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2016 DIGILAW 550 (ORI)

Pramila Behera v. Rama Bose

2016-07-22

D.DASH

body2016
JUDGMENT : The appellant in these appeals calls in question the judgments followed by decrees passed by the learned District Judge, Puri in R.F.A. Nos.130 of 2006, 131 of 2006 and 132 of 2006 arising out of Civil Suit No.261 of 2002 on the file of the learned Civil Judge (Sr. Division), Puri. This appellant as the plaintiff had filed the above suit for declaration of her title over the suit schedule land and permanent injunction restraining the respondent nos.1, 2 and 3 who were the defendant nos.1 to 3 in the suit from interfering with her possession over the same. The respondent no.1 had filed a counter claim seeking declaration of her title over a portion of the suit schedule property. Defendant nos.4 to 9 having impleaded themselves as parties had also filed counter claim staking their title over the rest of the suit property. Learned Civil Judge (Sr. Division), Puri dismissed the suit and allowed the counter claims. So, this appellant as the unsuccessful plaintiff being aggrieved by the said judgment and decree filed three above noted first appeals under section 96 of the Code of Civil Procedure in the Court of the learned District Judge, Puri. All the three appeals having been dismissed, the said unsuccessful plaintiff as the appellant has thus filed these three second appeals 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 the suit schedule property measuring Ac.0.50 dec. appertaining to Sabik Plot No.800 in part under Khata No.70 of Mauza-Balukhanda corresponding to Hal Plot No.802 under Khata No.218 of Mauza-Talabania in the town of Puri along with other property originally belonged to one Susilabala Dasi w/o Ramakanta Bose and one Nityananda Bose being recorded as Nijchas intheir name in the record of right of the year 1927-28. The property finally vested with the State free from all encumbrances when the Orissa Estate Abolition Act came into force. Subsequently, the same stood settled in their name in OEA Claim Case No.2/1956-57. It is stated that Susilabala Dasi and Nityananda thereafter partitioned those properties and in the said partition, the land under Plot No.800 appertaining to Khata No.70 (Sabik) measuring an area of Ac.8.43 dec. Subsequently, the same stood settled in their name in OEA Claim Case No.2/1956-57. It is stated that Susilabala Dasi and Nityananda thereafter partitioned those properties and in the said partition, the land under Plot No.800 appertaining to Khata No.70 (Sabik) measuring an area of Ac.8.43 dec. of which the suit land is a part fell to the share of Susilabala Dasi. She then alienated different portions of land from out of it to different persons by executing 101 sale deeds. The land sold thereby came to Ac.8.11 dec. One Namita Chaterjee was one of such vendors. She had purchased the suit land measuring Ac.0.50 dec. by registered sale deed dated 29.07.1963 (Ext.2). Being delivered with the possession of the suit land, she possessed the same till she transferred it to the plaintiff by registered sale deed dated 30.04.1999 (Ext.3). Said Namita had taken the step to get the land recorded in her name during the settlement operation and had fought the litigation with the revenue authorities for the said purpose. Finally, the draft record of right had been so prepared in her name. The said suit land stands recorded as a separate plot bearing no.802 under Khata No.281. The plaintiff claims to have developed the said land and as such to be in possession of the same. It is alleged that the defendant no.1 has raised a false claim that out of the said property she had purchased Ac.0.08½ dec. from the legal heirs of Nityananda, namely, Raghebendra Bose-defendant no.7 and Renabendra Bose-defendant no.8 by registered sale deed dated 02.11.1988 and another piece of equal extent of land from Radhakanta Bose s/o Susilabala Dasi by registered sale deed dated 02.11.1988. The plaintiff attacks these transaction to be bogus and as such to have conveyed no title in respect of the land to the defendant no.1 in respect of the properties described in those sale deeds. With the allegation that defendant no.1 with her husband-defendant no.2 tried to dispossess her on the strength of those invalid sale deeds, the suit has come to be filed. 4. The defendant no.1 contested the suit by filing written statement. The defendant nos.4 to 9 claiming themselves as the legal heirs of Susilabala and Nityananda having got themselves impleaded as parties in the suit filed their written statement. 