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2016 DIGILAW 276 (ORI)

Keshab Chandra Mallik v. Rama Dei

2016-04-08

D.DASH

body2016
JUDGMENT : 1. In both the above noted second appeals, the judgment and decree passed by the learned Addl. District Judge, Nayagarh in Title Appeal No. 20/1 of 2003/1999 are under challenge. Therefore, both the appeals have been take up together for hearing and this common judgment is being passed which would govern both those appeals. 2. The appellant of RSA 561 of 2005 was the defendant no. 2 in the trial court in Title Suit No. 13 of 1977 on the file of learned Addl. Civil Judge (Jr.Divn.), Khandapara, whereas the appellant of RSA No. 580 of 2005 as the defendant no. 1. The suit had been filed by one Rami Dei as the plaintiff. She having died during pendency of the suit, her legal representatives being substituted in her place pursued the suit till its end. The suit had been filed for declaration of right, title and interest of the plaintiff over the suit land confirmation of possession in the alternative for recovery of possession and other consequential reliefs. The suit stood decreed in part. The trial court held the plaintiffs and defendant no. 2 to have joint title and possession over the suit land and accordingly directed recovery of possession of the suit land from defendant no. 1 for such the enjoyment of possession by the plaintiffs and defendant no.2 till they go for regular partition amongst themselves. In view of the above result of the suit, the plaintiffs felt aggrieved by the refusal of grant of all the reliefs as specifically prayed for and by said moulding of the reliefs by the trial court. So they filed the first appeal which was numbered as Title Appeal No. 20/1 of 2003 and 1999 (in short for reference-‘A’). In that way, defendant no. 1 being aggrieved by the order of the trial court directing recovery of possession of the suit land from him so as to be jointly possessed by the plaintiffs and defendant no. 2, filed another first appeal which was numbered as Title Appeal No. 21/2 of 2003/1999 (in short for reference-‘B’). Both these appeals came to be heard together by the learned Addl. District Judge, Nayagarh who at the end dismissed the appeal ‘B’ and allowed the appeal ‘A’ in finally decreeing the suit for recovery of possession of the suit land from defendant no. Both these appeals came to be heard together by the learned Addl. District Judge, Nayagarh who at the end dismissed the appeal ‘B’ and allowed the appeal ‘A’ in finally decreeing the suit for recovery of possession of the suit land from defendant no. 1 by the plaintiffs and setting aside the entitlement of defendant no. 2 to have the joint possession of the suit land with the plaintiffs. Therefore, the unsuccessful defendant nos. 1 and 2 have now come up to file the above noted second appeals separately. It may further be stated here that one of the legal representatives of original plaintiff having died during the second appeal, her legal representatives are on record. 3. It is the case of the plaintiff that the suit land originally belonged to one Duryodhan Majhi who was in possession of the same. He being in need of money to acquire the house entered into an agreement for sale of the suit land with defendant no. 1 and delivered possession of the same to him on receiving of advance consideration of Rs. 925/-. However, thereafter in spite of repeated request when defendant no. 1 did not pay the balance consideration, said Duryodhan sold the suit land to the ancestors of the plaintiffs by two registered sale deeds dated 28.1.72 and 11.4.72 for valuable consideration. The defendant no. 1 then filed a suit which was numbered as T.S. 4/72 against his proposed vendor as also the subsequent purchasers, the ancestors of the plaintiff. The relief claimed in the suit was for specific performance of contract. The said suit being contested stood dismissed. Although first appeal was filed by the defendant no. 1, he did not get the desired result. He then carried second appeal to this Court which was also dismissed. However, as per the admitted case, Duryodhan having delivered possession of the suit land to defendant no. 1 at the time of agreement, his possession of the suit land had been found by all the courts in that round of litigation. In this way, after the closure of the first round of the litigation by the order of this Court in the second appeal finally refusing the defendant no. 1 as to be entitled to the relief of specific performance of agreement, the purchasers filed the suit for recovery of possession of the suit land from defendant no. 1. In this way, after the closure of the first round of the litigation by the order of this Court in the second appeal finally refusing the defendant no. 1 as to be entitled to the relief of specific performance of agreement, the purchasers filed the suit for recovery of possession of the suit land from defendant no. 1. During the suit when the plaintiffs stated that the defendant no. 2 was claiming to have purchased half of the suit land from one sister of that Duryodhan, the plaint was amended and defendant no. 2 was impleaded as party. It is their further case that in order to create complication and somehow to retain the possession of the suit land despite of being defeated in the legal battle on the first round in getting the land purchased pursuant to the agreement, the defendant no. 1 had set up the defendant no. 2 in creating the sale deed from Sashirekha, the sister of Duryodhan. 