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2016 DIGILAW 1000 (ORI)

Mahadev Mohanta v. Sahadeb Mohanta

2016-11-01

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Rairangpur in T.A. No. 24/49 of 1997-92 confirming the judgment and decree passed by the learned Sub-Judge, Rairangpur in T.S. No. 75 of 1989. The appellants as the plaintiffs had filed the suit arraigning the respondents as the defendants for declaration of right, title and interest over the suit land. The suit having been dismissed as the unsuccessful plaintiffs who are father and son, they had carried first appeal under Section 96 of the Code of Civil Procedure. The appeal has also been dismissed; so they are now before this court with the second appeal under Section 100 of the Code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiffs’ case is that they are living together in joint mess and estate. Laxmiram Mohanta died leaving behind his two sons namely, Jitmohan Mohanta, the father of plaintiff no. 1 and grandfather of plaintiff no. 2 and Khetra Mohan Mohanta. The defendant no. 1 is the other son of Jitmohan; the defendant nos. 2 and 3 are the sisters of plaintiff no.1 and the defendant no. 4 is the son of Khetra Mohan. The defendant no. 5 is not related to the family and has been made party since the forcible note of possession of one plot out of the suit land stands in his favour and defendant no. 6 has come to be arraigned as such as a purchaser of little extent of land under one plot from the defendant no.4. It is stated that the ancestral properties of the parties in village Kana and Majhigaon stood recorded in the name of Jitmohan and Kehtra Mohan. Those have been recorded in the Hal settlement in the name of plaintiff and defendant nos. 1 to 4 which find described in schedule-C. It is stated that the defendant nos. 2 and 3 being sisters have expressly relinquished their share over the suit land. Defendant no. 1 had sold 01 mana and 4 gunthas of land out of Sabik plot nos. 4 and 9 under Sabik Khata no. 18 of village Kana to the plaintiff no. 2 by registered sale deed dated 11.8.75. 2 and 3 being sisters have expressly relinquished their share over the suit land. Defendant no. 1 had sold 01 mana and 4 gunthas of land out of Sabik plot nos. 4 and 9 under Sabik Khata no. 18 of village Kana to the plaintiff no. 2 by registered sale deed dated 11.8.75. The sale deed though was executed by Jitmohan, Sahadeb was a witness to it. The execution of the sale deed is said to have been made on payment of consideration to Sahadeb and that the sale is said to have been made after mutual discussion between Sahadev and Jitmohan. The plaintiffs further case is that the defendant no. 4 sold land out of his share measuring 12 gunthas 5 biswas and 16 gandas described in schedule-C and D of the plaint. Defendant no. 4 further sold land from his share measuring 10 gunthas, 2 biswas and 8 gandas from sabik plot no. 433 of Sabik Khata no. 18 by registered sale deed dated 1.3.76 to the plaintiff no. 1 which are included in schedule-C and D of the plaint. It is stated that accordingly, the defendant no. 4 sold his share of land measuring 9 gunthas and 1 Biswa out of Sabik plot no. 419 in Khata no. 18 by registered sale deed dated 6.5.83 to plaintiff no. 1 which finds included in schedule-C and D. It is stated that in this way, the defendant no. 4, the son of Khetramohan has sold his entire share. Sahadeb the brother of Jitmohan is also said to have sold land of his share to the plaintiffs. Thus it is claimed that the plaintiffs are the absolute owners in possession of the suit land. However, the name of the defendant nos. 1 and 4 stood recorded in the record of rights. In the settlement, the plaintiffs could not take timely step as they were remaining outside and therefore record remained like that and though the plaintiffs have been in peaceful possession of entire suit land, the same has not been so recognized. In view of said state in the ROR the plaintiffs approached the defendant nos. 1 and 4 and requested them to join in filing an application before the Tahasildar for recording the land accordingly. As that was refused, the suit had been filed. 4. The defendant nos. 1 and 4 filing the written statement contested the suit. In view of said state in the ROR the plaintiffs approached the defendant nos. 1 and 4 and requested them to join in filing an application before the Tahasildar for recording the land accordingly. As that was refused, the suit had been filed. 