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2016 DIGILAW 603 (ORI)

Laxmi Narayan Mohapatra v. Uttama Praharaj

2016-08-08

D.DASH

body2016
JUDGMENT : The appellants in this appeal challenged the judgment and decree passed by the learned 1st Additional District Judge, Cuttack in Title Appeal No. 107 of 1995 confirming the judgment and decree passed by the learned First Additional Civil Judge (Sr. Division), Cuttack in T.S. No. 496 of 1982. The respondent nos. 1 to as the plaintiffs had filed the suit for partition arraigning respondents no. 1 and 2 and the predecessor-in-interest of appellant no.3 and respondent no.5 as also the respondent no.4 as the defendants. The suit having been preliminarily decreed diving the properties in two equal share and allotting one such share to the plaintiffs so as to be equally divided amongst the plaintiff-respondents as also the respondent no.4, the defendant-appellants being aggrieved by it had carried the First Appeal. But the first appellate court has confirmed the judgment and decree passed by the trial court. Thus now the defendants being aggrieved by the judgment and decree of both the courts below, filed the Second Appeal under section 100 of the Code of Civil Procedure. 2. For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs in the plaint has shown the inter-se-relationship by the parties by providing the following genealogy. Dibyasingha (died 1973) Anam) Krupasindhu Chitrananda Netrananda (D-1-since dead Haramani (Adopted) (Adopted) (died 1961) Kusumapriya (P-3) Rabinarayan Laxminarayan Sashi Uttama Nirupama (D-2) (D-3) (D-7) (P-1) (P-2) Anam having died during the pendency of the suit, his legal representatives are now on record. In view of the notification under section 4 of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972, the suit in respect of the properties described in lot no.1 and lot no.2 of the plaint stood abated by order dated 07.11.1990 and it has only continued for the rest of the properties. 4. The suit stood confined at last in respect of the land described in Hal Plot nos. 11 and 13 measuring Ac 0.070 decimals and Ac 0.185 decimals respectively. The plaintiffs along with defendant no.7 claimed their entitlement to half share and interest over the same. It is stated that the above two numbers of plots as assigned in the current settlement correspond to sabik settlement plot nos. 11 and 13 measuring Ac 0.070 decimals and Ac 0.185 decimals respectively. The plaintiffs along with defendant no.7 claimed their entitlement to half share and interest over the same. It is stated that the above two numbers of plots as assigned in the current settlement correspond to sabik settlement plot nos. 1096 and 1097 and these were purchased by Anam, the original defendant no.1 and Netrananda, father of the plaintiff nos. 1 and 2, (the predecessor-in-interest of the plaintiffs and defendant no.7). The purchase is said to have been made under two registered sale deeds dated 19.09.1946 (Exts. 5 and 6) which were also Ext. T & U. It is stated that they had purchased the properties out of their own funds. But for name sake in the sale deeds Dibyasingh was shown as the vendee in the said purchase of the land from Biswanath and others as also from Tarini and others. Thus the plaintiffs claim to have equal interest over the land under those two plots along with defendant no.4 over one half share of it, and rest of the same is the entitlement of defendant nos. 2, 3 and 6. 5. Defendant no.1 who being alive then, has filed the written statement along with other defendants. It is their case that the suit land with which we were now concerned had been purchased from out of the income of defendant no.1 in the name of his father Dibyasingh and as such Netrananda’s branch has no share at all. It is stated that Netrananda’s financial condition was very bad, as such he had no scope for providing funds for the said purchase. This defendant no.1 claimed to have paid the entire consideration money for the above purchase under Exts. 5 and 6, and it is he who had purchased the properties merely in the name of his father while intending that he himself would be the absolute owner of the property by such purchase. 6. Faced with above rival pleadings the trial court as it appears has framed four issues, out of which issue no.3 is the important issue as this concerns with the right, title and interest of the plaintiffs over the suit properties in view of denial by the defendants. This issue no.3 has been rightly taken up and decided at first. 6. Faced with above rival pleadings the trial court as it appears has framed four issues, out of which issue no.3 is the important issue as this concerns with the right, title and interest of the plaintiffs over the suit properties in view of denial by the defendants. This issue no.3 has been rightly taken up and decided at first. The answer having been recorded in favour of the plaintiffs and defendant no.7, the consequential answer has accordingly followed on the next issue no.4 as regards the share over the said properties to the parties. The defendants have remained unsuccessful in getting the finding upset in the first appellate court. At this stage, it is felt absolutely necessary to state that there was an earlier suit filed by one Malati Dei, wife of Jagadish Mohapatra for declaration that she is the legal owner and entitled to possession of the land measuring Ac 0.060 decimals from out of sabik plot nos. 1096 and 1097 i.e. for a part of the land from these two plots which are now said to be the land corresponding to the assigned plot as per the current settlement record. In the said suit Anam, the original defendant no.1 here and his brother Netrananda who is represented by the plaintiff and defendant no.1 and their father Dibyasingha were the parties. The said suit had been decreed in terms of compromise with the compromise petition forming a part of the decree. Malati, the plaintiff therein relinquished her claim of title in respect of the disputed properties as described in that in favour of defendant no.2 of that suit who is none else other than the defendant no.1 in the present suit and who is now represented by these appellants and respondent no.5. 