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2016 DIGILAW 457 (ORI)

Haramani Paikray v. Hadibandhu Senapati

2016-06-24

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. The unsuccessful plaintiff has filed this appeal assailing the judgment and decree dated 23.09.2009 and 8.10.2009 respectively passed by the 1st Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No.38/735 of 2008/2006. 2. The suit was filed for declaration that the registered sale deed nos.6476 and 6477 dated 21.2.2004 executed in favour of defendant Nos.1 and 2 in respect of the suit property by virtue of the Power of Attorney No.806 dated 15.09.2001 are fraudulent, inoperative, void and not binding on the plaintiff. She also prayed for a decree of permanent injunction against the defendants. 3. The suit was filed in respect of the property appertaining to Plot No.63, Khata No.105 under mouza-Baramunda in the district of Khurda. The plaintiff had purchased the suit property from one Bhima Charan Swain vide RSD No.3689 dated 12.4.1982 followed by delivery of possession. After purchase, the plaintiff constructed a temporary shed over the suit land and rented it out to different tenants. In the year 2001, the husband of the plaintiff fell ill and could not look after the family. Thus, all her sons decided to construct a permanent structure over the suit land. Out of three sons of the plaintiff, the elder two did not agree to take up the responsibility. Her husband being ill was confined to bed and was unable to shoulder any responsibility. Defendant No.3, the youngest son of the plaintiff, agreed to look after the development of the suit land. Accordingly, a registered Power of Attorney bearing No.806 dated 15.09.2001 was executed by the plaintiff in favour of defendant No.3 for development of the suit property. The contents of the Power of Attorney was not read over or explained to the plaintiff and the plaintiff could not know about the terms and recitals of the same. It was further contended in the plaint that defendant No.3 had obtained the Power of Attorney by misrepresentation. It is only on 15.10.2006, when defendant Nos.1 and 2 tried to evict the tenants from the house constructed over the suit land, the plaintiff came to know that the Power of Attorney was obtained fraudulently by the defendant No.3 authorizing him to sell the suit property. By virtue of such authorization, the defendant No.3 sold away the suit land to defendant Nos.1 and 2. By virtue of such authorization, the defendant No.3 sold away the suit land to defendant Nos.1 and 2. The sale deeds executed in favour of defendant Nos.1 and 2 by defendant No.3 were nominal. No consideration money was paid to the vendor by virtue of such sale and no delivery of possession was given to defendant Nos. 1 and 2 pursuant to execution of such sale deeds. The plaintiff also challenged that the sale deeds were undervalued. She claimed to be in possession over the suit property. As her possession over the suit land was threatened by the defendant Nos. 1 and 2, she prayed for the aforesaid relief. 4. The defendant Nos. 1 and 2 filed their written statement jointly refuting the averments made in the plaint. They challenged the maintainability of the suit so also the cause of action for filing the same. They also contended that the suit was barred by limitation and also bad for non-joinder of necessary party. According to them, the plaintiff, who was the owner of the suit property, executed registered Power of Attorney No. 806 dated 15.9.2001 in favour of defendant No.3 authorizing him to negotiate and sell the suit property. Accordingly, defendant No. 3 sold the suit property in their favour for valuable consideration followed by delivery of possession. The consideration money was paid to defendant No.3 through different cheques, which were encashed by defendant No.3. Thus, the sale deeds in question were valid, operative and binding on the plaintiff as well as defendant No.3. Pursuant to such sale, the defendant Nos. 1 and 2 mutated the property in their name and the R.O.Rs. were corrected accordingly by renumbering the plot numbers as 813/1362 and 813/1361. They also contended that they were paying the rent and holding tax in respect of the suit property. The electricity connection was also taken in the name of defendant Nos. 1 and 2. Thus, they prayed for dismissal of the suit claiming that the suit was filed by the plaintiff in collusion with the defendant No. 3 and other family members to harass the defendant Nos. 1 and 2, who are bona fide purchasers of the suit property. 5. Defendant No.3 filed a separate written statement supporting the claim of the plaintiff, but he narrated a different story altogether. 1 and 2, who are bona fide purchasers of the suit property. 