4. The defendant no.1 contested the suit by filing written statement. The defendant nos.4 to 9 claiming themselves as the legal heirs of Susilabala and Nityananda having got themselves impleaded as parties in the suit filed their written statement. They admitted that the suit land originally belonged to Susilabala and Nityananda and that it had been settled in their name jointly in the OEA proceeding. However, they seriously disputed the factum of partition between Susilabala and Nityananda as pleaded in the plaint to have taken place after the settlement and consequently the pleading of the plaintiff that the land under Sabik Plot No.800 of which the suit property is a part to have fallen to the share of Susilabala who sold it to Namita and delivered possession of the same as also the plaintiff to have purchased the property from Namita and to have remained in possession. Their case is that all those transactions are fake in order to grab the suit land. While denying the title of the plaintiff over the suit land they have projected a case that the land under Plot No.800 (Sabik) stood jointly recorded in the name of Susilabala and Nityanada and out of the same barring the land to the extent of Ac.0.69 dec. the rest had been sold. It is stated that this extent of land, i.e., Ac.0.69 dec. remained in joint possession of Radhakanta s/o Susilabala who is the husband of defendant no.4 and father of defendant nos.5 and 6 as also Raghebendra and Ranabednra the grandson of Nityananda. Thus, it is stated that since the successors of Susilabala had 50% share over it with equal extent of share remaining with the successors of Nityananda, two sale deeds had been executed on 02.11.1988 vide Ext.B-2/2 and Ext.B/2 covering land of Ac.0.08½ dec. each selling those to defendant no.1. It is stated that defendant no.1 being delivered with the possession of the said land continued to remain as such as its rightful owner. This purchased land under both these sale deeds have been described in schedule ‘A’ of the written statement and it may be stated that the same is a part of the suit land shown in the plaint. The rest of the land finds described in schedule ‘A’ of the written statement of defendant no.4 to 9 forming a portion of the left out land of Ac.0.69 dec. The rest of the land finds described in schedule ‘A’ of the written statement of defendant no.4 to 9 forming a portion of the left out land of Ac.0.69 dec. which is said to have been in their possession. The defendant nos.4 to 9 as such claim to be in possession of land measuring Ac.0.33 dec. as described in schedule ‘A’ of their written statement. Thus, they all deny the title and possession of the plaintiff over the same and claim title over the land described in their respective written statement as its rightful owner in possession. The plaintiff in response to the counter claim again asserted the factum of the partition as pleaded in the plaint in finally saying that Susilabala had no land left under that plot for being sold and over which the defendants claim the right, title and interest. 5. In view of the above rival pleadings the trial court framed in total thirteen issues. Going to decide issue no.1 concerning the plaintiff’s right, title and interest over the suit land in question, on evaluation of evidence, both oral and documentary, finding has been rendered against the plaintiff that she has failed to prove her title over the suit land. So, this finding has practically resulted the dismissal of the suit. Next the finding of the trial court on issue nos.8 and 10 which concern with the counter claim of defendant no.1 on one hand on a portion of the suit land described in schedule ‘A’ of her written statement and those of defendant nos.4 to 9 claiming title over the portion of the suit land described in schedule ‘A’ of their written statement, finding having been rendered in favour of the defendant no.1 as also the defendant nos.4 to 9, the counter claims have been allowed. 6. The plaintiff being aggrieved by such dismissal of her suit as well as also the grant of relief of declaration of right, title and possession over portions of land in favour of defendant no.1 as described in her written statement and defendant nos.4 to 9 as shown in their written statement, filed three first appeals. Those having been heard together have been disposed of by common judgment followed by decrees. The first appellate court considering the submission raised before it as mandated under law has formulated a consolidated point for determination. Those having been heard together have been disposed of by common judgment followed by decrees. The first appellate court considering the submission raised before it as mandated under law has formulated a consolidated point for determination. In going to answer the said point by addressing the rival contention raised before it upon analysis of evidence in the backdrop of the rival pleadings as also discussing the legal position as is seen has taken an independent view which has ultimately gone to put the seal of approval to the judgment and decree passed by the trial court. The first appellate court thus refused to interfere with the judgment and decree impugned before it in dismissing the suit as also allowing the two counter claims, one laid by defendant no.1 and the other one by defendant nos.4 to 9. The plaintiff thus having been unsuccessful in getting the reliefs as prayed for in her suit as also being unsuccessful in resisting the two counter claims as aforesaid has moved this court carrying these three second appeals. 