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2016 DIGILAW 920 (ORI)

Radhamani Bewa (Rout) v. Braja Sundar Patnaik

2016-10-06

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned District Judge, Balasore-Bhadrak in Title Appeal No. 32 of 1999. The respondent no. 1 as the plaintiff had filed the suit i.e. O.S. No. 150 of 1986-I for declaration of his right, title, interest and possession in respect of the land described in schedule ‘Kha’ of the plaint with the case that it has so come to his hands in exchange of his land described in schedule ‘Ka’ of the plaint with the owner of ‘Kha’ schedule land and for permanent injunction. An alternative prayer had also been made that in case the exchange theory is not accepted there be a declaration of his right, title and interest over the land in ‘Ka’ schedule and accordingly recovery of possession of the same be ordered. The suit having been dismissed, the respondent no. 1 as the unsuccessful plaintiff had carried the appeal under Section 96 of the Code of Civil Procedure. The lower appellate court has allowed the appeal in part setting aside the dismissal of the suit in its entirety. The lower appellate court has granted the plaintiff with the alternative relief by declaring his title over ‘Ka’ schedule land and his entitlement to recover possession of the same from the defendants as such. The present appellant no.1 being the aggrieved defendant no. 1 has filed the second appeal under Section 100 of the Code. 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 trial court. 3. The plaintiff’s case is that ‘Ka’ and ‘Kha’ schedule land belonged to Bhagabat Rout, the husband of defendant no. 1 and father of defendant nos. 2 and 3. Bhagabat died in the year 1957 when defendant nos. 2 and 3 were minors. The defendant no. 1 the widow of Bhagabat and mother of defendant nos. 2 and 3 after death of her husband had sold schedule ‘Ka’ land for self and on behalf of defendant nos. 2 and 3 to the plaintiff’s father by the registered sale deed dated 27.6.64 for a consideration of Rs.200/-and had given the delivery of possession of the same. Accordingly, ‘Ka’ schedule land was mutated in the name of father of the plaintiff and he continued to possess the same. 2 and 3 to the plaintiff’s father by the registered sale deed dated 27.6.64 for a consideration of Rs.200/-and had given the delivery of possession of the same. Accordingly, ‘Ka’ schedule land was mutated in the name of father of the plaintiff and he continued to possess the same. When this was the situation, accepting the request of defendant no. 1 an exchange took place in a way that the purchased ‘Ka’ schedule land was given to defendant no. 1 and instead the ‘Kha’ schedule land was given in exchange by the defendant no. 1. This is said to have taken place in the year 1964. Accordingly, the plaintiff claims that the exchange was honoured, possession accordingly by the parties to the exchange commenced and continued. However, in course of time as dispute arose, finally the suit had to be filed. 4. The defendants contesting the suit came to deny the execution of the sale deed by defendant no. 1 and the factum of delivery of possession pursuant to it. The theory of exchange as placed by the plaintiff has also been refuted and so also the factum of possession as claimed by the plaintiff that he was initially possessing ‘Ka’ schedule land and then the possessed ‘Kha’ schedule land in view of the exchange. 5. The trial court faced with such rival pleadings framed nine issues. It come to conclude that the defendant no. 1 had never executed Ext. 1, the sale deed and therefore, the plaintiff has no right, title and interest over the ‘Ka’ schedule land. The theory of exchange as placed by the plaintiff has also been disbelieved and then going to examine the stand of denial taken by the defendants with regard to the status of the plaintiff as the adopted son of Braja Sundar, it has held that the plaintiff has failed to prove the same. The lower appellate court found the finding of the trial court on the issue of valid execution of the sale deed Ext. 1 to be erroneous and accordingly, has recorded a conclusive finding on detail discussion of evidence as also the circumstances emanating from the same that defendant no. 1 had in fact executed Ext. 1 understanding its nature and purport and it was for self and on behalf of the defendant nos. 2 and 3. It has also been held that by such sale deed Ext. 1 had in fact executed Ext. 1 understanding its nature and purport and it was for self and on behalf of the defendant nos. 2 and 3. It has also been held that by such sale deed Ext. 1, the right, title and interest in respect of ‘Ka’ schedule property has passed in favour of Brundaban Patnaik and the defendant nos. 2 and 3 have been held to be bound by such sale deed inasmuch as when they have also not challenged the same at any time within the period prescribed under Article 60 of the Limitation Act after attaining their majority. 6. Next the issue of status of the plaintiff as the adopted son of Brundaban Patnaik has been found to have been proved by the plaintiff and as such his right to maintain the suit has been so held. However, on the question of the acceptance of theory of exchange as projected by the plaintiff, the lower appellate court taking a view that even if it such exchange is held to have taken place for the purpose of convenience that cannot lead for a declaration of the right of the plaintiff in so far as the ‘Kha’ schedule land is concerned and even if the possession of the said land is found to be with the plaintiff that would not also give rise to the case of acquisition of title by adverse possession. With the above findings, the plaintiff’s suit has been decreed to the extent of declaring his right, title, interest and entitlement to possess ‘Ka’ schedule land and get it so recovered. 