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2016 DIGILAW 929 (ORI)

Arjuna Gadaba v. Sukaldei Pujari

2016-10-07

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the Additional District Judge, Jeypore in R.F.A. No.11 of 2010. The respondent no.1 as the plaintiff had filed the suit for declaration of her right, title and interest over the property described in schedule ‘B’ of the plaint with further relief of recovery of possession of mesne profit or in the alternative for partition of the property described in schedule ‘A’ of the plaint. The suit having been decreed granting the principal relief of declaration of right, title and interest and recovery of possession to the respondent no.1 (plaintiff), all the defendants together had carried the first appeal under section 96 of the Code of Civil Procedure. The appeal having been dismissed, now the appellant (defendant no.1 in the trial court and appellant no.1 in the lower appellate court) has filed this appeal under section 100 of the Code alone. 2. For the sake of convenience, in order to bring in clarity for avoiding confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that one Mangala Gadaba was the recorded owner of the schedule ‘A’ property and on his death his three sons, namely, Nilakantha, Sonia and Sunadhar succeeded to the same. It is stated that the three brothers had orally partitioned schedule ‘A’ property and accordingly each of them separately possessed the land falling to their respective share. Nilakantha being in possession of the property as of his share sold schedule ‘C’ property to one Arjuna Pujari by an unregistered sale deed in the year 1952 and then by a registered sale deed in the year 1968. It is stated that Arjuna since above purchase, remained in peaceful possession and enjoyment of the said property. After the death of Arjuna Pujari, his wife and daughter Rukmini sold the said property to the plaintiff who happens to be the daughter of Rukmini. So, she came to possess the suit land. It is stated that the appellant without any rhyme and reason with an ulterior motive on a fine morning came over to disturb the peaceful possession of the land by the plaintiff which finally gave rise to a proceeding under section 145 of the Code of Criminal Procedure. So, she came to possess the suit land. It is stated that the appellant without any rhyme and reason with an ulterior motive on a fine morning came over to disturb the peaceful possession of the land by the plaintiff which finally gave rise to a proceeding under section 145 of the Code of Criminal Procedure. In the said proceeding the learned Executive Magistrate when declared the possession of the defendants, the suit has come to be filed on the allegation that the defendants forcibly possessed the suit land after initiation of the proceeding under section 145 of the Code. 4. The defendants coming to contest the suit inter alia pleaded that Nilakantha and his brothers were all along in cultivating possession over schedule ‘A’ property. It is further stated that Nilakantha never sold any property to Arjuna. The properties in schedule ‘A’ are said to be joint family properties and as such the right of Nilakantha to sale schedule ‘B’ land is disputed. They have also taken a plea that the registered sale deed said to have been executed by Nilakantha in the year 1968 is a fake and fabricated document and that was never executed by Nilakantha so also the subsequent sale deeds projected by the plaintiffs have accordingly been called in question. It is further stated that they have been in joint possession of the entire ‘A’ schedule property as owners paying rent to the State and with the record of rights standing jointly in the name of their ancestors. 5. Trial court faced with above rival pleadings framed in total nine issues. Rightly, taking up issue no.2 for decision as to whether there was prior partition of the properties in schedule ‘A’ between Nilakantha and his brothers, the evidence on record has been discussed. It has been finally held that upon assessment of evidence both oral and documentary, that there had been a prior partition. For the purpose, as is seen from the judgment of the trial court, the position of law as settled in plethora of decisions of this Court as also rendered by the Apex Court have been discussed and kept in mind. For the purpose, as is seen from the judgment of the trial court, the position of law as settled in plethora of decisions of this Court as also rendered by the Apex Court have been discussed and kept in mind. The other issue relating to the challenge made to the execution of the so-called sale deed by Nilakantha covered under the issue of right, title and interest of the plaintiff said to have been derived through that sale deed has also been answered in favour of the plaintiff. The next issues having accordingly been answered, the said suit has been decreed. The lower appellate court having been moved as is seen have gone for an elaborate discussion of evidence on record at its level independently, in addressing each of the six points framed for determination in view of challenge to the judgment and decree of the trial court as also the rival contention raised before it. The conclusions at the end, however, have remained the same as recorded by the trial court in answering the issues as stated above. The appeal thus having been dismissed, the present is the move is with this second appeal. 