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2016 DIGILAW 861 (ORI)

Brundaban Thapa v. Gobardhan Chinagun

2016-09-23

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. Defendant nos. 2 and 3 are the appellants against the reversing judgment. 2. Respondent nos. 1 to 3 as plaintiffs instituted the suit for declaration of right, title and interest and permanent injunction impleading the appellants and respondent No. 3 as defendants. The case of the plaintiffs is that Plot No. 450, Ac.0.31 dec. under Holding No. 83/18 corresponds to Sabik Plot No. 495, Ac.0.27 dec. and Plot No. 499, Ac.0.04 dec. under Holding No. 43 of Mouza-Phuguda stood recorded in the name of Bhagirathi Chinagun. The suit land is the joint family property of the plaintiffs and was never partitioned by metes and bounds. Bhagirathi died leaving behind his three sons, namely, Damadar, Ratu and Pabitra. Ratu died issueless. Damadar died leaving behind his wife Ketho and two sons, namely, Jayadhar and Thulu. Pabitra died leaving behind his three sons, namely, Gobardhan, Sikun and Kapurchan, who are plaintiffs 1 to 3 respectively. Both the sons of Damadar died. Ketho Chinagun was maintained by Pabitra. After the death of Pabitra, all the plaintiffs maintained her. She was residing with them in the house situated over the suit land. After the ancestral house was collapsed, plaintiffs 2 and 3 constructed a new house over the suit land. When the defendants threatened to dispossess the plaintiffs from the suit land, they found that Ketho Chinagun had sold the suit land to defendant No. 1 by means of registered sale deed dated 12.6.1974 for consideration of Rs.400/-. It is further stated that Ketho Chinagun was deaf and dumb. She was an illiterate woman. Defendant No. 1 managed to execute the above deed by practicing fraud. She had no legal necessity to sell the land. Neither any consideration was paid, nor delivery of possession was made to the defendants. The defendants obtained the certified copy of the ROR in respect of Holding No. 26 on 21.2.1995. On verification, it came to the knowledge of the plaintiff No. 3 that defendant No. 1 had filed Mutation Case No. 277/91 to mutate the land in her favour. The said mutation case was filed against a dead person. The R.I. or the Amin had never visited the spot. They are not bound by the record-of-right prepared in the name of defendant No. 1. The defendants are not in possession of the suit land. The said mutation case was filed against a dead person. The R.I. or the Amin had never visited the spot. They are not bound by the record-of-right prepared in the name of defendant No. 1. The defendants are not in possession of the suit land. The defendants threatened plaintiff No. 3 to dispossess him from the suit land. 3. Pursuant to issuance of summons, defendants entered appearance and filed the written statement denying the assertions made in the plaint. The case of the defendants is that Bhagirathi died in the year 1960. After his death, both sons, namely, Damadar and Pabitra remained jointly till 1965. Thereafter, the ancestral property was divided between them. Damadar died leaving behind his two sons and his wife Ketho. His two sons died. Their funeral ceremonies were performed by Ketho. To meet the expenditure, she executed the registered sale deed bearing No. 1904 dated 12.6.1974. Since then defendant No. 1 is in peaceful possession over the suit land without any interference. Defendants have been possessing the suit land since 1974 with the knowledge of Pabitra Chinagun and thereby they have perfected their title over same. 4. On the basis of inter se pleadings of the parties, learned trial court struck eleven issues, which are as follows:- "1. Whether the suit is maintainable in its present form? 2. Whether there is any cause of action to bring this suit? 3. Whether the plaintiffs have right, title, interest over the suit land? 4. Whether the R.S.D. bearing No. 1904 dated 12.6.1974 executed by Ketho Chinagun in favour of the defendant No. 1 is void one? 5. Whether the suit is barred by law of limitation? 6. Whether the defendants were liable to be injected permanently in order to disturb the peaceful possession of the plaintiff? 7. To what any other relief this plaintiffs are entitled to get?" 5. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf, five documents were exhibited. Defendants had examined three witnesses and on their behalf, three documents were exhibited. 6. The suit was dismissed. Assailing the judgment and decree passed by the learned trial court, the plaintiffs filed RFA No. 30 of 2010 before the learned Addl. District Judge, Titilagarh. The same was allowed. 7. Mr. Defendants had examined three witnesses and on their behalf, three documents were exhibited. 6. The suit was dismissed. Assailing the judgment and decree passed by the learned trial court, the plaintiffs filed RFA No. 30 of 2010 before the learned Addl. District Judge, Titilagarh. The same was allowed. 7. Mr. Pati, learned counsel for the appellant, submits that the findings of the learned appellate court is contrary to the evidence on record and based on surmises and conjectures. Learned appellate court reversed the findings of the learned trial court on untenable and unsupportable ground. He submits that when the factum of transfer of co-parcenery interest by one of the coparcener for legal necessity has been established, the learned appellate court is not justified in upsetting the said findings. He further submits that the sale deed was executed by vendor for a valid consideration. The learned appellate court failed to appreciate that the plaintiffs are neither parties to that transaction nor beneficiaries under that instrument and, as such, the sale deed cannot be set aside or declared to be void on flimsy grounds. The learned trial court has rightly appreciated that the registered sale deed is a valid one. According to him, in the absence of the plot index and other documents of the suit land to know about the sabik plot, the finding of the learned appellate court in believing the observation of the Revenue Officer is against the law. Moreover, such observation of the Revenue Officer is not binding to a civil court and the findings of the learned trial court by discarding the right, title and interest over the suit property is well corroborated by principles of law. 8. On an anatomy of the pleadings of the parties and evidence on record, both oral and documentary, learned lower appellate court came to hold that there was no partition between Damodara and Pabitra. With regard to execution of the sale deed by Katha in favour of defendant No. 1, learned trial court came to hold that the vendor was an illiterate woman. She had put her LTI. Neither the scribe of the deed nor any attesting witnesses have been examined to prove the deed of the execution of the will by Katha. With regard to execution of the sale deed by Katha in favour of defendant No. 1, learned trial court came to hold that the vendor was an illiterate woman. She had put her LTI. Neither the scribe of the deed nor any attesting witnesses have been examined to prove the deed of the execution of the will by Katha. There is no evidence on record that the contents of the alleged sale deed was read over and explained to Katha and after understanding its contents, she put her LTI. The sale deed was executed by an illiterate woman. Neither any attesting witness, nor the scribe of the sale deed vide Ext.C have been examined to prove due execution of the deed. There is no evidence that the contents of the same was read over and explained to the vendor and after understanding the same, she put her LTI. It further held that the sale deed was a void one and, as such, defendant No. 1 has not acquired any right, title and interest over the same. Thus she has no right to alienate the land in favour of defendant nos. 2 and 3. 9. There is no perversity or illegality in the findings of the learned lower appellate court. The second appeal does not involve any substantial question of law and the same is accordingly dismissed.