7. The appeal has been admitted on the following substantial questions of law:- “i. Whether the lower appellate court is justified in holding that defendant no. 1, who is an old Purdanashin lady, has executed the sale deed when the contents of the said sale deed were neither read over nor explained to her at the time of execution or was there any endorsement to that effect in the sale deed? ii. In absence of any evidence on record that the terms of the sale deed are fair and equitable and that defendant no. 1 had independent advised and she understood the same, whether the lower appellate court is justified in decreeing the suit?” 8. ii. In absence of any evidence on record that the terms of the sale deed are fair and equitable and that defendant no. 1 had independent advised and she understood the same, whether the lower appellate court is justified in decreeing the suit?” 8. Learned counsel for the appellant submits that the lower appellate court should not have upset the finding of the trial court on the question of validity of Ext. 1 which has been so recorded after thread bare discussion of evidence on record with a specific conclusion that the contents of the sale deed were never read over and explained to defendant no. 1 further remaining without being supported by any endorsement to that effect in the very document. Thus according to him, the trial court had rightly held that the burden of proof of due execution of the said sale deed by defendant no. 1 as was resting upon the plaintiff had been rightly held by the trial court to have not been discharged by further proof of independent advice that defendant no.1 had received the same on that score. He also contends that the settled position of law has not been applied in their right perspective by the lower appellate court while judging the correctness of the finding of the trial court on that score. So, he urges that the substantial questions of law need be answers in favour of the appellant. 9. Learned counsel for the respondent no. 1 placing relevant paragraphs of the judgment of the lower appellate court contends that being conscious of the settled legal position, the lower appellate court from the very beginning has proceeded to appreciate the evidence and accordingly, when has rightly held at ultimatum that the Ext. 1 is a valid document in the eye of law, the same according to him is unassailable. He has also cited some important circumstances emerging from evidence in support of the finding of the lower appellate court which will be discussed hereinafter. 10. 1 is a valid document in the eye of law, the same according to him is unassailable. He has also cited some important circumstances emerging from evidence in support of the finding of the lower appellate court which will be discussed hereinafter. 10. It is the settled position of law is that in case of execution of document by any illiterate lady, there remains a cloak of protection under the law that in such case the burden of proof lies on the person who seeks to sustain the transaction by proving through acceptable evidence that the document was duly executed by her after clearly understanding the nature of transaction and it was both her mental and physical act that being read over and explained with the contents of the document and understanding their purport, she subscribed her hand to it. On the principles of law as to how the burden of proof would be discharged by the beneficiary, there remains no quarrel that discharge would not only by proving that documents have been executed by her and that she understood the contents but also even by other evidence, direct or circumstantial. The trial court as it appears had given much of emphasis upon the absence of the endorsement in Ext. 1 to the above effect by the scribe that the contents had been read over and explained to the executant. But the fact remains that the said deficiency has been well made good of through oral evidence. This had been completely lost sight of by the trial court and as it appears, it has rightly struck the mind of the lower appellate court. Applying the ratio of the decision of this Court in case of “Narayan Misra and two others vs. Champa Dibya”: AIR 1999 Orissa 154 that the absence of certificate or endorsement is not conclusive or decisive and the burden can be discharged by other evidence, direct and circumstantial, the lower appellate court has proceeded to examine those one by one and for the purpose has made detail discussion at para-7 of the judgment. Such ultimate conclusion of the lower appellate court as has been reached appears to have been after grueling exercise of scanning the evidence. Such ultimate conclusion of the lower appellate court as has been reached appears to have been after grueling exercise of scanning the evidence. Taking a cumulative view on the evidence on record and all other circumstances as those emanate besides the conduct of the executant, her level of intelligence as reveal therefrom as also her experience regarding execution of other documents concerning her property and more particularly the fact that while selling a portion of land from out of the very plot for which the present sale deed Ext. 1 has been executed describing the boundary of the land sold therein in consonance with the present land sold under Ext. 1, I find that the finding of the lower appellate court on the score is unassailable. Thus the substantial questions of law as famed do not receive the answers in favour of the appellant in sustaining the challenge to the finding of the lower appellate court. 11. Resultantly, the appeal stands dismissed. However, in the facts and circumstances, no order as to cost is passed.