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2016 DIGILAW 511 (ORI)

Sukadev Panda v. Mukunda Prasad Panda

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned District Jude, Balasore in R.F.A. No.7 of 2011 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Soro in Title Suit No.1250 of 2001. The appellant as the plaintiff had filed the suit arraigning the respondents as the defendants for declaration that he and defendant no.6 jointly have the right, title and interest over the suit property with further prayer for permanent injunction for restraining the respondent nos.1 to 5 (defendants) to interfere with the possession of the suit land. The suit having been dismissed, the appellant as the unsuccessful plaintiff had filed the appeal under section 96 of the Code of Civil Procedure. That appeal having also been dismissed, the present move is before this Court by filing the second appeal under section 100 of the Code of Civil Procedure. 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 court below. 3. Plaintiff’s case is that the suit land is their joint undivided ancestral property devolving upon the plaintiff and defendant no.6 on the death of their father. It is stated that they have possessed the suit land jointly by paying the rent. It is also the case of the plaintiff that after the death of his father, he and his brother-defendant no.6 were not in proper state of mind as they lost their father at a very young age. It is further alleged that defendant nos.1 to 5 having colluded have created fraudulent registered sale deed with the help of the scribe behind their back forging their signatures and thumb impressions and by impersonation. It is stated that there was never any execution of registered sale deed by them knowingly in favour of defendant nos.1 to 5 nor was there any necessity for the same. They have also not received the consideration amount for the said transaction. As on 05.10.1998, the defendant nos.1 to 5 came over the suit land to evict the plaintiff and defendant no.6 disclosing that they have purchased the suit land, the suit has been filed. The defendant no.6 who is the brother of the plaintiff having filed his written statement has not gone to support the case of the plaintiff in any respect. The defendant no.6 who is the brother of the plaintiff having filed his written statement has not gone to support the case of the plaintiff in any respect. His stand is fully in support of the case of the defendant nos.1 to 5. Further defendant nos.1 to 5 in the written statement besides raising the technical objections for dismissal of the suit in as much as the suit being barred by limitation, bad of misjoinder of parties and mis-joinder of cause of action have next asserted that on 13.05.1969, the plaintiff and defendant no.6 had sold the land described in Lot-1 of ‘Ka’ schedule measuring Ac.0.58 dec to one Dayanidhi Das for consideration of Rs.700/- and had delivered possession of the same to him. It is stated that Dayanidhi being in possession as the owner on 28.03.1973 transferred half of the land to defendant nos.2, 3 and 4 for valuable of consideration who have also mutated the said purchased land in their favour. It is further stated that Dayanidhi on 28.03.1974 also transferred the rest of the land to the defendant no.5 who has got his purchased land accordingly mutated. It is their case that plaintiff and defendant no.6 also sold Lot No.2 of ‘Ka’ schedule property to one Arta Bhanjan Mishra on 02.04.1971 and had delivered possession of the same. Said Arta Bhanjan while in possession of its owner has again sold the land by registered sale deeds dated 07.04.1972 and 30.06.1972 to defendant no.1 and has delivered possession of the land to him. Whereafter he has got the land mutated in his name. They state that the plaintiff and defendant no.6 have thus no right over ‘Ka’ schedule property and the suit has been filed depicting all imaginary story only to harass the defendants and for unlawful gain. 4. The trial court faced with such rival pleading framed in total seven issues and rightly taking up issue nos.5 and 6 and then issue no. 3, which concern with right, title and interest of the plaintiff over the suit land and their possession as claimed has answered on evaluation of evidence against the plaintiff, thus holding the sales to be valid and operative in finally saying that the plaintiff and defendant no.6 have no right, title and interest over the suit land. 3, which concern with right, title and interest of the plaintiff over the suit land and their possession as claimed has answered on evaluation of evidence against the plaintiff, thus holding the sales to be valid and operative in finally saying that the plaintiff and defendant no.6 have no right, title and interest over the suit land. The lower appellate court being moved by the unsuccessful plaintiff having gone to examine the sustainability of the above finding of the trial court has ultimately affirmed all those. Accordingly the trial court’s order of dismissal of the suit has been upheld in the first appeal. Therefore, the present move is before this Court by filing this appeal under section 100 of the Code of Civil Procedure. 5. Learned counsel for the appellant submits that the courts below have erred in law by answering the crucial issue regarding execution of the sale deeds and that those have clothed the defendants with the title in respect of the suit land. That, according to him, is contrary to the weight of the evidence on record which has not been discussed in detail by the first appellate court in affirming the findings and there has been no independent examination of the same at its level. These, according to him, are the substantial questions of law which arise in the case for their certification for the purpose of the admission of the appeal. 6. Learned counsel for the defendant entering suo motu appearance submits all in support of the findings of the courts below. According to him, the plaintiff having challenged the sale deeds executed by himself and defendant no.6 on the ground that the same were by practicing fraud by putting forged signatures and thumb impressions and by way of impersonation, the burden of proof was lying upon them and that having not been discharged in any way establishing those facts or even any other circumstances so as to even infer in that light, the findings are unassailable. He, therefore, submits that the concurrent finding of fact that the plaintiff and defendant no.6 are having no right, title, interest and possession over the suit land having been recorded after detail examination of evidence and their critical analysis, this Court in seisin of the second appeal should not interfere with the same, when the same do not suffer from the vice of perversity. 7. 7. The sale deeds are of the year 1971 and 1972 when the plaintiff and defenantno.6 were major and they were within the age group of 30-40 years. The sale deeds have been admitted in evidence and marked as Exts. B, C and D. Mutations have been carried out in favour of the respective purchasers in the records of rights pursuant to these sale deeds. The defendants claim to have been in possession of the land each and paying rent to the State. The deeds, in question, being of the year 1971-72, the suit has come to be filed during the year 2001. The documents being the registered documents necessary sanctity and presumption of their due execution remains attached to those. The plaintiff when has raised the ground of pre-petition of fraud by forging the signatures and thumb impressions by the defendants and impersonating them, no such evidence is forthcoming from the side of the plaintiff. One of the executants, i.e., defendant no.6 has gone to support the factum of execution of the deeds. There is no evidence pursuant to any foundation in the pleading that this defendant no.6 is in collusion with other defendants. 8. It is the settled law that the charge of fraud like any other charge of criminal offence, whether made in civil or criminal proceeding must be established by leading, clear, cogent and acceptable evidence. The plaintiff having called in question the sale deeds executed by himself and defendant no.6 in favour of defendant nos.1 to 5 has not led any such evidence. Furthermore, when the said documents are also 30 years old, due presumption of their execution further stands when the execution by one of the co-executants is admitted. The courts below in the existing state of affair in evidence are found to have committed no fault in recording the findings on the crucial issues against the plaintiff by disentitling him to the relief of declaration of his right, title and interest over the suit land with the defendant no.6 as prayed for. The courts below in the existing state of affair in evidence are found to have committed no fault in recording the findings on the crucial issues against the plaintiff by disentitling him to the relief of declaration of his right, title and interest over the suit land with the defendant no.6 as prayed for. The concurrent finding of fact on above aspects when are found to be not suffering from the vice of perversity and when this Court is of the considered view that there remains no such legal flaw in recording such findings, the submission of learned counsel for the appellant that there arises substantial question of law in this case for admission of appeal fails. The appeal thus does not merit admission. 9. In the result, the appeal stands dismissed. No order as to cost.