4. The defendant no. 1 in his written statement asserted to be possessed of the right over the suit land and thus, he claimed to have all the rights to retain the possession. He further stated that originally the suit land being the service tenure and after abolition of the village police system, the land was settled with the father of Duryodhan. So on his death, his son Duryodhan and daughter Sashirekha jointly succeeded to the interest of the Duryodhan being Class-I heirs as per Schedule-I of the Hindu Succession Act along with their mother. So Duryodhan’s share is said to be 1/3rd over the suit land. Thus he asserted that the sale of entire suit land to Govind and Kanduri, the ancestors of the substituted plaintiffs is not valid. The defendant no. 2 contested the suit pleading inter alia to have purchased half share of land from one Sashirekha the sister of Duryodhan by registered sale deed. Thus he asserted that the plaintiffs are not entitled to get the recovery of possession of the entire suit land from defendant no. 1. In other words, he seeks protection of possession of defendant no.1 in respect of that half which he purchased. 5. The trial court with such rival pleadings framed thirteen issues. Thus he asserted that the plaintiffs are not entitled to get the recovery of possession of the entire suit land from defendant no. 1. In other words, he seeks protection of possession of defendant no.1 in respect of that half which he purchased. 5. The trial court with such rival pleadings framed thirteen issues. Going to answer all the seven important issues together finding those to be interlinked, it held the sale in favour of the ancestors of the plaintiffs by Duryodhan not only to be valid but also the sale made by Sashirekha in favour of defendant no. 2 to be also as such so far as their respective interests are concerned. In other words it returned the finding that defendant no. 2 and the plaintiffs are joint owners being purchasers having derived interest over equal half from their respective vendors. 6. Next going to answer the claim of defendant no. 1 seeking protection under Section 53-A of the Transfer of Property Act, it has negatived the said claim that he has any right to retain the possession. Lastly, answering other issues it declared the joint title of the plaintiffs and defendant no. 2 over the suit land and as such to possess the same jointly. It has also held that the defendant no. 1 is liable to vacate the possession in favour of the plaintiffs and defendant no. 2 who are to possess the same jointly till they partition the properties amongst themselves. 7. The lower appellate court after hearing both the appeals as aforestated together has rendered common judgment. As seen, it has gone to approach the matter in its right perspective. The discussion for the purpose as also the reasons are found to have been reflected at Paras-7, 8 and 9 of the judgment. For better appreciation, this Court feels it proper to reproduce those as are very relevant herein below:- “7. It appears from the pleadings of the parties and the evidence on record that earlier suit filed by defendant no.1 against Duriyodhan and deceased plaintiffs for specific performance of contract was dismissed even by the Hon’ble High Court. However he was found in possession of the suit land pursuant to the earlier agreement. He having lost the earlier suit his possession over suit land amounts to that of a trespasser. However he was found in possession of the suit land pursuant to the earlier agreement. He having lost the earlier suit his possession over suit land amounts to that of a trespasser. Even if the case of both the defendants that Sashirekha, the vendor of defendant no.2 is a common owner along with Duriyodhan is accepted and Duriyodhan having sold the suit land to the plaintiffs, as a co-owner suit by the plaintiffs to recover possession of land from a trespasser, is maintainable. Even if defendant no.2 is held in the circumstances as the co-owner of the suit land along with the plaintiffs, still then the plaintiffs can maintain a suit for recovery no possession against defendant no.1 who certainly stands in the footing of a trespasser. Further it is not open to him to contest the suit stating that the plaintiffs have no full interest over the suit land and in that even as the suit land is the joint property of the plaintiffs and defendant no.2 and being undivided, the plaintiffs have interest over every inch of suit land and a suit for recovery of possession by him can be maintained. Therefore, in the instant case whatever the case may be, defendant no.1, the appellant in Title appeal No. 21/2 of 2003/1999 is a stranger and a trespasser to the suit land and has no locus standi to challenge the suit. He having not come up with any specific case that the title over the suit land or, he is entitle to retain possession thereof in any manner, the appeal filed by him in Title Appeal No. 21/2 of 2003/1999 is not maintainable and thus, liable to be dismissed. 