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2016 DIGILAW 549 (ORI)

M. Krishna v. P. K. Majhi

2016-07-22

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Rayagada in T.A. No. 18 of 2005 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Rayagada in Title Suit No. 10 of 1998. The appellants as the plaintiffs had filed the suit for declaring the sale-deed dated 05.06.1970 as void and as having created no right, title and interest in favour of the defendants nor there remains the entitlement to possession in respect of the suit land bearing plot no. 55 by them, with further prayer of permanent injunction against the defendants, their relations, agents etc. in not interfering with the peaceful possession and enjoyment of the said land by the plaintiff-appellants. The suit having been dismissed, they had carried appeal under section 96 of the Code of Civil Procedure. The lower appellate court since has affirmed the findings of the trial court and thus confirmed the judgment and decree impugned before it, the present move is by filing the second appeal under section 100 of the Code. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs case is that the suit land stood recorded in the name of Manadangi Endu, Manadangi Somayya and Manadangi Chinnayya It is stated that Manadangi Endu, Manadangi Somayya and Manadangi Parayya were the three brothers. Among them Parayya died leaving behind his son Endu whose sons are plaintiff no. 1 to 3 who have succeeded to his interest. Somayya died leaving behind the plaintiff no. 4 as his only son and successor. It is stated that suit land belonged to the joint family of three brothers, wherein each had 1/3rd share. It is also stated that after the death of Paraya and Somayya, the plaintiffs have been in possession of the suit land. Parayya is said to have died 20 years prior to the suit whereas Somayya 15 years before. It is stated that suit land belonged to the joint family of three brothers, wherein each had 1/3rd share. It is also stated that after the death of Paraya and Somayya, the plaintiffs have been in possession of the suit land. Parayya is said to have died 20 years prior to the suit whereas Somayya 15 years before. It is their case that in the year 1998, they had cultivated the suit land having sown paddy seedlings and it is alleged that on 26.07.1998, the defendants came over the land and staked the claim that their father had purchased the same and hence they would not allow anyone to have cultivation operation anymore so far as suit land is concerned. As this came as a surprise to the plaintiffs, they made necessary inquiry concerning the record of the suit land. It was found that the suit land had neither been mutated in the name of the defendants nor in the name of their father. However, they could notice a sale-deed purported to have been executed by Chinnayya, his son Simhadri and grandson, a minor represented by Simhadri on 05.06.1970 in favour of the father of the defendants. This sale is attacked as invalid and not binding on the plaintiffs. The plaintiffs claim to have 2/3rd interest over the suit land. It is further stated that Simhadri and son Mohan being not parties to the sale-deed, the same does not bind them in so far as 1/6th interest is concerned. The said sale transaction is stated causally to be not genuine. They also in an evasive manner have raised doubt over the genuineness of the sale-deed in view of the conduct of the father of the defendants as well as defendants in remaining silent for such a long period without any step being taken by them for mutation or in carving out the share of their vendors by way of institution of a suit for partition. It is lastly mentioned that the description of the land in the sale-deed does not relate to the land under plot no. 55 or any portion thereof. The plaintiffs next case is that there being no partition by metes and bounds amongst the three branches i.e., Paraya. It is lastly mentioned that the description of the land in the sale-deed does not relate to the land under plot no. 55 or any portion thereof. The plaintiffs next case is that there being no partition by metes and bounds amongst the three branches i.e., Paraya. Somayya and Chinnayya and all the lands having remained joint, the sale of land in specific by anyone of the members of the family is impermissible in the eye of law. They also state that there was no necessity for any such sale and by the said sale, neither the family has been benefited nor even the members of that particular branch. Thus, it is their case that without partition, the sale as made even if is said to be valid, the same cannot stand as such in respect of the particular land as described therein so as to clothe the defendants with title in respect of that very property. It is also stated that the defendants have to work out the equities in a partition suit placing all the joint family properties for the purpose. 