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2016 DIGILAW 917 (ORI)

Assa Bibi v. Basanta Jena

2016-10-06

D.DASH

body2016
JUDGMENT : The appellants in this appeal have called in question the judgment and decree passed by the learned Addl. District Judge, Jajpur in Title Appeal No. 17 of 1994. The respondent no. 1 as the plaintiff had filed the suit for cancellation of the deed of sale said to have been executed by his father Hrushi Jena and for declaration of his right, title and interest as such over the suit land with alternative prayer for partition of the suit property and allotment of a share to him as entitled in law in case the deed of sale is held valid. The suit having been dismissed, the respondent no. 1 as the unsuccessful plaintiff had filed the first appeal under section 96 of the Code of Civil Procedure and that appeal having allowed, the present second appeal has come to be filed. 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 assigned in the trial court. It is pertinent to state here that the suit had been filed against one Mir Daud Alli and he having died during the pendency of the suit, his legal representatives have been arraigned in his place as the defendants and they were the respondents in the lower appellate court who have filed now this second appeal. 3. Plaintiff’s case is that the suit land was their ancestral homestead originally belonging to one Mani Jena who happens to be grandfather of the plaintiff. His father was the recorded tenant as per the record of the last settlement having succeeded to the said property on the death of Mani. It is stated that plaintiff’s father was a poor labourer and the defendant was a rich and influential person of the locality. The plaintiff’s father was working under him as labourer. This defendant’s land is said to have been situated on the adjacent south of the suit land. It is stated that on 04.01.1938, the defendants had obtained the sale-deed executed by Hrushi Jena in respect of the suit land in the garb of getting the deed of security from him for working under him till his death and not to contract with anyone else to work under him and making him believe as such. The deed was challenged as fraudulent and without the knowledge of the executants. The deed was challenged as fraudulent and without the knowledge of the executants. In other words, the execution of deed as such by Hrushi is denied as to have ever been made as such and thus the sale of the suit land to the defendant. It is stated that such sale was never acted upon and the possession of the suit land all along remained with Hrushi and then with the plaintiff. The deed is said to have created no right, title and interest in respect of the suit land in favour of the defendant. It is pleaded that the deed has been obtained by the defendant by exercising undue influence and having the fiduciary relationship and as such also to be a nominal one. Further it is said to have been so obtained taking advantage of poverty of Hrushi, who only knew to put his signature and nothing else and when there was no necessity on his part to sale the land. It is also stated that the suit land being the undivided co-parcenery property, Hrushi had no authority to transfer his share. On a fine morning of 01.03.1984 when defendants threatened the plaintiff with the dispossession from the suit land, the suit has been filed after collecting all the above detail informations. 4. The defendant contested the suit by filing written statement. The allegations leveled against him concerning the execution of sale-deed and all other facts surrounding the same as narrated in the plaint and as aforesaid have been stoutly denied. The relationship of Hrushi with the defendant also stands denied. It is stated that Hrushi was never the retained labour of the defendant nor he ever worked under the defendant. It is next pleaded that Hrushi had borrowed a sum of Rs. 20 from the defendants on 19.03.1936 by executing a money bond and in order to repay the same as also to pay the arrear rent to the landlord, he transferred land measuring Ac. 0.24 decimals by duly executing a registered sale-deed for a consideration of Rs. 36/-and had delivered of possession of the same to the defendant who thus remained in possession as such all along. Subsequently, it has been pleaded that by the time of sale, the plaintiff was not even born, but his age has been accordingly adjusted for the purpose and shown in the original plaint being inflated by over 30 years. 36/-and had delivered of possession of the same to the defendant who thus remained in possession as such all along. Subsequently, it has been pleaded that by the time of sale, the plaintiff was not even born, but his age has been accordingly adjusted for the purpose and shown in the original plaint being inflated by over 30 years. The defendant has also denied his status to be a man of wealth further pleading to have been living and maintaining the family by pulling cart. It is stated that the land alienated and the rest of the homestead land of the plaintiff are separated by one ridge which stands as the demarcation. The sale-deed has been asserted to be a valid and genuine one. It is also stated that Hrushi was the eldest male member of the family as such he was the Karta and had sold the land for legal necessity and benefit of the family. 