8. Defendant no.2 resisted the recovery of possession stating to have purchased 14 ½ decimals of land corresponding to ½ interest over the entire suit land from Sashirekha, the sister of Duriyodhan by a registered sale deed dt.15.04.1981 which has been proved and marked as Ext.E on his behalf. The consistent case of the plaintiffs is that the defendant no.1 in order to obstruct recovery of possession of the suit land set up defendant no.2 and obtained a fake sale deed in Ext.E from Sashirekha which is not supported by any consideration. The consistent case of the plaintiffs is that the defendant no.1 in order to obstruct recovery of possession of the suit land set up defendant no.2 and obtained a fake sale deed in Ext.E from Sashirekha which is not supported by any consideration. It is manifest from the evidence of defendant no.2 who examined himself as D.W.9 in the instant case that he has civil and criminal litigations with the plaintiffs. Purchase of Ac.0.14 ½ decimals of the suit land by defendant no.2 from Sashirekha otherwise also appears to be improbable. It is in the evidence of defendant no.2 that during purchase of the suit land he had knowledge that there was litigations over the same. He also knew that his vendor was not in possession over the suit land. Admittedly on the date of alleged sale the suit land was under the possession of a receiver and by then the present suit was already pending. It is apparent that it was also very much to his knowledge that he would not be able to cultivate the said land. Under such circumstances no prudent man will come forward to purchase a land under litigation for good price. It is in the evidence of his vendor Sashirekha (D.W.7) that defendant no.2 even did not ask her as to which land he would possess. It was also not discussed as to how he will get possession of the land purchased by him. It appears from the evidence of D.W.9 (defendant no.2) that Sashirekha did not play any active role in execution of the sale deed as she had not purchased stamp papers nor also imparted any instruction to the scribe. All these facts when taken together for consideration, the court has to arrive at an irresistible conclusion the Ext.E is not free from suspicion and the argument that defendant no.2 was set up by defendant no.1 to resist a decree for recovery of possession, in the circumstances, cannot be ruled out as without substance. 9. The sale deed Ext.E executed in favour of defendant no.2 shows that Ac.0.24 ½ decimals of land within the boundary given representing half interest of Sashirekha was sold to defendant no.2. Even if it is accepted as true defendant no. 2 cannot resist the suit for recovery of possession particularly by the plaintiffs who according to him are also co-owners. The sale deed Ext.E executed in favour of defendant no.2 shows that Ac.0.24 ½ decimals of land within the boundary given representing half interest of Sashirekha was sold to defendant no.2. Even if it is accepted as true defendant no. 2 cannot resist the suit for recovery of possession particularly by the plaintiffs who according to him are also co-owners. Admittedly, Sashirekha one of the co-owners transferred a portion of the suit land or her interest over the same as is argued by defendant no.2 in his favour. It is settled position of law that where a co-owner not in actual possession of any portion of the joint holding he was not entitled to transfer any part of it and the only remedy is to seek for a partition. Even if it is held that defendant no.2 is a co-owner with the plaintiffs and each of the parties being owners of every inch of the property, the position will change only when a partition will take place. In the instant case the court is not competent to adjudicate right or title of the defendant no.2 over the suit land. The question is whether plaintiffs can recover possession of the suit land from defendant no.1. Since in the instant case the only remedy available to defendant no.2 is to file a suit for partition, if advised, after recovery of possession of the suit land from defendant no.1. At this juncture defendant no.2 cannot be permitted to resist the plaintiff’s suit for recovery of possession from defendant no.1. In view of such position, I am unable to subscribe to the view expressed by the learned trial Court that defendant no.2 is also entitled to possession of the suit land along with the plaintiffs. The title of defendant no.2 is yet to be established in view of execution of Ext.E executed under suspicious circumstances.” In view of above, the appeal of defendant no. 1(B) has been dismissed whereas the appeal of plaintiffs (A) has been allowed. 8. Learned counsels for the appellants submit that the followings are the substantial questions of law which arise in the case for their certification for the purpose of admission of both the appeals. “i. Whether the learned courts below are justified in accepting the sale deeds executed by Duryodhan vide Exts. 8. Learned counsels for the appellants submit that the followings are the substantial questions of law which arise in the case for their certification for the purpose of admission of both the appeals. “i. Whether the learned courts below are justified in accepting the sale deeds executed by Duryodhan vide Exts. 3 and 4 to be valid when other co-sharers were not the executants nor Duriyodhan had exclusive right, title, interest over the suit properties. ii. When the plaintiff’s vender is not the exclusive owner of the suit schedule properties and there are other co-sharers who are not parties to the sale deed whether the learned courts below are justified in accepting Exts. 3 and 4 to have conferred title in favour of the plaintiff. iii. Whether the conclusion of the court below that the defendant no.2 cannot resist the plaintiff’s suit for recovery of possession on the premises that even if the defendant no.2 is a co-owner, the only remedy available to him is to file a suit for partition, is sustainable in law ? iv. Whether the conclusion of the learned appellate court that Ext. E, on the basis of which the defendant no.2 claims title is not free from suspicion is sustainable in law and whether the consequential decree passed by the learned appellate court is sustainable in law?” The learned counsel for the appellants have next gone to argue on each of the above questions with reference to the rival case, evidence on record touching the same placing the position of law in great detail so as to persuade this Court that those are not merely the questions of law but are substantial questions of law. 9. Learned counsels for the respondents submit that the above may be said as the questions of law which arise in these appeal but those cannot be termed as substantial questions of law in this case for the purpose of admission of the appeals. These are all well settled. 