7. The above noted second appeals have been admitted by order dated 02.11.2012 on the substantial questions of law which are the followings: “(1) Whether in setting aside the registered sale deeds dated 29.07.1963 vide Ext.2 and 304.1999 vide Ext.3 the courts below have violated provision under section 44 of Transfer of Property Act? (2) Whether the courts below were justified in ignoring the Exts.2 and 11 when the documents were marked exhibits without objection and were 30 years old documents? (3) Whether the counter claims were time barred?” 8. It is pertinent at the place to state that respondent nos.1 and 4 of R.S.A. No.352 of 2009 who is the respondent no.4 in R.S.A. No.353 of 2009, namely, Ramakanta Bose died during pendency of this appeal on 06.11.2012. Similarly, respondent no.6 of R.S.A. No.352 of 2009 and respondent no.9 of R.S.A. No.353 of 2009, namely, Kuntala Bose died during the pendency of this appeal on 04.06.2010. The appellant instead of coming forward with necessary application for substitution of the legal representatives of the said deceased-respondents had filed two petitions for causing appropriate enquiry at this stage to find out as to whether those deceased respondents are having any legal representative or not, besides those who are already parties to these appeals. The appellant instead of coming forward with necessary application for substitution of the legal representatives of the said deceased-respondents had filed two petitions for causing appropriate enquiry at this stage to find out as to whether those deceased respondents are having any legal representative or not, besides those who are already parties to these appeals. The move was resisted by respondent nos.1 to 3 and a memo was filed from their side that all the legal representatives of those deceased-respondents are already on record. So, accepting the same without further progressing in the matter, their name stood expunged as dead and on the consent of the learned counsel for the parties, these appeals have been heard together for their disposal by this judgment, which would govern all the three appeals. 8. I have heard learned counsel for the parties at length and they have also filed their respective written note of submission which have been placed on record. 9. Learned counsel for the appellant has advanced the following contentions: (A) that in view of the rival case of the parties there ought to have been a issue in specific as regards the identity and topography of the disputed plot in view of the fact that when the parties admit that land of Ac.0.17 dec. was purchased by defendant no.1 on 02.11.1988 from out of the unsold area Ac.0.69 dec., it becomes clear that the land under Plot No.802 comprising an area of Ac.0.50 dec. is distinct and separate from out of the land under plot no.802/1992 measuring an area Ac.0.17 dec. Thus in the absence of any specific issues the parties have not laid any evidence nor there remains any evidence on record so as to form a foundation for the decision with regard to the identity of the land; (B) that it having not been specifically pleaded that Radhakanta is the son of Susilabala and when the sale deed-Ext.B/2 executed by Radhakanata is seen to have been so executed in the capacity of son of Susilabala, there ought to have been a specific issue as regards the son ship of Radhakanta and the plaintiff in that event could have adduced evidence that Radhakanta being not the son of Susilabala as such he has not derived any title in respect of the properties as also having the entitlement to transfer the land under Ext.B/2. (C) that the courts below erred both in law and fact by not holding that there was a partition between Susilabala and Nityananda and the suit property had fallen to the share of Susilabala who had alienated a portion to Namita from whom the plaintiff has purchased. The finding on this score by the courts below is said to be perverse without taking into consideration the material evidence on record. (D) that the evidence on record are wholly insufficient to allow the counter claims of defendant no.1 as also the counter claim of defendant nos.4 to 9. (E) that the courts below have fallen in grave error of law by attaching no importance to the two sale deeds, the Exts.2 and 3 and also by ignoring Ext.11: In summing up, he contended that even if this Court finds that no specific issues as above are required to be framed yet the evidence on record clearly justify the grant of relief as prayed for by the plaintiff-appellant and also disentitled the defendants for being granted with the reliefs prayed for in their respective counter claims. 