4. The defendant nos. 1 and 4 filing the written statement contested the suit. They denied the purchase of any land by defendant no. 6 out of schedule-C land. They also denied that there was neither any necessity to go for sale of the said land which belong to the joint family by registered sale deed dated 31.1.77, 1.3.76 and 6.5.83 without the consent of other coparceners. The sale deeds are said to have been created with a view to grab the land. It is stated that the land under Khata No. 18 of village Kana had never been partitioned between Jitmohan and Khetra Mohan as also between Jitmohan and Babulal, son of Khetra Mohan and therefore defendant no. 4 had no absolute right, title and interest to go to sale the said land. It is stated that the plaintiffs and defendants are in possession of the properties as co-sharers. The facts stated in the plaint that the defendant nos. 1 to 4 sold are denied. The defendant nos. 2 and 3 filing separate written statement pleaded in the same vain as that of defendant nos. 1 and 4 further stating that they claim share out of the land of their father. 5. Faced with above rival pleadings, the trial court framed in total 10 issues. Going to answer issue nos. 3, 4, 7 and 9 together, it has found after analysis of evidence and their assessment that the sale deed said to have been executed by Babulal, the defendant no. 4 and Jitmohan in favour of plaintiffs have not clothed the plaintiffs with the title in respect of land covered thereunder and the same were neither for consideration nor there was any necessity for the said sale nor as to the benefit of estate. It is found that defendant no. 1 has not sold any land to the plaintiffs by registered sale deed dated 11.8.75. So, all these issues have been answered against the plaintiffs. Practically, findings on these issues have resulted the decision in the suit which has ended with the dismissal. 6. It is found that defendant no. 1 has not sold any land to the plaintiffs by registered sale deed dated 11.8.75. So, all these issues have been answered against the plaintiffs. Practically, findings on these issues have resulted the decision in the suit which has ended with the dismissal. 6. The lower appellate court being moved has affirmed the said findings recorded by the trial court. The finding being affirmed, the dismissal of the suit has finally stood which is now called in question. 7. The appeal has been admitted by order dated 13.11.98 on the following substantial question of law : “Whether the plaintiffs have acquired right by the sale deed executed by that co-sharer and whether there was a partition of the joint family properties?” 8. I have heard the learned counsel for the appellants. Despite service of notice and opportunity, none has appeared on behalf of the respondents. 9. Learned counsel for the appellants before going to advance his submission on the substantial question of law places an important aspect that the plaintiffs in the trial court had filed a petition for amendment of the plaint stating some facts touching the factum of partition so as to get rid of the situation, lest any evidence let in on that score would be overlooked in view of the lack of pleadings to provide foundation for the same. It is also his submission that from the very beginning the averments of the plaint being read in entirety, it can well be found that there has remained clear hint as regard to the partition and in fact that is the basis of the present suit for declaration. However, the trial court when had rejected it on the ground that it changes the nature and character of the suit and causes prejudice to the defendants, the lower appellate court ought to have interfered with the same at the first instance when it had been very much raised before it and it was within its legal competence to correct the said error committed by the trial court. So, he contends that the lower appellate court instead of confirming the judgment and decree passed by the trial court, after allowing the amendment ought to have remitted the matter to the trial court to decide the suit afresh by giving opportunities to the parties to lead further evidence if any. So, he contends that the lower appellate court instead of confirming the judgment and decree passed by the trial court, after allowing the amendment ought to have remitted the matter to the trial court to decide the suit afresh by giving opportunities to the parties to lead further evidence if any. He therefore contends that it having been raised as the substantial question of law time and again in the memorandum of appeal at so many and practically as the only one, the same ought to be decided as the substantial question of law now and not the one as framed at the time of admission which of course is fairly submitted by him to be not arising in the case and as such inadvertently so framed at the time of admission. 