6. Learned counsel for the appellant submits that the courts below were not at all justified in holding the prior partition between Nilakantha, Sonia and Sunadhar in the absence of any evidence from the plaintiff showing definite and unequivocal communication of intention of separation by Nilakantha to other coparceners and anything more being done for allotment/determination/definition of specific share in pursuance of such disclosure of intention. According to him, the evidence having not been appreciated in their proper prospective so as to arrive at that conclusion of prior partition between Nilakantha and his two brothers the finding clearly suffers from the vice of perversity. This, according to him, is the substantial question of law which surfaces in this appeal for consideration and necessary answer. Thus he urges for admission of this appeal. 7. Taking up the exercise of finding out as to if any substantial question of law arises in this case or not by addressing the above noted submission of the learned counsel for the appellant, this Court has carefully read the judgments of the trial court as well as the lower appellate court. 7. Taking up the exercise of finding out as to if any substantial question of law arises in this case or not by addressing the above noted submission of the learned counsel for the appellant, this Court has carefully read the judgments of the trial court as well as the lower appellate court. Both the courts below have concurrently recorded the finding of fact that there has been prior partition between Nilakantha and his two brothers. It is seen that the courts below have gone for a microscopic examination of the oral evidence let in by the plaintiff on the score of prior partition being fully conscious of the settled position of law that the burden of proof in establishing the factum of prior partition in the case rests with the plaintiff. The oral evidence being discussed on that score of prior partition have been found to be acceptable receiving corroboration from one such circumstance established by evidence as regards the sale of land by Nilakantha to one Chingudu Naik. His son having been examined as P.W.5 has deposed that the possession of the said land has been remaining with him and that is also found from the recitals of the said sale deed admitted in evidence and marked as Ext.14. The other evidence stands that the record with regard to the said land stands in the name of P.W.5 by order in the mutation case and that too the same is to the knowledge of Sonia, the brother of Nilakantha as admitted by the defendant-appellant during his cross-examination in the trial court having come to the witness box as D.W.1. The rent receipts filed by the plaintiff vide Exts.8 and 9 have also been taken into consideration as providing support to the factum of possession as claimed by the plaintiff. The courts below have thus answered the issue of prior partition in favour of the plaintiff. Emphasis has also been given to Ext.7, the certified copy of the record of right of the land under Sabik, Khta No.571 standing in the name of Sunadhar Gadaba alone who is one of the brothers of Nilakantha. The courts below have thus answered the issue of prior partition in favour of the plaintiff. Emphasis has also been given to Ext.7, the certified copy of the record of right of the land under Sabik, Khta No.571 standing in the name of Sunadhar Gadaba alone who is one of the brothers of Nilakantha. In course of hearing, it has not been shown that the courts below either have ignored any such material evidence available on record, from the arena of consideration and have thus failed to appreciate those in their true prospective viewing their impact over the ultimate decision and that if those would have been duly considered the finding might have been otherwise. It is further not pointed out that any such inadmissible evidence has been taken into consideration by the courts below for the purpose of deciding the said issue of prior partition in favour of the plaintiff. Thus, I find that the said findings of the courts below do not suffer from the vice of perversity. Next in respect of challenge to the execution of the sale deed made by Nilakantha, it being a registered one the presumption as available under the law stands. The defendants have not tendered any evidence in support of their case that it is a forged and fake one so as to persuade the court to hold that the same cannot be relied upon as the document of title in finally concluding that the said title over the property ultimately has not passed to the hand of the plaintiff. The burden as above having not been found to have been discharged by the defendants, this Court does not also find any such infirmity with the same In the wake of aforesaid, this Court finds no substantial questions of law for consideration for recording answers in this appeal. The appeal thus does not merit admission. 8. Resultantly, the appeal stands dismissed. No order as to costs.