7. The appeal has been admitted on the following substantial questions of law : (i) Whether admissions made by a party in the pleadings of an earlier suit are binding against him in later litigation and/or the explanation advanced by him for making such admissions should be taken into consideration ; (ii) Whether the courts below have rightly appreciated the position of law enunciated in a decision reported in AIR 1941Bom. 144. 8. 144. 8. The above two substantial questions of law are in respect of issue no.3 framed and decided by the courts below in favour of the plaintiffs holding them to be having the right, title, interest and possession over the suit properties covered under plot nos. 1096 and 1097, finding that Netrananda’s branch entitled to half share from the property which has resulted in decreeing the suit. Learned counsel for the appellants submits that the courts below in arriving at such finding have utterly failed to appreciate the material evidence on record particularly the admission made by the parties in the pleadings of the earlier suit i.e. T.S. No. 29 of 1959 wherein Netrananda and Anam in their joint written statement had stated that they had purchased the suit plot and constructed the house remaining with their possession by unjustifiably discarding the explanation of the defendant no.1 that it was merely made to defeat the claim of Malati, the plaintiff in that said suit. It is also submitted that with such attending factors, the compromise having been arrived at in the said suit, Anam became the exclusive owner of the land involved in the said suit on certain consideration. It is also his contention that one more important document has gone unnoticed i.e. the deed of settlement between Dibyasingha, Anam and Netrananda, Ext.V-8 wherein two plots of land under plot nos. 1096 and 1097 have been excluded from the deed of family settlement and according to him such exclusion is because of the fact that the two plots are the separate properties of Anam. In course of his submission, for the purpose he placed reliance upon some letters given from the side of Anam expressing to have paid the entire consideration for the said purchase. Over and above, he also placed reliance upon the evidence of P.W.2 drawing attention of this Court to the relevant part of her deposition. So far as his submission in support of the acceptance of the explanation given from the side of the defendants to the so called admission in the earlier suit, he relied upon the decision in the case of Ramabai Shriniwas Nadgir v. Government of Bombay, AIR 1941 Bombay 144; Basanta Singh v. I.Janki Singh and others, AIR 1967 SC 341 ; Jagabandhu Senapati and others v. Bhagu Senapati and others, 1973(1) CWR 809; M/s. Prem Ex-Serviceman Co-op. Tenant Farming Society Ltd., v. State of Haryana and others, AIR 1974 SC 1121 ; Surjya Kumar Das v. Sm. Maya Dutta, AIR 1982 Cal 222 . He finally contends that the principles of law explained in these decisions have not been rightly appreciated and applied in the facts and circumstances of the case and in that event the answer of the courts below on issue no.3 would have been to the contrary. 11. Learned counsel for the respondents contends all in favour of the findings rendered by the courts below. It is his submission that the courts below have rightly refused to accept the explanation given by the defendants as regards admission in the pleadings of the earlier suit. He further contends that in the family settlement, merely because these two plots of land were not included, it cannot be presumed that those being the property of Anam as such stood be excluded from the purview of the said settlement. He also contends that the payment of consideration for the purchase of the land in the name of Dibyasingha is hardly of any significance and even it is assumed for a moment to be so that Anam having purchased the property in the name of his father Dibyasingha it can be well said to have been so done intending to the benefit the members of the family and not for the individual benefit simply unto himself keeping the karta of the family as mere name lender. He lastly contends that the principles laid down in the above cited decisions do not get attracted to be so applied in the facts and circumstances of the case emanating from the evidence on record to support the case of the defendant no.1. 12. Undeniably, the properties were purchased in the name of Dibyasingha, the father of Anam, the original defendant no.1 and the grandfather of plaintiffs as also the defendant nos. 2, 3 and 7 who are the children of Netrananda, the other brother of Anam. 12. Undeniably, the properties were purchased in the name of Dibyasingha, the father of Anam, the original defendant no.1 and the grandfather of plaintiffs as also the defendant nos. 2, 3 and 7 who are the children of Netrananda, the other brother of Anam. It is now the specific case of the defendant no.1 that it is he alone who had purchased the property merely in the name of his father Dibyasingha, who admittedly was the head of the family at that time and that too by providing the entire consideration from his own purse when then the financial condition of Dibyasingha could not have permitted him to go for purchasing the property. 