5. Defendant No.3 filed a separate written statement supporting the claim of the plaintiff, but he narrated a different story altogether. The written statement filed by defendant No.3 revealed that one Rabindra Kumar Paikray by mis-representing had managed to create the Power of Attorney and also registered the sale deeds in favour of defendant Nos. 1 and 2. The sale deeds executed in favour of defendant Nos. 1 and 2 were nominal and no right or possession whatsoever had been passed on to those defendants by virtue of such sale deeds. No consideration money was paid to defendant No. 3 for sale of the suit land. Further, he denied the allegation of the plaintiff to the effect that he had obtained the Power of Attorney fraudulently in order to garb the suit property. Hence, he claimed that the defendant nos. 1 and 2 had acquired no title pursuant to the sale deeds in question. 6. Taking into consideration the rival pleadings of the parties, the learned trial court framed the following issues. (i) Whether, the suit is maintainable? (ii) Whether, the plaintiff has the cause of action for the suit? (iii) Whether, the suit is bad for non-joinder of any necessary party (ies)? (iv) Whether, the suit is barred by time? (v) Whether, the power of attorney by plaintiff in favour of Defendant No.3 authorised the Defendant No.3 to alienate the suit land? (vi) Whether, the suit sale deeds by Defendant No.3 conveyed title to the defendants 1 and 2? (vii) Whether, the plaintiff holds title to the suit land? (viii) Whether, the plaintiff or defendants 1 and 2 are in possession over the suit land? (ix) To what relief, the plaintiff is entitled? 7. In order to substantiate their respective cases, the plaintiff examined as many as five witnesses including herself as P.W.1. She also relied upon Exts.1 to 4 including the certified copies of registered sale deed Nos. 6476 and 6477 dated 21.12.2004 executed by defendant No. 3 in favour of defendant Nos.1 and 2 (Exts.1 and 2), R.O.R. No. 813/417 of the suit land (Ext.3), which was prepared in her name and Ext. 4, i.e., the sale deed No. 3689 dated 12.4.1982 by virtue of which she had purchased the suit land. 6476 and 6477 dated 21.12.2004 executed by defendant No. 3 in favour of defendant Nos.1 and 2 (Exts.1 and 2), R.O.R. No. 813/417 of the suit land (Ext.3), which was prepared in her name and Ext. 4, i.e., the sale deed No. 3689 dated 12.4.1982 by virtue of which she had purchased the suit land. Defendant Nos.1 and 2 in support of their case, examined three witnesses including defendant No.1 as D.W. 1. They also relied upon different documents including the registered Power of Attorney (Ext. A), the sale deeds executed in favour of defendant Nos. 1 and 2 (Exts. B and C), copies of cheques (Ext. D/1) by virtue of which consideration money was paid to defendant No. 3, pass book (Ext. E) and relevant entries made in the pass book (Ext. E/1). They also relied upon Exts. F and G, the mutation R.O.Rs. in respect of the suit land in their favour. Exts. H to H/9 are rent receipts and Exts. J to J/9 are assessment and payment of holding tax. They further relied upon Exts. K to K/10 which were electricity bills and receipts in respect of the suit property. Defendant No.3 neither examined any witness nor produced any document in support of his case. 8. The learned trial court took up all the issues together for consideration and answered those negatively. Accordingly, the suit was dismissed. 9. Mr. Parija, learned counsel for the appellant canvassed that Issue No. (v) is the vital issue for consideration in this appeal. He contended that the plaintiff is an illiterate and paradanasini lady. She can not read and write in Odia except signing her name in Odia. Thus, onus lies heavily on the defendant Nos. 1 and 2 to prove that Power of Attorney (Ext.A) was properly executed and the plaintiff after understanding the contents thereof had put her signature on it. In support of his case, Mr. Parija relied upon the decisions in the cases of Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964) CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others, reported in AIR 1983 Orissa 172. He also contended that the sale deeds were nominal and no consideration money was paid to the plaintiff pursuant to execution of such sale deeds. Parija relied upon the decisions in the cases of Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964) CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others, reported in AIR 1983 Orissa 172. He also contended that the sale deeds were nominal and no consideration money was paid to the plaintiff pursuant to execution of such sale deeds. The plaintiff is still in possession of the suit land and the possession of the suit land was never delivered to defendant Nos.1 and 2 pursuant to the sale deeds (Exts.1 and 2). He further contended that the learned trial court has not assessed the evidence and the materials on record properly which resulted in grave miscarriage of justice. Thus, he prayed for setting aside the impugned judgment and decree and to grant the relief as prayed for in the suit. 10. Mr. Pradhan, learned counsel for the respondent Nos.1 and 2, on the other hand, refuting the submission made by Mr. Parija, contended that the plaintiff in her evidence has categorically admitted the execution of Power of Attorney. Though she claimed that she had no knowledge about contents of the terms and conditions of Power of Attorney and the Power of Attorney was only executed for development of the suit property, the scribe of the deed of General Power of Attorney had in clear terms endorsed that the contents of the deed was read