4. The defendants on the other hand pleaded that while Chinnayya was alive, the ancestral property was divided amongst them and were in separate mess and estate. Thus, they deny that the three families were jointly cultivating the lands remaining under joint mess and estate. It is stated that three brothers namely Parayya, Somayya and Chinnayya had divided the properties in three equal shares and each one was in possession of the land separately falling to his share. It is also pleaded that Parayya after partition shifted to village New Attada. The partition as above is stated to be an oral partition. Next they state that Chinnayya with his son Simhadri and grandson Narahari in order to meet their legal necessity to clear up the previous loan, sold the suit property to the father of the defendants on 27.06.1970 and had delivered the possession of the same to him who continued as such till his death in the year 1980 and thereafter, the defendants are in possession of the suit land. Being members of Scheduled Tribe hailing from rural background as they were in possession of the property, paying rent, they had not gone for mutation of the land having not so seriously thought in that light. Being members of Scheduled Tribe hailing from rural background as they were in possession of the property, paying rent, they had not gone for mutation of the land having not so seriously thought in that light. However, it is asserted that the plaintiffs never possessed the suit land. Thus, they claim to be having the title over the suit land. 5. Faced with such rival pleadings, the trial court framed as many as nine issues. Going to issue no. 4 as regards the identity of the suit land analyzing the evidence of witnesses examined from both sides, clear finding has been rendered after verifying the village map that the suit land is well identifiable. Then proceeding to the crucial issues on the prior partition, allotment of the suit land in the share of Chhinnaya and consequently the validity of the sale-deed, examining the evidence both oral and documentary as placed by the parties, the final answer that has been recorded is that the plaintiffs have no right, title, interest and possession over the suit land. On the contrary deciding the next issue, the right, title, interest and possession of the suit land has been found to be resting with the defendants. With all these above, when the suit stood dismissed, the plaintiffs being unsuccessful before the trial court had carried an appeal. The lower appellate court in view of the challenge to the findings on the crucial issue as is seen from the judgment having taken up the examination of evidence independently and viewing the rival claim has at the ultimatum dismissed the appeal which has led to non-suit the plaintiffs. Thus, now the plaintiffs having been unsuccessful in both the courts below have taken the resort of the provision of section 100 of the Code of Civil Procedure in filing this second appeal seeking interference with the concurrent findings and the result thereof. 6. Learned counsel for the appellants submits that the sale in question being without the consent of all the members of the joint family and the subject matter of the sale being a portion of the joint family property, the same ought not to have been held to be valid as to have clothed the father of the defendants with the title in respect of the land so covered under the sale deed. According to him, on proper appreciation of evidence, no finding can be rendered that there was prior partition between the three branches with allotment of specific lands as of their shares which suffers from the vice of perversity. Moreover, the sale in the year 1970 under no circumstance can stand valid in respect of specific land as described therein and thus accepting the possession of the suit land by the plaintiffs, the courts below ought to have at least granted a decree for permanent injunction in favour of the plaintiffs till the regular partition of the properties between the parties by metes and bounds. According to him, these are the substantial questions of law which surface in the case which stands for answer. 7. Learned counsel for the respondents submits all in favour of the findings of the lower appellate court. According to him, upon elaborate discussion of evidence, the lower appellate court which is the final court of fact has rightly held the sale in favour of the father of the defendants to be valid and to have clothed him with the right, title and interest in respect of the suit land and accordingly the same having been confirmed resulting the dismissal of the suit, this Court in the second appeal is not to interfere with the same even if it is found that another view may also to be taken. According to him, the findings are not at all the outcome of perverse appreciation of evidence and thus call for no interference. 