10. Considering the submission of the learned counsel for the appellants when a bare reading is given to the judgment of the lower appellate court, it is found that the challenge was made before it with regard to such rejection of the prayer for amendment of the plaint as also it was argued at the time of hearing. But that has been repelled by the lower appellate court merely stating such order as just and proper. Thus, the submission of the learned counsel for the appellants has its force that it should be taken up as the substantial question of law since only in the event of an answer to it in favour of the plaintiffs, there would arise the scope to interfere with the confirming judgment and decree as the courts below have also taken that as not to be the case of the plaintiffs. Therefore, accepting the said submission now this Court sits over to answer the same as the substantial question of law in this appeal as that would suffice the purpose and the substantial question of law that had been framed would in the absence of the present substantial question of law being answered in favour of the plaintiffs would lend them nowhere. The substantial question of law at present thus stands as under:- “Whether the lower appellate court’s conclusion that the trial court has rightly rejected the prayer for amendment is sustainable in law as it is not based on proper construction of the pleadings in the plaint being given a reading in entirety and as such the lower appellate court has committed the same blunder as had been done by the trial court by not setting it aside as provided in section 105 of the Code of Civil Procedure.” 11. It appears from scrutiny of the order sheet of the trial court that after closure of the evidence from the side of the plaintiffs, on 16.3.92, the suit stood posted to 23.03.92 for evidence from the side of the defendants. On that day when the defendants moved for grant of time for leading evidence, the plaintiffs filed a petition under Order 6 Rule 17 of the Code for amendment of the plaint. Objection being invited, after hearing, the trial court rejected the petition on 6.5.92. On further verification of the order sheet it is seen that the plaintiffs had time and again moved the trial court on 6.7.92 and 20.7.92 stating to have filed Civil Revision before the learned District Judge, Mayurbhanj and had taken time to file stay order. The court has also liberally considered the said prayer. Accordingly further hearing of the suit at that stage as was standing for recording the evidence from the side of the defendants had been deferred. Finally, the evidence from the side of the defendants has been taken on 27.7.92. However, there is no further indication in the order sheet as regards the status of the Civil Revision as asserted to have been filed by the plaintiffs and that having not been placed, the suit has been finally disposed of. The plaintiffs have thereafter also remained silent and have not placed further as to what happened in that Civil Revision till argument or even thereafter. This was also not placed before the lower appellate court nor so noticed. 12. On verification it has been further ascertained that the order of refusal of the prayer for amendment of the plaint filed by the appellant was challenged in Civil Revision No. 13 of 1992 before the learned District Judge and that has been dismissed on 02.11.1992. This was also not placed before the lower appellate court nor so noticed. 12. On verification it has been further ascertained that the order of refusal of the prayer for amendment of the plaint filed by the appellant was challenged in Civil Revision No. 13 of 1992 before the learned District Judge and that has been dismissed on 02.11.1992. Now the challenge to the said order of rejection of the prayer for amendment is on the ground that it is on erroneous consideration by the first appellate court. We may see the provision of section 105 of the Code which is as follows:- “Other orders-(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in ay other, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness”.. 13. It is no doubt correct to say that the scope of revision application is narrower then the scope of an appeal. However, when the revisional jurisdiction of the superior court is invoked, it is so done as the superior court is in a position to interfere with the said order for the purpose of rectifying the error committed by the court below. Section 115 of the Code no doubt circumscribes the limitation of that revisional jurisdiction but still the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the learned District Judge as a superior Court. It is only one of the modes of exercising power conferred by the statute. Basically and fundamentally, it is the appellate jurisdiction of the learned District Judge which is being invoked and exercised in a wider and larger sense. If the order of rejection of the prayer for amendment of the plaint would not have been challenged certainly as provided in section 105 of the Code, its correctness and sustainability would have remained open to be examined further. If the order of rejection of the prayer for amendment of the plaint would not have been challenged certainly as provided in section 105 of the Code, its correctness and sustainability would have remained open to be examined further. But since a remedy has been availed of and the order on that score has become final, their correctness or sustainability is no more open to challenge in the appeal by banking upon the provision of Section 105 of the Code which in fact is not engrafted in the Code being intended to be taken aid of in the present eventuality. It is further pertinent to state here that when in this case the civil revision had been filed, the scope of the interference was much wider as by then the Civil Procedure Code Amendment Act 46 of 1999 had not come into force which came into force w.e.f. 01.07.2002 by introducing the concept of ‘case decided’ through the proviso added thereto. Thus the submission of the learned counsel for the appellant on this score fails. 