over and explained to the plaintiff in Odia and after being satisfied, she signed the same. Thus, she had knowledge of the contents as well as the terms and recitals of the Power of Attorney. The consideration money was paid to defendant No. 3 through cheques (Exts. D and D/1). The entry of the cheques in the bank account of defendant No. 3 was also proved through Exts. E and E/1. In support of possession of defendant Nos.1 and 2 over the suit property, Mr. Pradhan relied upon Exts. F to K/10, which are mutation R.O.R., rent receipts, holding tax receipts etc. and electricity bills and receipts in respect of the suit property. Those documents clearly disclose that after purchase of the suit property, defendant Nos.1 and 2 mutated the same in their name, paid the land revenue and holding tax in respect of the suit property. They also took electricity connection in their names and paid the electricity charges. and electricity bills and receipts in respect of the suit property. Those documents clearly disclose that after purchase of the suit property, defendant Nos.1 and 2 mutated the same in their name, paid the land revenue and holding tax in respect of the suit property. They also took electricity connection in their names and paid the electricity charges. He also contended that the recitals of the sale deeds (Exts.1 and 2) clearly stipulate that consideration money was received and possession of the suit property was delivered to defendant Nos.1 and 2 pursuant to execution of the sale deeds. Thus, the sale deeds as well as the Power of Attorney cannot be said to have been obtained fraudulently and the same are binding on the plaintiff. Mr. Pradhan, further contended that there is no prayer in respect of Ext.A, the Power of Attorney. When there is no prayer either to declare the Ext. A as null and void or to declare the same not binding on the plaintiff, the contention of Mr. Parija to the effect that Ext.A was obtained fraudulently, is not sustainable in the eye of law and the genuineness of Ext.A cannot be questioned. The learned trial court has rightly assessed the evidence and the materials on record and came to a definite finding to the effect that the sale deeds were properly executed in favour of defendant Nos.1 and 2 and delivery of possession was given to them pursuant to such execution of the sale deeds. Thus, he prayed for dismissal of the appeal. 11. This matter had come up before this Court for consideration of the interim application (Misc. Case No.141 of 2015) on 21.7.2015. In course of hearing of the interim application, both the parties prayed to make an endeavour to dispose of the appeal finally. Thus, this Court proceeded to dispose of the matter finally dispensing with the formal admission of the appeal. Accordingly, Mr. Parija filed the paper book on compulsory documents and Mr. Pradhan filed the photocopies of the relevant exhibited documents, copies of which were exchanged between learned counsel for the parties. 12. Mr.Parija, learned counsel for the appellant drew attention of this Court to different terms and conditions of the Power of Attorney. Accordingly, Mr. Parija filed the paper book on compulsory documents and Mr. Pradhan filed the photocopies of the relevant exhibited documents, copies of which were exchanged between learned counsel for the parties. 12. Mr.Parija, learned counsel for the appellant drew attention of this Court to different terms and conditions of the Power of Attorney. On perusal of Ext.A, it appears that the principal, namely, the plaintiff had made a declaration that she being a Paradanasin lady unable to appear before various competent authorities and do certain acts, deeds and things for which she executed a General Power of Attorney in favour of her son, namely, Susanta Kumar Paikray, defendant No.3 as her true and lawful attorney. Clause-6 of the Power of Attorney stipulates that defendant No.3 was authorized to sell the suit property, purchase stamp papers, sign and execute the sale deed and any other deed of conveyance, agreements etc. on behalf of the plaintiff. It is further disclosed from Ext.A that the scribe, namely, Sri Kirti Chandra Swain, Advocate, Bhubaneswar has given his declaration, which is as follows:- “Drafted by me as per the instruction of the executant and explained the contents of this deed in Oriya to the executant who being satisfied signed this Deed. Sd/- (K.C.Swain)15.09.2001 Advocate, Bhubaneswar” Three things are apparent from perusal of Ext.A, such as (i) the principal, namely, the plaintiff has described himself as Paradanasin lady; (ii) Clause-6 of Ext.A empowers/authorizes defendant No.3 to sell the suit property and execute the deed of conveyance; and (iii) the scribe has made a declaration to the effect that he has read over and explained the contents of Ext.A to the plaintiff who put her signature on being satisfied. Further, it appears from Ext.A that the plaintiff had put her signature in Odia as the principal. 