10. In view of above rival contentions, let me now address the above points raised by the learned counsel for the appellant so as to finally say as to whether those are the substantial questions of law or not. 11. The position has been very well explained by the Hon’ble Apex Court in the case of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155 that :- “4……… ‘21. 11. The position has been very well explained by the Hon’ble Apex Court in the case of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155 that :- “4……… ‘21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal Case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (Chunilal) case, AIR 1962 SC 1314 , para-5. “5…………when a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. “5…………when a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” The principles relating to Section 100 CPC has further been exposited in the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287 that :- “The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law”. 12. On the anvil of the above settled law, I feel it to proceed further in answering in finally to take view of the rival submission. Undeniably, the suit filed by the defendant no. 1 against Duryodhan also arraigning the plaintiffs of the present suit for specific performance of the agreement by defendant no. 12. On the anvil of the above settled law, I feel it to proceed further in answering in finally to take view of the rival submission. Undeniably, the suit filed by the defendant no. 1 against Duryodhan also arraigning the plaintiffs of the present suit for specific performance of the agreement by defendant no. 1 in his favour in executing the sale deed in respect of the suit land has been dismissed and it has attained finality with all the findings running against him in so far as the grant of the relief of specific performance of the agreement is concerned save and except the one that he is in possession of the suit land which was practically not disputed. The possession of the suit land by the defendant no. 2 pursuant to the agreement in view of the finding that he is not entitled to the relief of specific performance of the agreement as that of a trespasser, does not stand to get the protection as provided under Section 53-A of the T.P. Act. So if he is a trespasser as per the settled position of law, a suit for eviction of the trespasser is maintainable at the instance of one of the co-owners even without joining the other co-owners vis-à-vis the said land as parties. The eviction and recovery of possession of the suit land by those co-owners is to enure to the benefit of all the co-owners and in law it is deemed to be for and on behalf of all the co-owners. So in the present case even if the defendant no. 2 is taken for a moment as one of the co-owners having stepped into the shoes of purchaser of Sashirekha, the sister of Duryodhan who is the vendor of the ancestors of the plaintiff being the purchaser in respect of her interest, the suit at the instance of the plaintiffs is very much maintainable in law for recovery of possession of the suit land from defendant no. 2. The defendant no. 2 under no circumstance can resist the same as in law the possession of the plaintiffs in respect of the suit land would also to be deemed to be the possession for and on behalf of the defendant no. 2, the other stepped co-owner being the purchaser from Sashirekha the sister of Duryodhan. In view of above, the defendant no. 2 under no circumstance can resist the same as in law the possession of the plaintiffs in respect of the suit land would also to be deemed to be the possession for and on behalf of the defendant no. 2, the other stepped co-owner being the purchaser from Sashirekha the sister of Duryodhan. In view of above, the defendant no. 1 has practically no further say in the suit and he is but to vacate possession of the suit land in any event having no right at all to resist and hold on with the possession. 13. The point at this stage arises for consideration as regards the resistance leveled by the defendant no. 2 for recovery of possession of the suit land by the plaintiffs from defendant no.1. It is his claim that he has purchased Ac.14.5 decimals of land covering half of the area of the suit land from Sashirekha, the sister of Duryodhan who is said to have succeeded to the property with Duryodhan in equal share. In view of the assertion of the plaintiffs that such sale deed in favour of defendant no. 2 said to have been executed by Sashirekha is a fake one, the lower appellate court has gone to take that aspect into consideration. It is stated by the defendant no. 2 that when he purchased the suit land he had no knowledge about any prior litigation concerning the said subject matter and he knew that his vendor Sashirekha was in possession of the suit land. The fact remains that on the date of sale of the suit land, the same was in possession of a receiver by then and that was the situation even when the instant case filed by the ancestor of the plaintiffs for recovery of the possession of the suit land from defendant no. 1 after declaring their right, title and interest over it was pending. Thus, the defendant no. 2 is a lis pendence purchaser. He had the knowledge