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2016 DIGILAW 907 (ORI)

Radhashyam Sahu v. Chaturbhuja Sahu

2016-10-05

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No.33 of 2006 confirming the judgment passed by the learned Civil Judge (Sr. Division), Keonjhar in C.S. No.90 of 2004. The respondent as the plaintiff had filed the above noted suit for declaration of right, title and interest over the suit land along with that of the appellant-defendant who is his elder brother. That having been decreed in denial of the claim of exclusive right, title and interest over the suit property as advanced by the appellant-defendant, he had carried the first appeal under section 96 of the Code of Civil Procedure. In the said appeal, the appellant having failed has now in this second appeal challenges the concurrent findings and decisions of the courts below. 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 court below. 3. Plaintiff’s case is that their father Anirudha has purchased the suit land in the name of the defendant, who was then a minor aged around 14 years together with one Baikunthanath Sahu who happens to be the maternal uncle of the parties. The suit land was purchased by registered sale deed dated 06.06.1955 for a consideration of Rs.800/-The possession of the suit land on the strength of the said sale deed being delivered, the purchasers began to possess by making a division in two equal half; one remaining with Baikunthanath and the other one as with Anirudha, the father of the parties. It is specifically stated that the defendant had no source of income of his own at the time of purchase and the investment for the purpose was wholly made by Anirudha from his own income who also constructed the house over there, spending money from his own purse without the help of anyone and, in fact, then the defendant had no occasion as also the ability to make any such investment. The holding for the house accordingly being made in the name of Anirudha, the father of the parties, he went on paying the holding tax further taking electric connection to the said house and making payment of energy charges etc. The holding for the house accordingly being made in the name of Anirudha, the father of the parties, he went on paying the holding tax further taking electric connection to the said house and making payment of energy charges etc. It is stated that the defendant was the custodian of the properties as also all its document since the plaintiff used to remain outside because of his job related assignment in the service as a doctor. It is the further case of the plaintiff that during the lifetime of Anirudha, there had been an amicable division of the suit property between the two brothers, i.e., the plaintiff and the defendant on 16.06.1987 together with their other properties and this suit property was divided in two parts between them with allotment of front portion adjacent to the road remaining with the plaintiff wherein the back portion of the house stood allotted to the defendant. The division was evidenced by a document signed by the parties and accordingly acting upon the same, the parties continued to possess. The allegation has come that the defendant being a shrewd person then manipulated the record of the suit land getting it recorded in his name alone in the current settlement when the plaintiff was outside. So the plaintiff states that such erroneous recording cannot enure to the benefit of the defendant alone in the direction of extinguishment of the right, title and interest of the plaintiff in so far as the suit land and the house are concerned. Being armed with such recording, when the defendant threatened to dispossess the plaintiff from the land and house in plaintiff’s possession, the suit has come to be filed at the ultimatum. One more important fact has been pleaded that there was an earlier partition suit bearing Title Suit No.63 of 1997 at the instance of one Usata Manjari Sahu in relation to the family properties and this suit property being owned by the plaintiff and defendant, it was not within the purview of that suit which of course stood dismissed for non-prosecution. 4. The defendant coming to contest the suit advanced the claim that suit property is his exclusive property. It is also the case that during his childhood days his maternal uncle had taken him to his place where he received primary education. 4. The defendant coming to contest the suit advanced the claim that suit property is his exclusive property. It is also the case that during his childhood days his maternal uncle had taken him to his place where he received primary education. Being a meritorious student, he used to receive scholarship and from out of that the land was purchased in his name as also in the name of the uncle who had to some extent provided the consideration money. Thus, the joint sale deed had come into being. It is also his case that he had constructed the house over the suit land by spending money from his own source and income. He challenges the document evidencing the separation to be manipulated one. According to him, there was never any such division and family arrangement and that it was not so made at any point of time during the lifetime of their father Anirudha. Thus, he resisted the claim of the plaintiff of having any right, title or interest over the suit property. 5. Trial court faced with such rival pleadings in total framed seven issues. Going to answer the crucial issues with regard to the nature of the property which includes the rival claim of the parties, when one says that both have the right over it and the other asserts his exclusive right, upon detail discussion of evidence, the trial court answered the same in favour of the plaintiff. It has also next gone to find that the plaintiff has got the right, title and interest over the suit property along with the defendant. 6. The lower appellate court in view of the challenge, going to examine the sustainability of the above finding recorded by the trial court as is seen from the judgment has taken up a tenacious exercise of evaluation of evidence afresh at its level so as to search out any reason to accord any note of dissent to the findings of the trial court. The ultimate result, however, has been in favour of affirmation of the findings of the trial court and that has led the lower appellate court to confirm the judgment and decree as passed by the trial court. 7. The ultimate result, however, has been in favour of affirmation of the findings of the trial court and that has led the lower appellate court to confirm the judgment and decree as passed by the trial court. 7. Learned counsel for the appellant submits that the courts below ought not to have been swayed away by the so-called amicable division followed by the family arrangement as reduced into writing under Ext.3. Placing details of deficiencies contained therein, he submits that the courts below ought not to have accepted the same as an important piece of evidence in rendering the findings on the crucial issues. With the above, he contends that the evidence on the record when in clear terms establish that the property was purchased under registered sale deed standing in favour of the defendant, the plaintiff having failed to discharge the burden by leading clear, cogent and acceptable evidence on the score that it was their father Anirudha who had purchased the property in the name of the defendant and thus it is the joint family property, the relief granted to the plaintiff holding his right, title and interest over the suit property jointly with the defendant is liable to be set at naught. These, according to him, are the substantial questions of law which surface in this case for their certification for the purpose of admission. 