10. Learned counsel for the respondents in supporting the concurrent findings of the courts below holding the plaintiff to have failed to establish her title over the suit property and on the other hand finding the defendants to have their title over the properties as they have claimed in their respective written statements contended that these two documents, i.e., registered sale deeds as projected by the plaintiffs (Exts.2 and 3) are wholly useless and not having the wroth even of the paper written on. According to him, the examination of the matter in this light would suffice the purpose and the substantial questions of law as framed would no more even survive for receiving any answer. In order to buttress his contention as above, he has placed the factual aspect of the case as also has drawn the attention of this Court to the evidence on record. Although he submitted in response to the points raised by the learned counsel for the appellant that those are not acceptable in the facts and circumstances of the case yet with vehemence he contended that his first submission being taken into consideration and upon due appreciation, it would bulldoze the case of the plaintiff. 11. Although he submitted in response to the points raised by the learned counsel for the appellant that those are not acceptable in the facts and circumstances of the case yet with vehemence he contended that his first submission being taken into consideration and upon due appreciation, it would bulldoze the case of the plaintiff. 11. Faced with the above submissions, this Court feels it proper at the outset to address the first limb of contention raised by the learned counsel for the respondents. For the purpose even at the cost of repetition for proper appreciation some factual aspects of the case are required to be placed and that in my considered view would make the things more clear and the discussion more pinpointed and focused. The suit property with other properties in that Mauza-Balukhanda were belonging to Susilabala and Nityananda and admittedly having equal interest as per family partition in the year 1913 as seen from Ext.B-1 and H-1. The records have been published by the settlement authority in the year 1927-28 as is seen from Ext.C-2. During then the property measuring Ac.8.43 dec. under Sabik Plot No.800, Khata No.70 stood settled in the name of Susilabala and Nityananda as Nijchas vide Ext.D-2. Thereafter, in the year 1956-57 those were settled in their name jointly in accordance with the provision of Sections 6 and 7 of the O.E.A. Act by order in O.E.A. Case No.2 of 1956-57, i.e., Exts.E-2. Rent has also been accordingly paid. The defendant-Charu Patnaik purchased an area of Ac.0.08½ dec. from Radhakanta, the successor of Susilabala and land measuring Ac.0.08½ dec. from Raghebendra and others, the successors of Nityananda vide registered sale deed dated 02.11.1988 which have been admitted in evidence and marked as Ext.B-2/2 and A-2. 12. The plaintiffs claim to have purchased the property in the year 1999, i.e., the land measuring Ac.0.50 dec. by registered sale deed dated 30.04.1999 (Ext.3). The suit has been filed in the year 2002. Her case is that Namita had purchased it from Susilabala by registered sale deed vide Ext.2, i.e., dated 29.07.1963 and she asserts the exclusive ownership of Susilabala over the said property by virtue of a partition effected between Susilabala and Nityanada after the O.E.A. settlement, i.e., sometime after 1956-57. Admittedly, no documentary evidence concerning such partition as asserted is forthcoming. Her case is that Namita had purchased it from Susilabala by registered sale deed vide Ext.2, i.e., dated 29.07.1963 and she asserts the exclusive ownership of Susilabala over the said property by virtue of a partition effected between Susilabala and Nityanada after the O.E.A. settlement, i.e., sometime after 1956-57. Admittedly, no documentary evidence concerning such partition as asserted is forthcoming. This plaintiff thus claims the title through Namita who said to have derived the title from Susilabala having flown to her hands by sale deed dated 29.07.1963 (Ext.2). The sale deed is seen to have been executed by one Baikunthanath Chatterjee asserting himself as the power of attorney holder of Susilabala and it is mentioned that the said Susilabala had executed the power of attorney in his favour bearing no.62 of the year 1959 obviously for the purpose. The sale deed is shown to have been presented for registration before the District Sub-Registrar, Puri. Neither Baikunthanath nor Namita have come forward to depose in favour of the plaintiff nor even the very document, i.e., the power of attorney has been filed and proved. It is the settled position of law that the plaintiff has to stand on her own in establishing her case for the purpose of grant of the reliefs and the failure on the part of the defendant to prove his case or even the weakness of the case of the defense does not come to the aid of the plaintiff. Very interestingly in the case the eyebrows are raised when the documents such as Ext.W-2, Z-2, Z-2/1 and Z-2/3 proved from the side of the defendants are just glanced