that he would not be able to straight way possess the suit land. The purchase concerns with exactly Ac.14.5 decimals of land and with specification prima facie exposes improbability. The vendor Sashirekha being examined as D.W. 7 has clearly admitted that the purchaser i.e. the defendant no. 2 is a lis pendence purchaser. He had the knowledge that he would not be able to straight way possess the suit land. The purchase concerns with exactly Ac.14.5 decimals of land and with specification prima facie exposes improbability. The vendor Sashirekha being examined as D.W. 7 has clearly admitted that the purchaser i.e. the defendant no. 2 did not even ask her as to which land he would be going to possess and as to how he would get the possession of the land purchased by him. The defendant no. 2 examined as D.W. 9 further clarifies the position that Sashirekha had played no such active role in the matter of execution of sale deed nor had given any such instruction to the scribe. Be that as it may, under any circumstances, sale of specific portion of the land is not valid and cannot under any circumstance stand as has been done in the present case and it would at best be so only it to the extent of the interest that Sashirekha was having. In the present suit as framed and laid, the court is not called upon to decide the right, title and interest of the defendant no. 2 over the suit land. The only question stands as to whether the plaintiffs can recover possession of the said land from defendant no. 1. The remedy for the defendant no. 2 as a purchaser as claimed by him from one of the co-owners is always available by filing a suit for partition and getting the required division done and allotment of specific portion of the land to his vendor so as to be finally adjusted and allotted to him as also to recover the possession the same from the plaintiffs. But that cannot stand in the way of the plaintiffs to recover possession of the suit land from defendant no.1 as the defendant no. 2 is not found to be in possession of any portion of the suit land on the strength of his so called purchase. So he now cannot play the role of a meddler in preventing the plaintiffs from recovering the possession of the suit land from the defendant no.1, when the defendant no.2’s position remains as that of a lis pendence purchaser. So he now cannot play the role of a meddler in preventing the plaintiffs from recovering the possession of the suit land from the defendant no.1, when the defendant no.2’s position remains as that of a lis pendence purchaser. Thus he has nothing to do in this litigation and the only remedy available to him is to get his right as a purchaser established in a duly constituted legal proceeding so as to get the desired relief. That is the only way open to him. Thus, by no stretch of imagination, the defendant no. 2 can resist the plaintiff’s suit for recovery of possession of the suit land from defendant no.1. This Court is wholly in agreement with the decision of the lower appellate court that the view expressed by the trial court that defendant no. 2 is also entitled to the possession of the suit land along with the plaintiffs is indefensible. Moreover, the moulding of relief in that way in this suit as was done by the trial court is wholly impermissible being not in consonance with spirit of the provision of Order 7 Rule 7 of the Code further when as per the provision of Order 7 Rule 3 of the Code, the said decree as was passed by the trial court was in executable which the court was not called upon to pass for the main reason that the same instead of putting an end to the litigation keeps it further alive leading to further complicated situation and scramble over possession etc. The decree as had been passed by the trial court if is allowed to stand rather would almost amount to non-suit the plaintiffs especially at the instance of a lis pendence purchaser accepting his claim when the very basis is under challenge and not conclusively decided without removal of the cloud and it would further put the unsuccessful defendant no. 1 in both the rounds of litigation in a highly advantageous situation in respect of the enjoyment of the property over which he has absolutely no right whatsoever. For the above I find the legal position being clear, the lower appellate court has not at all gone to decide the matter by ignoring or acting contrary to the legal principles. It has also nowhere violated the settled position of law. For the above I find the legal position being clear, the lower appellate court has not at all gone to decide the matter by ignoring or acting contrary to the legal principles. It has also nowhere violated the settled position of law. The well settled principles of law are also found to have been properly applied to the peculiar facts of the case. In view of my above discussions covering all the points raised by the learned counsel for the appellants, the submission of the learned counsel for the appellants is accepted to the extent that although the point so raised by him as mentioned in the earlier para-8 are the substantial questions of law yet those cannot be termed to be the substantial question of law in the case as enunciated in the authoritative pronouncement referred to be above, so as to be certified for the purpose of admission of this appeal. The lower appellate court is thus found to have rightly decided both the appeals in allowing (A) and dismissing (B) and this Court finds no such justification to interfere with the same in any manner. Therefore, both the appeals do not merit admission. 14. In the result, both the appeals stand dismissed with cost throughout.