8. Learned counsel for the respondent entering appearance contends that the above findings which are now sought to be impugned in this appeal are findings of fact. Thus, according to him, the concurrent finding of fact having been rendered by both the forums below and as no such perversity is pointed out or seen to have been committed during that exercise, those are not liable to be disturbed even if in the extreme, this Court may possibly come to a different conclusion. Thus, according to him, the concurrent finding of fact having been rendered by both the forums below and as no such perversity is pointed out or seen to have been committed during that exercise, those are not liable to be disturbed even if in the extreme, this Court may possibly come to a different conclusion. It is also her contention that Ext.3 has been considered by the courts below in its proper prospective taking it to be a family arrangement concerning the amicable division of the suit property between the two brothers and when the courts below have been satisfied with regard to its genuineness overruling the contention of the defendant that it is the outcome of manipulation, the arrangement made therein notwithstanding the evidence as regards even acquisition of the property and its nature, the same has to be given due regard to as to have been so acted upon and prevailed for quite some time. That according to her has rightly been done by the courts below. Thus, she contends that there surfaces no such substantial question of law standing to be answered in this case so as to admit this appeal. 9. Admittedly, the sale deed by which the suit land has been purchased stands in the name of the defendant and one Baikunthanath who happens to be the uncle of the parties. It is also admitted that Baikuntha has taken away half out of it. The dispute is now relating to the rest half which is claimed by the defendant to be his exclusive property whereas the plaintiff claims to have also the right, title and interest over the same along with the defendant. This claim is founded firstly on the ground that it had been purchased by their father although in name of defendant yet by spending money from his own purse and, therefore, both have the right over it and secondly, that there being an amicable division of the said property between the plaintiff and the defendant during the lifetime of their father and the family arrangement being reduced into writing under Ext.3, his right, title and interest over the suit property with that of the defendant stands established. Undeniably, the defendant was a minor at the time of acquisition of the suit land and then was aged about 14 years. Undeniably, the defendant was a minor at the time of acquisition of the suit land and then was aged about 14 years. The plaintiff has led evidence that the property was being treated as the property of their father by adducing not only the oral evidence but also the documentary evidence. Their father was paying holding tax in respect of the very holding concerning the house standing over the suit land. He having taken the electric connection to the said house was also paying the energy charges stretching over a long period. The other important documentary evidence has surfaced that in an earlier suit for partition filed by one Usata Majari Sahu who is none other than the sister of the parties, this suit property was of course not the subject matter. But in the written statement filed by this defendant in that suit for partition, there remains clear cut admission with regard to the amicable division and preparation of the partition list in the year 1987 which hints at Ext.3 and that he has not explained it away in any manner by adducing evidence that it was not this as is said to have been reduced into writing vide Ext.3. When one peruses Ext.3, it is seen that both the brothers have amicably made the division of their properties and accordingly the same has been reduced into writing. The parties do not deny their signatures therein. The defendant while not denying that there was no such occasion for having the sitting for amicable division of the properties, has rather explained that he was forced to sign on one stamp paper which he had done out of sheer disgust. It is his further evidence that the same was never acted upon. He has stated to have admitted in the pleading in the earlier suit that there was partition of properties between himself and the plaintiff. The next important evidence which provides great support to the said arrangement is that his own purchased property under Exts. C and D were not the subject matter of the amicable division, and, therefore, those did not find mention under Ext.3 and that thus stands as a circumstance against the exclusive claim of the defendant over the suit property. This Ext.3 has also been proved from the side of the defendant as Ext. C and D were not the subject matter of the amicable division, and, therefore, those did not find mention under Ext.3 and that thus stands as a circumstance against the exclusive claim of the defendant over the suit property. This Ext.3 has also been proved from the side of the defendant as Ext. E. The courts below have taken the document as that of a memorandum of arrangement under the signature of the parties when the parents of the parties were alive. In such state of affair in evidence, this Court is not at all in a position to say that the findings of the Courts below on above issues suffer from the vice of perversity that in arriving at such a conclusion the courts below have either by ignored any material evidence on record which if would have been taken into consideration, the finding might have been otherwise or that any inadmissible evidence have been taken into account and have weighed in the mind of the court in arriving at such conclusion. Moreover, when the defendant has not produced any evidence that he was having some money with him at the relevant time or even that his father had purchased the property in his name intending to benefit him alone or that someone else had provided the consideration either in whole or in part for the purpose of the said purchase, on the face of evidence that during the lifetime of father there had taken place an amicable division of the said property between the parties, this Court is not able to cull out any such justifiable reason either on the fact or in law for upsetting the said concurrent findings of the courts below. For the aforesaid discussion and reasons, the submission of the learned counsel for the appellant fails. The appeal thus does not merit admission. 10. In the result, the appeal stands dismissed. No order as to cost.