13. There is no quarrel that the plaintiff is a Paradanasin lady. Thus, onus is on the defendants, who derived the benefits out of the deed executed by the plaintiff, i.e., Ext.A, to prove and establish that the document was read over and explained to the plaintiff and thereafter, she put her signature after fully understanding the contents thereof. Law is no more res integra on this point. (See Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964) CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others, reported in AIR 1983 Orissa 172). Mr. Law is no more res integra on this point. (See Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964) CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others, reported in AIR 1983 Orissa 172). Mr. Pradhan, learned counsel for the respondents submitted that the contents of Ext.A was read over and explained to the plaintiff in Odia by the scribe and she put her signature after being fully satisfied with the said terms and recitals. Ext.A was admitted into evidence without any objection. Moreover, P.W.1, the plaintiff at paragraph-6 of her deposition, has admitted execution of Ext.A and registration thereof. She categorically admitted in her evidence that on the date of execution and registration of Ext.A, she had gone to the Sub-Registrar Office with her husband, namely, Purna Chandra Paikray. However, she deposed in her evidence at paragraph-10 that on enquiry, she found that in order to grab the entire property, the defendant No.3 has attempted to become the absolute owner by practising fraud and no consideration money as indicated in the alleged deed of sale has been paid to her. Though at paragraph-6 of her evidence, she admitted about execution of Ext.A, but in paragraph-7, she deposed that she does not know English and the entire fact of Power of Attorney having not been apprised to her, she signed the same on good faith and she was not aware of the details of said Power of Attorney. The execution of Ext.A is not disputed by the plaintiff. She only took exception to Clause-6 of the said Ext.A. The scribe, namely, Sri Kirti Chandra Swain, an Advocate of Bhubaneswar, had given his endorsement (as stated above), which makes it abundantly clear that Ext.A was read over and explained to the plaintiff in Odia and she had put her signature in the said deed being satisfied with its terms and conditions. The plaintiff does not challenge the endorsement given by the Scribe, Sri Kirti Chandra Swain. Further, defendant No.3 against whom allegations have been made that he had obtained Ext.A fraudulently, though filed his written statement did not come to the witness box to testify his statement on oath. Thus, the stand taken by defendant No.3 in his written statement cannot be taken into consideration. P.W.1 (plaintiff) in her evidence has categorically admitted that she was accompanied by her husband to the Sub-Registrar Office. Thus, the stand taken by defendant No.3 in his written statement cannot be taken into consideration. P.W.1 (plaintiff) in her evidence has categorically admitted that she was accompanied by her husband to the Sub-Registrar Office. Her husband is also an attesting witness to the Power of Attorney. Thus, she had an opportunity of independent advice in the matter. In that view of the matter, initial onus on defendant Nos.1 and 2 to the effect that Ext. A was read over and explained to the plaintiff and on being satisfied, she put her signature, is duly discharged. Accordingly, the onus shifts on to the plaintiff to prove that the contents of the deed was not read over and explained to her. At paragraph-6 of Nitei Sahu’s case (supra), this Court has held as under:- “6. It must, however, be made clear that if the plaintiff satisfies the Court, after evidence has been gone into, that she is either a puradanashin or an illiterate lady, then the onus would shift to the defendants to establish that the document was read over and fully explained to her and it was thereafter that she put her signature after fully understanding the contents thereof. In many cases the burden is a shifting one.” 14. Once the initial burden of proof is discharged by the defendants, onus shifts and heavily lies on the plaintiff to prove her contention as she challenges the solemnly executed registered document as fraudulent transaction. She has to prove the circumstances, which would establish that it was a fraudulent one. [See Parasnath Thakur Vs. Mohini Dasi (dead) and another, reported in AIR 1959 SC 1204 ] 15. The Plaintiff (P.W.1) in her evidence has not whispered a single word with regard to the manner of fraud committed on her. On the other hand, during cross-examination, she did not cooperate and also refused to recognize her signature and that of her husband on Ext.A, though she admitted execution of the same. The Plaintiff (P.W.1) in her evidence has not whispered a single word with regard to the manner of fraud committed on her. On the other hand, during cross-examination, she did not cooperate and also refused to recognize her signature and that of her husband on Ext.A, though she admitted execution of the same. Further, the specific pleading of the plaintiff to the effect that her husband was ill and confined to bed and was unable to look after the development of the land, for which the Power of Attorney was executed in favour of defendant No.3, cannot be accepted for the sole reason that her husband accompanied her to the Sub-Registrar Office and stood as an attesting witness to Ext.A. Admittedly, neither the Scribe nor the husband of the plaintiff was examined in the suit. Their examination could have thrown some light on the veracity of the statement of the plaintiff. In absence of the circumstances as shown above, only conclusion that can be drawn is that the plaintiff by virtue of Power of Attorney (Ext.A) had authorized defendant No.3 to alienate the suit land. Thus, I find no infirmity in the finding of the learned Trial Court in respect of issue No.