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2016 DIGILAW 371 (ORI)

Madhusudan Jena v. Ramamani Biswal

2016-05-11

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Balasore in Title Appeal No. 5/44 of 2005/2000 confirming the judgment and decree passed by the learned Additional Civil Judge (Senior Division), Balasore in T.S. No. 198 of 1992. The appellant as the plaintiff had filed the suit for partition of the land described under schedule ‘kha’ of the plaint and for allotment of his share. The suit having been dismissed, the present appellant had carried an appeal under section 96 of the Code of Civil Procedure. As the appellant has again been unsuccessful, the present second appeal has been filed 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. Plaintiff’s case is that he is the only son and is the youngest of the children of the defendant nos. 1 and 2. His sisters are defendant nos. 3 to 7. It is stated that the suit land is the ancestral property in the hand of his father, the defendant no.1. So he had approached defendant no.1 for amicable partition and that having not been respond to, the suit has been filed. The defendant no. 1 contested the suit by filing the written statement challenging the lack of cause of action, the maintainability of the suit and most importantly denying the status of the plaintiff as his son. 4. With the above rival pleadings, the trial court has framed four issues and has rightly taken up the issue concerning the status of the plaintiff as claimed by him to be the son of defendant no.2 which is seriously challenged, first for decision. Upon discussion of the evidence both oral and documentary on record, finding has been rendered that the plaintiff is not the son of defendant no.1, but he is the son of one Gajendranath Jena. The above finding has practically resulted the dismissal of the suit. The lower appellate court as is seen from the judgment having gone to address the challenge made to the above finding of the trial court has examined the evidence afresh at its level and despite of said exercise, it has not been able to record the finding contrary to that of the trial court. The lower appellate court as is seen from the judgment having gone to address the challenge made to the above finding of the trial court has examined the evidence afresh at its level and despite of said exercise, it has not been able to record the finding contrary to that of the trial court. Thus at last having accorded approval to the finding of the trial court on the status of the plaintiff as claimed to be against him has dismissed the appeal and confirmed the judgment and decree passed by the trial court in dismissing the suit. 5. Learned counsel for the appellant submits that the findings of the courts below as regards status of the plaintiff is perverse. According to him, not only that the finding stands against the weight of the evidence on record, but also the courts below have ignored to consider the deeds of partition, Ext.6 in its proper prospective in arriving at a proper finding. He further contends that the courts below have fallen in error by discarding Ext.1 from consideration although the same has great impact on the fact in controversy. It is further submitted that the courts below have completely lost sight of evidence of D.W.1 who is the daughter of defendant no.1, when she has stated that her father executed the deed of partition Ext.1, the same under no circumstance could have been ignored. These according to him, are the substantial questions of law which arise in the case for their certification for the purpose of admission of the appeal. 6. Learned counsel for the respondent no.1 to 9 having entered appearance in countering the above submission contends that the finding that has practically decided the fate of the suit being a pure question of fact, when the courts below have recorded the concurrent finding that the plaintiff is not the son of defendant no.1, this Court’s power to interfere is the very limited only on being satisfied that the same suffers from the vice of perversity which is not the case here. So he urges for dismissal of the appeal. It is his contention that the courts below have rightly taken the view so far as Ext. 1 and Ext.6 are concerned and those have been rightly eschewed from consideration. 7. So he urges for dismissal of the appeal. It is his contention that the courts below have rightly taken the view so far as Ext. 1 and Ext.6 are concerned and those have been rightly eschewed from consideration. 7. In order to address the rival submission in finding out whether there arises any substantial question of law so as to answer in this case, let us briefly refer to the rival case of the parties. At the cost of repeatation, it may be stated that here when the plaintiff claims to be the son of defendant nos. 1 and 2, the case projected by the defendant no.1 is that he had a brother named Gajendranath and he died leaving behind his young widow, Ajodhya, the original defendant no.12, two sons namely Biranchi and Panchanan, defendant nos. 8 and 9 respectively and defendant no.10, the daughter. It is the specific case of the defendant no.1 that he has no son and only five daughters through his wife Gelhamani. It is his case that when Gajendranath died Ajodhya being in her youth developed illicit relationship with others and finally after about four years of death of Gajendra, she gave birth to the plaintiff. It having the tendency to cast adverse reflection on the family prestige, the defendant no.1 in order to preserve the same had recognized the plaintiff to be the son of Gajendra and as such allowed him and Ajodhya to continue as members of the family. Thus, it is said that plaintiff is the son born to Ajodhya long after the death of Gajendra, the husband of Ajodhya, and as such is not entitled to get any share from the suit property which he claims. In view of above, he claims his exclusive right, title and interest over the suit property. Going to explain the deed of partition on 04.07.1983, he has gone to deny its execution to have been made by him, further pleadings the same to be the creation of the plaintiff with the two brothers and others. The document is also challenged as such and it is urged that the same is not at all binding on him. Going to explain the deed of partition on 04.07.1983, he has gone to deny its execution to have been made by him, further pleadings the same to be the creation of the plaintiff with the two brothers and others. The document is also challenged as such and it is urged that the same is not at all binding on him. It is his case that as he was ill and bed ridden, the plaintiff and his brothers were taking care of him as also looking after his medical treatment and during that period, they had taken the advantage and managed to obtain signatures on some papers without his knowledge, which have been utilized for the purpose of creation of this deed in question. 