8. The triumph card for the defendants are two documents Ext. A and B, the registered deed of mortgage of the year 1967 and sale-deed of the year 1970 which at the time of being tendered in evidence in the year 1995 were more than 30 years old. The documents have come to be produced from proper custody. The three brothers Parayya, Somayya and Chinnayya were dead by the time of institution of the suit so also all the parties to the said oral partition which the defendants plead in support of their case. Undeniably, the parties to the documents Ext.A and B are also dead. Ext.A is a registered deed of mortgage said to have been executed by M. Chinnayya and his son in favour of the father of the defendants in respect of the suit land way back in the year 1967. Undeniably, the parties to the documents Ext.A and B are also dead. Ext.A is a registered deed of mortgage said to have been executed by M. Chinnayya and his son in favour of the father of the defendants in respect of the suit land way back in the year 1967. It is signed by Somayya, Endayya and three other witnesses. As per the settled position of law, when execution of such document is not denied, there remains no necessity to call and examine the attesting witnesses to give evidence for establishing the factum of execution and attestation to support the said deed as to stand in the eye of law for its acceptance. In the instant case, Endayya and Somayya are among the attesting witnesses. Therefore, they being the witness to the document which involves their proprietory interest, their knowledge to the contents has to be presumed and that of course being rebuttable, it is required to be rebutted to show otherwise by leading acceptable evidence. When a person stands as a witness having no interest on the subject matter and another having interest, in the former case, no presumption as to his knowledge as regards the contents of the said document can be raised; where as in the latter initial presumption very much stands to that effect which has to be rebutted in showing the ignorance of said witness about such contents of the document or otherwise explaining the circumstances through evidence so as to wriggle out. 9. The lower appellate court having differed with the finding of the trial court on the issue of prior partition holding it to have not been the fact, has of course gone to hold the transaction under Ext. ‘B’ to be valid clothing title over the suit land upon the vendee. Having taken some factors which rather stand admitted and those are (i) the plaintiff no. 5 and 6 have not called in question said sale-deed Ext. B within the period of limitation after cessation of their disability i.e. minority; (ii) the suit being filed long after the expiry of above period of limitation; (iii) the sale deed, Ext. B being for the purpose of clearing the mortgage dues which finds support from Ext. 5 and 6 have not called in question said sale-deed Ext. B within the period of limitation after cessation of their disability i.e. minority; (ii) the suit being filed long after the expiry of above period of limitation; (iii) the sale deed, Ext. B being for the purpose of clearing the mortgage dues which finds support from Ext. A, the deed of mortgage towords incurring the loan and (iv) M. Chinnayya and his son Simhadri have not challenged the transaction during their lifetime and it has also held the sale to be binding on the plaintiffs as no other direct evidence is expected to be available in support of the legal necessity for the sale executed by the M. Chinnayya and his son. Learned counsel for the appellant submits that it being not an issue, the lower appellate court has gone to invent a third case for the defendants. It may be kept in mind that here the sale under Ext. B is under challenge after lapse of 28 years. The ground of attack is that the sale is without partition. In such factual backdrop, the sale-deed itself when reflects the recitals of legal necessity for which no direct evidence is expected to be tendered by the party supporting the transaction, the court certainly in my considered view can look into that aspect even without a specific issue on that score. Here the challenge to the sale is not on its genuineness with necessary pleadings but mainly the attack is on its permissibility in the absence of partition. The lower appellate court thus, in my considered opinion has rightly gone to look into and examine the validity of the said transaction on that ground and that under no circumstance can be said to have given the plaintiffs a surprise or to have caused any such prejudice. The framing of issue in specific for deciding the validity or otherwise of the sale deed on that ground is not necessary and the plaintiffs cannot raise any grievance for that reason. In this way it is rather seen that the lower appellate court has gone to rectify the mistake committed by the trial court in omitting to consider the same by losing sight of it. Thus, the approach and examination of evidence in the backdrop of the rival case is found to be just and proper. In this way it is rather seen that the lower appellate court has gone to rectify the mistake committed by the trial court in omitting to consider the same by losing sight of it. Thus, the approach and examination of evidence in the backdrop of the rival case is found to be just and proper. Therefore, the finding on that score as recorded by the lower appellate court in no way is found to be a flawed one. In view of the aforesaid discussion and reasons, the submission of the learned counsel for the appellants that there arises any substantial question of law in the case fails. The appeal thus does not merit admission. 10. Resultantly, the appeal stands dismissed. No order as to cost.