at. These are the certificate of information from the District Sub-Registrar, Puri and the Registrar of Assurance, Calcutta providing information that there remains no such power of attorney. Very interestingly in the case the eyebrows are raised when the documents such as Ext.W-2, Z-2, Z-2/1 and Z-2/3 proved from the side of the defendants are just glanced at. These are the certificate of information from the District Sub-Registrar, Puri and the Registrar of Assurance, Calcutta providing information that there remains no such power of attorney. When such evidence have been tendered from the side of the defendants, the plaintiff’s instead of countering those in establishing the genuineness and in support of the legal validity of those two sale deeds (Exts.2 and 3) neither has proved the power of attorney said to have been standing in favour of the so-called executant so as to establish that he had due authority to execute the sale deeds so as to convey the title in respect of the property covered under the sale deeds for the reasons based known to her nor proved the original sale deeds, i.e., one standing in the name of her vendor and the other one in her name and instead of the certified copies of those two sale deeds have been proved and now it is stated that the documents being 30 years old, those have to be accepted as placed. When the genuineness is called in question in the manner as above, the legal presumption under section 90 of the Evidence Act does not go to prove seal to such in genuineness to be protected. That is not the objective and purpose behind the enactment of the provision of section 90 of the Act. The provision cannot be taken advantage of in the peculiar facts and circumstances of the case and in view of specific challenge. Even then if we see Ext.2, it is really surprising to note that there is no mention therein as to where the said power of attorney was registered on the other hand it has been proved from the side of the defendants that such power of attorney was neither registered at Puri nor at Calcutta, which are only the two places, one being the place within whose jurisdiction the property in question situates and the other one is the native city of the executants where the document if any was to be registered. It is also not stated also as to if at any other place it was so done so that this evidence adduced by the defendants be of no avail. When such is the state of affair in evidence for adjudication of the claim of the plaintiff as placed, the plaintiff has withheld herself from being examined during the trial and the power of attorney holder of the plaintiff who has come to depose has stated that the entire plaint was drafted under the instruction of the plaintiff. Furthermore, this P.W.1 admits to have personal knowledge about the registration of Ext.3 yet his evidence when read in entirety and a cumulative view being taken, it can rather be said without least hesitation that he had no knowledge about the case. 12. In the instant case the documents Exts.2 an 3 forming the foundation of the case of the plaintiff are two certified copies of the sale deeds and those are secondary evidence. No doubt those have been admitted in evidence without objection. But when the same are attacked and seriously challenged on the above factual aspects telling upon the very genuinity and that those have been created by such practice and executed by a person having no valid authority, the presumption provision as contained in Section 90 of the Evidence Act and the presumption drawable under the circumstances thereunder, cannot come to the rescue so as to hold that by said sale deeds, the plaintiff has been clothed with the title in so far as the suit land is concerned. The presumption under section 90 of the Evidence Act always with regard to due execution. The flow of title by the first document (Ext.2) wherein the authority of Baikunthanath Chatterjee has thus not been established. So, it is wholly impermissible to hold that by such sale deed Susilabala sold the property to Namita and the consequential finding arises that no title having passed in favour of Namita, she had no right to alienate the property to the plaintiff and as such the plaintiff has failed to establish her case. Thus as per the admitted position and in view of aforesaid discussion, the final result recorded by the trial court in dismissing the suit and allowing the counter claims are to be confirmed. Thus as per the admitted position and in view of aforesaid discussion, the final result recorded by the trial court in dismissing the suit and allowing the counter claims are to be confirmed. In that view of the matter, the submission of the learned counsel for the respondent is found to be having great force and is thus accepted. This clearly leads me to say the substantial question of law as formulated thus no more survive for consideration so as to stand for being answered. 14. In the result, the appeals stand dismissed. No order as to cost.