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2016 DIGILAW 905 (ORI)

Murali Guru v. Janardan Guru

2016-10-05

D.DASH

body2016
JUDGMENT : The appellants in this appeal have called in question the judgment and decree passed by the learned Addl. District Judge, Bargarh in T.A. No. 54/58 of 1985/87. These appellants as the plaintiffs had filed the suit i.e., T.S. No. 131 of 1984 in the court of Subordinate Judge, Padampur. The suit for declaration of their right, title and interest over the suit as also for partition in the alternative having been dismissed, they had carried the appeal under section 96 of the Code of Civil Procedure. The lower appellate court having confirmed the order of dismissal of the suit as passed by the trial court, now the present appeal under section 100 of the Code has come to be filed questioning the concurrent findings recorded by the courts below resulting the dismissal of the suit. 2. For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as arraigned in the trial court. 3. Plaintiffs case is that the land described in schedule-D of the plaint originally belongs to Bhuban Guru. In a partion between three sons namely, Trilochan, Balamukunda and Sukadev, Schedule-A property had fallen to in the share to the Trilochan and the plaintiffs are thus said to have been in possession of the same. The property in Schedule-B having fallen to the share of Balamukunda, is now possession of the defendant no. 1 and 3. It is said that the Schedule-C land had been given to defendant no. 4 as of his share and accordingly he is now possessing the same. It is stated that in the major settlement operation, the entire schedule – D land have been recorded jointly and taking advantage of the same, the defendant no. 1 to 3 when created disturbance in the peaceful possession of the plaintiffs over the land in Schedule-‘A’ the suit has come to be filed claiming right, title and interest over Schedule-A land and in the alternative for partition of Schedule-D land. The defendant no. 1 to 3 coming to contest the suit by filing written statement admitted the partition to have taken place 40 years prior to the suit amongst Trilochan, Balamukunda and Sukadev, the three sons of Bhuban. The defendant no. 1 to 3 coming to contest the suit by filing written statement admitted the partition to have taken place 40 years prior to the suit amongst Trilochan, Balamukunda and Sukadev, the three sons of Bhuban. It is next stated that then Balamukunda got the land as described in Schedule-A of the written statement and as such he remained in possession of the same. Plaintiff’s father Trilochan as has been said by the defendants that he had sold a strip of land out of his share in Schedule-B on 20.03.1950 by unregistered sale-deed for consideration of Rs. 156/-and had delivered possession of the same. It is stated that since the date of purchase, Balamukunda and after him, his sons, the defendant no. 1 to 3 are in possession of both Schedule – A and B properties as described in the written statement. It is also their plea that daughters of Trilochan and Balamukunda although are necessary parties having not been so arraigned, as parties, the suit is bad for non-joinder of necessary party. 4. Faced with the above rival pleadings, the trial court framed as many as five issues. Rightly going to answer the crutial issue arising from the rival pleadings which are issue no. 2 and 3 as regards Balamukunda getting Schedule-A land as his share in the partition and claim of the defendants about the purchase of land by unregistered sale coupled with delivery of possession, upon discussion of evidence and on their assessment, the defendant’s claim has been accepted that the lands between the three sons of Trilochan having been partitioned, the defendant no. 1 to 3 are in possession of the land as described in Schedule-A from out of the share of Balamukunda. The above findings have resulted the dismissal of the suit. The lower appellate court in view of the challenge made before it, appears to have made tenacious exercise of scrutiny of the evidence on record firstly as to whether unregistered document Ext. A is relatable to the land described in Schedule-B of the written statement and that having been held in the affirmative the next finding has been recorded that this land was from out of the share Balamukunda which he had got in partition with his two brothers. A is relatable to the land described in Schedule-B of the written statement and that having been held in the affirmative the next finding has been recorded that this land was from out of the share Balamukunda which he had got in partition with his two brothers. Secondly with regard to the factum of possession of the said land, the conclusive conclusion has been that the same rests with the defendant no. 1 to 3 and as such it has been said that they having remained in possession as its owner for upward of the statutory period have acquired title over it by adverse possession. 5. The appeal has been admitted on the substantial question of law as regards the admissibility of Ext. A which is an unregistered document. 6. Learned counsel for the appellants submits that the findings of the lower appellate court that Ext. A concerns with the land described in Schedule –B of the written statement is not based on proper scrutiny of evidence on record and according to him, conjectures and surmises have played vital role in leading the lower appellate court to reach at such conclusion. It is also his contention that Ext. A being inadmissible in the eye of law, the same ought not to have been looked into for any purpose whatsoever much less to say as regards any transaction affecting the properties. Therefore, he urges that the judgments and decrees of the courts below dismissing the suit of the appellant are liable to be set aside and the appellants are entitled to the reliefs as prayed for. 7. Learned counsel for the respondents on the contrary contends that when the lower appellate court on thorough scrutiny of evidence when has recorded the finding on fact that Ext. A is very much concerned with the property described in Schedule B of the written statement which is the suit property as described in the plaint, it is not permissible within scope of this second appeal for this Court to again re-appreciate the evidence and even if on re-appreciation another view is possible to be taken, this Court should not reverse the finding by substituting its finding, with that of the finding of the lower appellate court when nothing is shown to say that the finding of the lower appellate court suffers from the vice of perversity. According to him, Ext. According to him, Ext. A being on unregistered deed, it has never been projected as a document in support of the transaction as indicated therein and on the other hand since the defendants have proved the delivery of possession of the land in question to them from that day onwards which has been continuing thereafter all