13. Before going to even address the rival submissions, if we consider, the case projected by the defendant no.1 in thwarting the claim of the plaintiffs in saying that they being the heirs of Netrananda have no right over the property, the burden of proof can said to be heavily resting upon the defendant no.1 to establish his case rebutting the presumption that Anam had nothing to do with purchase of the property. Here is the case that his son claims to have purchased the land in the name of his father when undeniably the family was joint and he had another brother Netrananda. In case a junior member of the family purchases the land in the name of a senior member of the family that too the karta, the presumption runs that it has been intending to the benefits to all the members of the family. The presumption required to be rebutted by leading that standard of acceptable evidence from the that very beginning of the purchase of the said property, the said eldest member of the family was acting as merely the custodian of the property so purchased by the junior member and that property was never allowed to be enjoyed by the other members of the family in any way with its entire benefit being kept segregated, confined and was never parted with except that junior member. It is also the settled law that proof the payment of consideration from a particular source for the purchase is not enough to establish the case that the ownership by said purchase came to be rested with the person who provided the fund. It is also the settled law that proof the payment of consideration from a particular source for the purchase is not enough to establish the case that the ownership by said purchase came to be rested with the person who provided the fund. The important part of the intention comes from the user of the property as well as the utilization and enjoyment of the benefit from out of it. The courts below on analysis of evidence have concurrently arrived at the finding that there has been failure on the part of the defendant no.1 to establish the case that it was merely purchased in the name of Dibyasingha when the actual relationship was resting with the defendant no.1.On careful reading of the evidence both oral and documentary, I do not find any infirmity with the view taken by the courts below or that has been so done either by misreading the evidence or keeping aside the material evidence as available nor the admission of defendant no.1 in the earlier suit i.e. T.S. No. 29 of 1959. In that suit Netrananda and defendant no.1 stated to have purchased the property in the name of Dibyasingha. This pleading is in a general manner, neither it is indicated that it was purchased in the name of Dibyasingha nor intending that Dibyasingha would get the benefit out of it nor as regards the facts to have provided the funds. The next important pleading is their claim to have constructed the house over the land in their possession. This admission appears very clean and unambiguous. The explanation was that it had been with a bid to foil the move as made in the plaint of that suit. It is not at all understood how it the subject Anam that it was purchased by him merely in the name of Dibyasingha and the ownership was thus resting with him alone would have gone to thwart out the move of the said plaintiff in that suit. The explanation in my considered view, it is not believable and in any event it cannot accepted for a moment that it was so made simply to avoid the suit as no such circumstances have been placed on record through evidence that it so compelled for the purpose. 14. The explanation in my considered view, it is not believable and in any event it cannot accepted for a moment that it was so made simply to avoid the suit as no such circumstances have been placed on record through evidence that it so compelled for the purpose. 14. The settled law as has been pointed out in all the decisions (supra) cited by the learned counsel for the appellants in view of the facts and circumstances of the case and the evidence on record do not come to the aid of the plaintiffs in leading the court to form an opinion that it had been so made in the suit to meet a particular purpose and as such is not binding upon the person who had made that admission as it was made because of the attending circumstances which were appearing then during the earlier suit. 15. The other circumstance projected by the defendants is that of the omission of the suit plots in the deed, Exts. V/8. It is the deed of settlement between Dibyasingha, Anam and Netrananda. There is no dispute that these two plots of land were not the subject matter of the said settlement. In view of the fact that the properties is found to be purchased by Dibyasingha, none inclusion of these lands in the said settlement cannot lead to an inference that those being the properties of Anam, the same stood excluded from the purview of the settlement. By any stretch of imagination, it cannot be said like that, rather it can be inferred that Dibyasingha at that point of time had no desire to go for settlement of these two plots of land amongst them. It has not been indicated therein that these two plots of land were kept out of the purview of the settlement because those were the property of Anam. For the aforesaid discussion and reasons, this Court finds that the courts below have rightly answered the issue no.3 and consequently the suit has been rightly decreed. The substantial question of law receives their answer from the discussion made in the earlier paragraph which runs against the appellants. 16. In the result, the appeal stands dismissed. In the facts and circumstances, the parties are directed to bear their respect cost of litigation throughout.