5. Faced with the rival pleadings, the trial court had framed six issues. It has taken up issue no. 4 and 5 together for decision at first. In fact, what I find in the case that the issue no. 4 ought not to have taken up for decision with issue no. 5. Only in the event of an answer on issue no. 5 in favour of plaintiff, all other issues would have stood for decision. Be that as it may be, the issue relating to the claim of the plaintiff’s right, title and interest over the suit land has been answered against the plaintiff by ultimately holding plaintiff to have filed to establish his case as regards his right, title and interest over the suit land by pushing sale-deed in no way coming to the aid of the defendant in the matter of his establishment of right, title and interest in respect of suit land covered under it to the dustbin. The lower appellate court making a general discussion of evidence as is seen and having put the entire burden of proof upon defendant to establish all those factum of execution, passing of consideration and delivery of possession in support of the sale-deed repelling all those circumstances as pleaded by the plaintiff has recorded a note of dissent on the finding of the trial court has negated it. The appeal has simply been allowed setting aside the judgment and decree passed by the trial court. 6. At this stage, it may be stated that the appellate court has failed in its duty in that way by simply recording that the appeal is allowed and the judgment and decree passed by the trial court to have been set aside. Here the suit had been dismissed. So now that order of dismissal having been set aside without being any further indication by the appellate court, although one can simply say that the suit had been decreed yet there being total silence as to what relief or the reliefs have been granted to the plaintiffs being entitled in law as such in view of the reversal of the findings and consequently the decision of the trial court it has to be specifically stated by the appellate court in consonance with the provision of Rule-31 and Order 41 of the Code. It leads to a confusion which may give rise to multiplicity of proceeding. When the trial court’s decree is reversed in appeal, it merges in the appellate court’s decree which alone subsists being capable of enforcement. But then here under the circumstances in the absence of anything being stated in the ordering portion of the judgment as regards the relief/reliefs to which the plaintiff is found entitled and is thus granted in view of the said reversal of the findings and the judgment and decree passed by the trial court which had dismissed the suit how is it that it would be capable of enforcement more particularly when there has been no specific finding that the plaintiff is in possession of the suit land. The appellate court’s decree is also silent without any clear specification of relief granted by the Court. The matter however is given a rest here, expressing concern and displeasure with a fond hope and expectation that it would no more recur. 7. This appeal has been admitted on the following substantial questions of law:- (2) Whether suit filed on 12.02.1986 is barred by under Article 56 of Limitation Act and the cancellation and setting aside of sale-deed thereof dated 04.01.1938 (Ext. A) is sustainable under the law? (2) Whether a stranger to sale deed can challenge payment or non-payment of consideration and whether findings by appellate court that Ext. A) is sustainable under the law? (2) Whether a stranger to sale deed can challenge payment or non-payment of consideration and whether findings by appellate court that Ext. A sale deed was not backed by consideration but by coercion and pressure is sustainable? (3) Whether Ext. ‘A’ is deed of sale or Jabatnama? (4) Whether the property in suit is ancestral property of plaintiff or that of his father Hrushi Jena alone? 8. Learned counsel for the appellants submits that the sale-deed dated 04.01.1938 proved as Ext. A having not been challenged within a period of 3 years by the vendor or anyone else being aggrieved by the same, the suit ought to have been held to be barred by law of limitation either under Article 56 or 59 of the Act as the case may be and when there remains no acceptable explanation from the side of the plaintiffs in the pleading established through evidence as regards the lapse of long 48 years between the date of said sale and filing of the suit, the lower appellate court ought to have dismissed the suit. He also contends that in view of the recording of the suit land in the record finally published after consolidation operation, the suit ought to have been held to be barred under section 51 of the Odisha Consolidation and Fragmentation of Land Act as those recordings have not been challenged in the forum prescribed under the Act, when the fact remains that in the consolidation the records have been prepared after due notice to the parties. Learned counsel for the respondents on the contrary submits that the findings of the trial court have been rightly set aside by the lower appellate court. 