(v). 16. The contention of the Mr. Pradhan to the effect that the genuineness of Ext.A cannot be called in question as no relief to that effect is sought for, cannot be accepted solely because the issue to that effect, namely, issue No.(v), has been framed; all the parties to the suit have led evidence and produced materials in support of their respective cases with regard to genuineness and binding effect of Ext.A. 17. The contention of Mr. Parija with regard to non-receipt of consideration money by the plaintiff cannot have any effect on the validity of the sale deed, i.e., Exts. 1 and 2 for the reason that the defendants 1 and 2 had paid the consideration money to defendant No.3 (the Attorney of the plaintiff) vide Exts.D to D/1. The pass book (Ext.E) and relevant entries dated 22.12.2004 (Ext.E/1) makes it abundantly clear that the consideration money was paid to defendant No.3 and the same was credited to the bank account of defendant No.3 as per Ext.E/1. Moreover, the deposition of D.W.1 (defendant No.1) to that effect is not challenged. In that view of the matter, the contention of Mr.Parija cannot be accepted. Mr. Moreover, the deposition of D.W.1 (defendant No.1) to that effect is not challenged. In that view of the matter, the contention of Mr.Parija cannot be accepted. Mr. Parija further contended that the plaintiff-appellant is in possession over the suit land and the same has not been delivered to the defendants 1 and 2 pursuant to Exts. 1 and 2 (Exts. B and C). In order to testify the veracity, I have gone through the recitals of registered sale deeds marked as Exts. B and C. The sale deeds in clear and unambiguous terms reveal that the delivery of possession was given to defendant Nos.1 and 2 pursuant to execution of the same. Further, after purchase of the suit land, the defendants 1 and 2 got the land mutated in their name and the ROR was corrected accordingly as per Exts.F and G. After correction of ROR, Khata numbers were corrected as 813/1362 and 813/1361 respectively in favour of defendant Nos.1 and 2. Ext. H series (Ext. H to H/9) disclose that defendant Nos.1 and 2 have been paying land revenue in respect of the suit land. Ext.J to J/9 disclose that they have been paying holding tax in respect of the suit land. Defendant nos.1 and 2 have also taken electricity connection and have been paying the electricity dues, which is apparent from Ext.K to K/10. These documents were admitted into evidence without any objection. The statement on oath of D.W.1 with regard to the veracity of the aforesaid exhibits was not challenged. In that view of the matter, it is very difficult to accept the contention of Mr.Parija to the effect that the plaintiff still retains the possession of the suit land with her. All these documents amply prove that defendant nos.1 and 2 are in possession over the suit land pursuant to execution of Exts. 1 and 2 and are exercising their right, title and interest thereon. Mr. Parija further contended that the pleadings of defendant No.3 in his written statement goes uncontroverted as the defendant nos.1 and 2 did not file any additional written statement challenging the same. Thus, the relief sought for by the plaintiff should be granted being upon the pleadings of defendant No.3 following the doctrine of non-traverse as enumerated in 38 (1972) CLT 110. Mr. Pradhan strongly refuted the same contending that it was beyond the scope of the suit for adjudication. Thus, the relief sought for by the plaintiff should be granted being upon the pleadings of defendant No.3 following the doctrine of non-traverse as enumerated in 38 (1972) CLT 110. Mr. Pradhan strongly refuted the same contending that it was beyond the scope of the suit for adjudication. On perusal of the pleadings in the written statement of defendant No.3, it appears that he had narrated a completely different story than that of the plaintiff. However, he had supported the plea of the plaintiff to the effect that Ext.A was an outcome of misrepresentation. The defendant No.3 has not come to the witness box to testify his statement made in his written statement. Thus, the story narrated by him cannot be taken into consideration and the plaintiff cannot take any advantage of the same. She could have succeeded on the strength of her own case. Thus, the contention of Mr. Parija merits no consideration. 18. In the facts and circumstances of the case stated above, I find no infirmity in the findings of the learned 1st Additional Civil Judge (Senior Division), Bhubaneswar and accordingly, I confirm the same. The appeal being devoid of any merit is dismissed, but in the circumstances, there shall be no order as to costs.