along, the lower appellate court’s finding on that score cannot be said to be a flawed one. Therefore, he contends that on the face of the admission with regard to partition, this possession has to be taken to be as that of owner exhibiting hostile animus to the knowledge of the adversary calling for acceptance of the case of the plaintiffs to have acquired title of adverse possession the inevitable conclusion in this case. 8. Parties admit the factum of partition as amongst three sons of Bhuban. Now in view of the specific case of the defendant no. 1 to 3 as described in the written statement undoubtedly, the burden lies on them first of all to prove that the un-registered document dated 20.03.1950 refers to the disputed land under plot no. 603 and plot no. 559 / 885 measuring Ac. 0.42 decimals. True it is that the plot numbers are not so mentioned in Ext. A. Nonetheless there remains the boundary description with rough sketch map which has not been disputed. The evidence of plaintiff no. 2 examined as P.W. 2 and those of the D.Ws tally with one another on that very factual aspect establishing the nexus. Thus, the boundary being ascertainable as such, non-mention of specific plot numbers 603 and 599/885 in Ext. A pales into insignificance since the identity stands duly established and that deficiency is of no consequence being well made good through evidence. Now, coming to Ext. A, the unregistered document as per the provision of law when it has gone without being registered, no title can pass from the hands of the vendor to the vendees under any circumstance by virtue of it being hit under section 49 of the Registration Act and that is not admissible as evidence of the sale transaction affecting immovable property comprised therein, and they do not affect any such immovable property:- 9. In the case of Gerua Biswal v. Kshyama Biswal reported in AIR 1962 Orissa 107, a Division Bench of this Court held that, where in the case of an unregistered Kararnama when the members of a joint family effect a severance in status and each of the parties gave up his claim in respect of certain family lands already in the exclusive possession of the other, the document is inadmissible under section 49 of the Indian Registration Act as evidence of any transaction affecting the properties for want of registration and further no oral evidence can be given to prove the terms of the partition in view of section 91 of the Evidence Act. Though the document could be used for ‘collateral’ purpose for proving the severance of joint family status it would not be admissible to prove the nature of possession subsequent to the execution of the document because that would be using the document virtually for proving the allotment of the properties at the partition, the very purpose for which it is prohibited to be used under section 49 of the Act. In a subsequent decision in the case of Dandapani Sahu v. Kshetra Sahu and others reported in 31 (1965) CLT 33 this Court held that there is no dispute over the proposition that an unregistered partition deed can be used as an evidence to show severance of joint status, but it is not admissible to prove the actual allotment of specific properties to different shares. In the case of Gurnam Sngh v. Smt. Ass Kaur and others reported in AIR 1977 P. and H. 103 the Court held that in an unregistered document prepared before the panchayat containing a statement that a party before the said panchayat relinquished his right in certain properties in favour of another party is inadmissible. In the cases of Jayaram Jati and another v. Prasadi Chandra Biswal reported in ILR 1968 Cuttack 943 and Padmanabha Gountia and another v. Balganjan Patel and others 25 (1959) CLT 147 this Court held that where the ‘collateral’ transaction in proof of which the contents of an unregistered document are to be admitted is itself to be effected by a registered document, then the proviso to section 49 of the Act shall not operate in favour of such ‘collateral’ transaction. 10. 10. Thus, here it is said that there was of delivery of possession on the basis of Ext. A then it is on the basis of Ext. A which falls within the purview of the co-lateral transaction mean as such and that is what and is exactly prohibited under the provisions of section 47 of the Act which may lead to the creation of right to possess on the basis of Ext. A. But when we merely look to the commencement of possession of the property from that day of Ext. A, it stands for collateral purpose which the court is not prohibited to look into for the purpose of recording a finding on that score of factum of possession either way. The lower appellate court having gone through the description of the boundary in Ext. A and then having compared that the boundary of those two plots and in view of the oral evidence has recorded a finding in favour of defendant no. 1 to 3. Nothing is placed by learned counsel for the appellant in course of hearing of this appeal that the lower appellate court has side tracked any such material evidence beyond the zone of consideration and the same if would have been so taken into account, the finding might not have been as has been recorded. This Court also on further verification all those aspects as stated at para-7 of the judgment of the lower appellate court finds, no such justification to say that the conclusion is perverse not being able to search out any such evidence has overlooked which would have impacted the finding or that any extraneous evidence or inadmissible evidence have been brought within the arena of consideration. The position in so far as the finding of possession is found as same also of land as described in Schedule-B by the defendant no. 1 to 3 is concerned. Thus once it is accepted that possession of Schedule –B has remained with the defendants since the time of Ext. The position in so far as the finding of possession is found as same also of land as described in Schedule-B by the defendant no. 1 to 3 is concerned. Thus once it is accepted that possession of Schedule –B has remained with the defendants since the time of Ext. A which has been proved for the purpose that it had so come into existence, in view of the admitted case of partition, the possession stands but as adverse and that when is found to have continued for more than the prescribed period although where the plaintiffs have not arisen from slumber for necessary action in accordance with law, I find no reason to accord any note of dissent to the conclusion of the lower appellate court that it is, the defendants who have perfected title over of land by that adverse possession. The aforesaid discussion and reasons, while providing answer to the question of law leads this Court to concur with that the findings of the courts below in finally dismissing the suit. In the wake, the appeal is hereby dismissed. In the peculiar facts and circumstances however the parties are to bear their respective costs of the litigations throughout.