9. In the instant case the plaintiff has impeached the validity of the sale-deed mainly upon two grounds that it had been taken in the garb of a document of security and obtained by exercise of undue influence, taking advantage of the fiduciary relationship between executant and the defendant as servant and master and the next one is that the property alienated under the deed Ext. A being the ancestral property, the plaintiff had a share over it equal to the father executants. A being the ancestral property, the plaintiff had a share over it equal to the father executants. But no such defence in specific term has been taken with regard to the lack of jurisdiction of the Civil Court in view of final publication of record of right in the consolidation operation remaining unchallenged. Thus no such issue has also been framed. It was also not raised before the lower appellate court in that way calling upon it to first rule on the jurisdictional aspect. And therefore, the courts below have not recorded any clear answer in that light. Be that as it may, when both the courts below in view of the challenge have gone to record findings as regards the validity of the sale-deed, it is felt apposite now to confine the examination as to whether the trial court’s finding on said issue no. 5 is sustainable or that of the lower appellate court. 10. Learned counsel for the parties in fact in course of hearing of this appeal are at one on the above. The sale-deed in question Ext. A is dated 04.01.1938. The suit has been instituted to declare it void in the year 1986 i.e., after lapse of 48 years. The position of law is well settled that when the deed of sale is called in question after a long lapse of time which is here more than four and half decades, so as to invalidate it and as by then the said deed in question has received the seal to be an ancient one, heavy burden lies upon the person who challenges the said sale to establish that such document was the hindi-work of the vendee here the defendant exercising undue influence or perpetrating fraud specifically pleading all those parts and aspects in detail through consistent and cogent evidence. The deed in question here is a registered one. When it is stated that defendant was a rich and influential person of the locality, the evidence comes that for some time he was serving in Chandabali Port Commission. No such other documents have been proved showing that this defendants was having large extent of immovable properties to his credit. On the contrary, it appears that the defendant was illiterate to have put his LTI and the evidence of the son of the defendant is that he was pulling cart. No such other documents have been proved showing that this defendants was having large extent of immovable properties to his credit. On the contrary, it appears that the defendant was illiterate to have put his LTI and the evidence of the son of the defendant is that he was pulling cart. There is no evidence on record to conclude that Hrushi was the retained labourer of Daud. The plaintiff when has deposed an oath to have learnt from his father 20 years before tendering the evidence in court that the deed was not scribed as per his instruction, nor was known him as such and that it was not read over and explained to him and as to have been executed believing to be a Jabatnama and without being registered, the case now as projected becomes unacceptable. The conduct of the plaintiff in not making any enquiry, thereafter as regards the true state of affairs and also not challenging the same and that too impeaching the document long after the death of his father, rather pushes all the assertions made concerning the documents as highly doubtful. His evidence even with regard to the father delivering him the document is also not acceptable. When he states at one stage that 20 years before he was told so by his father, on the next breath, he deposes his father to have died about 37 years before. The registered deed in question being attached with legal presumption on a bare perusal goes to show that it was signed by the vendor having been read over and explained with the contents and finding those to have been correctly written. More so, the property has not been shown to be the ancestral property in the hands of Hrushi. The record shows the suit land to have been recorded in his name way back in the year 1928 under sthitiban record. No such previous record has been proved in support of the claim of the plaintiff; when the very deed recites the property to be exclusive property of the vendor. The trial court on thorough analysis of evidence has found the suit land to have been in possession of the defendants. 11. No such previous record has been proved in support of the claim of the plaintiff; when the very deed recites the property to be exclusive property of the vendor. The trial court on thorough analysis of evidence has found the suit land to have been in possession of the defendants. 11. The lower appellate court as is seen from the judgment has gone to set aside the findings of the trial court assigning flimsy reasons such as non-mutation of the land for a long time and sale of Ac. 0.24 decimals of land out of Ac. 0.25 decimals by Hrushi and basing upon conjectures and surmises to note that under pressure and coercion, Hrushi had been compelled to execute Ext. A. It has again gone to say that defendant had failed to prove that there was no such fiduciary relationship with Hrushi. The reasons assigned do not at all appeal so as to be accepted. Thus I hold that the lower appellate court has erred both in fact and law in setting aside the findings of the trial court particularly on issue no. 5 and without any justifiable reason. For the aforesaid discussion and reasons, the substantial questions of law are provided with their answers running in favour of the appellant. 12. Resultantly, the appeal is allowed. The judgment and decree as passed by the lower appellate court are hereby set aside and those of the trial court in dismissing the suit stands restored. However, in the facts and circumstances, no order as to cost is passed.