8. Ext.1 is the Panchanama wherein the father’s name of the plaintiff finds indicated as Rajendra and said Rajendra who is the defendant no.1, is a witness to the document. So, it is reiterated that this defendant no.1 now cannot go to say that such description of the name of the father of the plaintiff therein is based on falsehood. It is the case of the defendant no.1 that after birth of the plaintiff, under the circumstances, as stated in the written statement in order to keep the family prestige, he was recognized as such the son of Gajendra although it was not the fact. In fact Ext.1 is the Panchanama which concerns with certain cause amongst the plaintiff, the defendant no.8 and 9. Defendant no.1 had nothing to do in the matter. It is the settled law that simply because a person stands just as the witness to the document and when he is neither concerned with the purpose for which the document is being executed nor even any interest in the object sought to be achieved thereby, he cannot be bound by the contents of the document, unless specifically pleaded and proved that such were with his full knowledge and he having understood all those, was a signatory to it as a witness. However, there remains a departure that when the witness has the proprietary interest on the subject matter concerning the document coming into being, there remains initial presumption that he had the knowledge about the contents which he is burdened to rebut. This is not the case here. However, there remains a departure that when the witness has the proprietary interest on the subject matter concerning the document coming into being, there remains initial presumption that he had the knowledge about the contents which he is burdened to rebut. This is not the case here. In the instant case, defendant no.1 had nothing to do with the purpose for which the document had been executed, nor he had any interest in the objective sought to be achieved by execution of the documents. Therefore, I find that the courts below have rightly discarded the contention of the plaintiff that this Ext. 1 has any say over the fact in controversy with regard to the status of the plaintiff. The next important document is Ext.6, the deed of partition executed, where defendant no.1, five daughters and the plaintiff are the parties. It reveals from the document that the plaintiff has been so allotted the share to the extent of Ac1.20 decimals. It is urged by the plaintiff that in the very document he having been described as son of defendant no.1, there remains no doubt with regard to his sonship. The defendant no.1 from the very beginning has come forward with the case that fraud has been practiced in creating said document and taking advantage of his ill health when plaintiff and his other brothers were taking his care and looking after his medical treatment. These documents appear to have been put to microscopic examination by the trial court. Accepting the case of the plaintiff that the property involved is the ancestral property, doubt has been entertained from the fact that how could the defendant no.2 be completely ignored and deprived in the said arrangement, as also when the five daughters at that point of time were having no interest over the property, how they have been arraigned as parties to such arrangement. The plaintiff here is not pressing the said document into service in claiming the property measuring Ac.1.20 decimals and is not asserting the same to have been his entitlement under the arrangement. Rather he comes forward to take the help as regards the description of his father’s name as made therein. There remains absolutely no explanation as to why such document is not placed into service for the purpose of distribution of the property in accordance with the same. Rather he comes forward to take the help as regards the description of his father’s name as made therein. There remains absolutely no explanation as to why such document is not placed into service for the purpose of distribution of the property in accordance with the same. The plaintiff interestingly enough has not pressed any explanation that if such arrangement has been made how he gets over the same in filing a fresh suit for partition. 9. Moreover, the courts below have found that the arrangement made under such document has never been accepted or acted upon by any of the parties at any point of time. Therefore, no such justifiable reason is ascertainable to hold that the courts below have committed any error by not taking the descriptions as regards the father’s name of the plaintiff as stated in these documents as the basis of the finding of the status of the plaintiff leading to say that they have fallen in error in holding the plaintiff to be not the son of defendant no.1. The courts below for the purpose have also examined the oral evidence let in by the parties as also the school leaving certificate and those after due examination have been found to be of no help to the plaintiff. Thus I find that such concurrent findings do not suffer from the vice of perversity and accordingly, the submission of the learned counsel for the appellant fails. The appeal therefore does not merit admission. 10. In the result, the appeal stands dismissed. No order as to cost.