death blow to the case of the defendants has fallen which has turned to be a lotus gift for the plaintiff no.2 when the defendants themselves have tendered in evidence, exhibited as Ext. B. That is a sale deed executed by Rebati in favour of another person. The death blow to the case of the defendants has fallen which has turned to be a lotus gift for the plaintiff no.2 when the defendants themselves have tendered in evidence, exhibited as Ext. B. That is a sale deed executed by Rebati in favour of another person. This document shows that Rebati had described therein way back in the year 1987 as the wife of Rama Chandra Patra. The defendants having proved this document from their side which has been exhibited on their pressing cannot wriggle out of the above stated narration in that staying that the same is not binding on them. The lower appellate Court has totally ignored such important evidence besides winking at the settled position of law by going to place the burden of proof upon the plaintiffs to establish the factum of marriage by leading direct evidence concerning the performance of the required ceremonies. Therefore, this Court is of the. considered view that the finding of the lower appellate Court holding Rebati to be not the wife of Rama Chandra Patra by reversing the finding of the trial Court on that score suffers from the vice of perversity and as such is untenable. 13.Now coming to the finding on issue no.4, as regards the status of plaintiff no.2 as the adopted son of Rama Chandra Patra, it is seen that there remains concurrent finding of fact by the Courts below against the said status. It has come out in the evidence that plaintiff no.2 was none other than Rebati’s brother’s son. The pleading in plaint is silent as to whether he is natural son of Rama Chandra Patra through Rebati or is their adopted son. This cannot be so lightly brushed aside to have been made unconsciously as it is found to be the foundation and a different way of connection. Rebati is one of the plaintiffs and representing that plaintiff no.2 as his next friend stating to have no such interest adverse to him. There was absolutely no reason of suppress the truth and when the said status has been denied by the defendants in the written statement, no such steps has also been taken to get it properly described. A stand has come out that plaintiff no.2 is the adopted son of Rama Chandra Patra and Rebati. There was absolutely no reason of suppress the truth and when the said status has been denied by the defendants in the written statement, no such steps has also been taken to get it properly described. A stand has come out that plaintiff no.2 is the adopted son of Rama Chandra Patra and Rebati. Further more interesting is that plaintiff no.2 in his evidence when is claiming to be the natural born son of Rama Chandra Patra through Rebati, the plaintiff no.1 Rebati as deposing on oath that he was the adopted son. More importantly, as regards performance of giving and taking ceremonies, it is been neither been pleaded nor placed in evidence by leading direct evidence when it is not a case of an ancient adoption, when the adoptive mother is very much alive. So simply relying on the School Leaving Certificate Ext.5 and admit card for HSC examination Ext. 6, it cannot be held that the factum of adoption stands proved thereby. Law on this subject is very much settled that the burden of proof heavily lies on the person who claims succession of the property by adoption and he must discharge that burden resting on his shoulder by giving proof as regards the factum of adoption by proving the giving and taking ceremony and also satisfying the Court as regards its validity in compliance to the provisions of law. The natural father of plaintiff no.2 being alive has also not come to the witness box to depose. Thereby one piece of the best evidence has been withheld. P.W.1 though at one stage deposed that, at the other stage he goes on to say that it is Rebati who had adopted the plaintiff no.2. The evidence on the score is wholly unsatisfactorily leading to say that the burden of proof on that score resting of the plaintiffs has not been discharged which has been rightly held by both the Courts. Therefore, this Court is unable to find out any such perversity to have prevailed upon in rendering such concurrent finding calling for interference. 14.The finding of fact remains that the suit land had fallen to the share of Rama Chandra Patra and it was so rightly recorded in the record of right published on closure of the Consolidation operation. The Court below have churned with evidence on record for the answer to be rendered. 14.The finding of fact remains that the suit land had fallen to the share of Rama Chandra Patra and it was so rightly recorded in the record of right published on closure of the Consolidation operation. The Court below have churned with evidence on record for the answer to be rendered. With such finding the trial Court has proceeded to further examine the evidence in finding the possession of the suit of plaintiff no.1 but that has been reversed by the lower appellate Court saying that evidence on record on the question of plaintiff’s possession after the death of Rama Chandra Patra do not appear to be cogent and convincing. It is the settled position of law that a finding of fact rendered by the trial Court is not so lightly to be disturbed by the superior Court simply on such score that those do not appear to be clear and convincing to it, the reason being that the trial Court had the occasion to record the evidence by examining the witnesses and mark their demeanour all through as also other features. The feature now appears in the case that on the basis of satisfactory evidence the finding has come that Rama Chandra Patra was in possession of the suit land exclusively till his death having got it in his share. This Court has already restored the finding of the trial Court that plaintiff no.1 is the wife of Rama Chandra Patra and as such has the right to possess the suit land. In that view of the matter, in my considered view the burden of proof was upon the defendants to establish by leading, cogent and acceptable evidence that soon after the death of Rama Chandra Patra, they began to possess the suit land which had not gone to the hands of plaintiff no.1 from that date onwards. The lower appellate Court appears to have been swayed away to give such finding negating the finding of the trial Court as regards the plaintiff no.1’s possession over the suit land simply because it is held plaintiff no.1 to be not the wife of Rama Chandra Patra and as such having no right over the property. The lower appellate Court appears to have been swayed away to give such finding negating the finding of the trial Court as regards the plaintiff no.1’s possession over the suit land simply because it is held plaintiff no.1 to be not the wife of Rama Chandra Patra and as such having no right over the property. Therefore, here in this suit for a permanent injunction, the defendants in the facts and circumstances of the case, having not established the above facts by satisfactory evidence, this Court is left with no option but to decree the suit of the plaintiff no.1 holding her to be entitled to the relief of permanent injunction against the defendants restraining them from interfering with her possession in respect of the suit land in any manner. The aforesaid discussions and reasons provide necessary answers to the substantial question of law framed in this appeal. 15.In the wake of aforesaid, the judgment and decree passed by the trial Court in O.S. No.209 of 1986-I are hereby restored affirming all the finding and that of the lower appellate Court are set aside. The suit filed by the plaintiffs is thus decreed in part granting the relief of permanent injunction in favour of the plaintiff no.1 in restraining the defendants in interfering in any way with the peaceful enjoyment and possession of the suit land, holding the plaintiff no.2 to be disentitled to such reliefs in view of the finding going against the status as claimed and also on other issues. 16.The aforementioned appeals stand accordingly disposed of and in the peculiar facts and circumstances of the case without cost. Appeals disposed of.