14. Even keeping aside the view as above, let us touch upon the merit of the submission as regards interference with the said order of rejection of the prayer of amendment of the plaint in exercise of the power under section 105 of the Code. The provision refers to any error, defect or irregularity in any order to be taken into account in the appeal, if so set forth as a ground of objection which of course had been taken both in the lower appellate court as also before this Court. 15. The parties having proceeded with the trial of the suit till closure of the evidence of the plaintiff, the prayer for amendment of the plaint had been made at that stage. The very case of the plaintiff till then remained with the following pleadings on the question of separation :- “That both Jitmohan and Khetramohan become finally separate in mess and properties long back during their life time and possessed their separated share as absolute none thereof and each of them died while in separate mess and properties. The very case of the plaintiff till then remained with the following pleadings on the question of separation :- “That both Jitmohan and Khetramohan become finally separate in mess and properties long back during their life time and possessed their separated share as absolute none thereof and each of them died while in separate mess and properties. It may also be mentioned here that the plaintiff and his brother Sahadev also partitioned the lands of Jitmohan at the instance of Jitmohan about 20 years back and in the partition Jitmohan declined to take his share or any parcel of the land on the other hand all the lands of Jitmohan were finally divided into two share and thereafter Sahadev sold away his share of lands to different persons but Jitmohan executed the sale deeds and Sahadev received and utilized the money received as considerations.” 16. At this stage, it may be stated that the very above paragraph was introduced by amendment, when the leave was granted by order dated 06.05.1992 as it had been found to have no such impact on the nature and character of the suit or to be causing any such surprise or prejudice to the adversary. The other item of amendment which was refused by that order has been categorically said to be seriously impacting the nature and character of the case of the plaintiff as it has been found to be bringing substantial change in the framing of the case of the plaintiff, causing prejudice to the defendants. This part of the prayer concerns with final partition of the joint family between Jitmohan and Khetramohan and so also between the sons of Jitmohan i.e. plaintiff no.1 and defendant no.1. In fact the item of amendment which has been allowed appears to be in conflict with the item of amendment which has been refused. In my considered view, upon careful reading of the entire plaint and looking at the said portion sought to be amended, no such error, defect and irregularity appear in the order of the refusal of the amendment of that item, so as to say that it has affected the final decision of the suit. In my considered view, upon careful reading of the entire plaint and looking at the said portion sought to be amended, no such error, defect and irregularity appear in the order of the refusal of the amendment of that item, so as to say that it has affected the final decision of the suit. That is probably the reason that on 29.08.1992, to which date the suit was posted for judgment, as is further seen on verification of the order sheet of the trial court, the plaintiff had filed a petition to withdraw the suit. But it did not survive for consideration as by the time, the petition came to the tabled before the learned Subordinate Judge, the judgment had already been pronounced. However, later on by filing the first appeal curiously enough such move of withdrawal of the suit appears to have been given an decent burial. In view of the above, the substantial question of law as framed for being answered in this case, receives its answer accordingly which goes against the appellants remaining no further need for answering the earlier framed substantial question of law for the discussion and reasons so already stated. 17. Resultantly the appeal stands dismissed. However, no order as to cost is passed in this appeal in the facts and circumstances of the case.