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2017 DIGILAW 1232 (ORI)

Shyam Sundar Majhi v. Markardhwaj Majhi

2017-10-31

D.DASH

body2017
JUDGMENT The appellants by filing this appeal under Section 100 of the Code of Civil Procedure (hereafter referred as the Code) has assailed the judgment and decree passed by; the learned District Judge, Bargarh in R.F.A.No. 17 of 2012 dismissing their appeal under Section 96 of the Code. 2. The respondents as the plaintiffs have filed the suit i.e. Civil Suit No. 68 of 2009 in the Court of learned Civil Judge (Junior Division), Bargarh seeking decree for eviction of the respondents from the suit house standing described schedule-B of the plaint and for permanent injunction. The suit having been decreed, the above named appellants being the unsuccessful defendants suffering from the said judgment and decree passed by the trial Court had carried the first appeal which has yielded no result for them. So in this appeal while praying for setting aside the judgment and decree passed by the first appellate Court to the sufferance of the appellants, they further pray for dismissal of the suit filed by the respondents as the plaintiffs followed by refusal to grant such reliefs as have been granted. 3. 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. 4. Plaintiffs’ case is that the father of the plaintiff and defendant no. 1 namely, Bidyadhar Majhi finding himself in great difficulties in maintaining himself and other dependants upon him as well as in fulfilling their expectations, came to Bargarh in search of a job in order to have a better earning. It is stated that Bidyadhar finally got a job in the IDCOL Cement Factory, Bargarh as a driver and thereafter the plaintiff got the employment as a driver in the IDC with effect from March, 1980. It is further stated that the plaintiff purchased the schedule ‘A’ land from one Hari Bhue by way of a registered sale deed dated 14.02.1997 for consideration of Rs. 52,000/- and took delivery of possession of the said land which has been recorded in his name by order dated 22.02.2000 in Remand Revision Case No. 857 of 1998. It is further stated that the plaintiff purchased the schedule ‘A’ land from one Hari Bhue by way of a registered sale deed dated 14.02.1997 for consideration of Rs. 52,000/- and took delivery of possession of the said land which has been recorded in his name by order dated 22.02.2000 in Remand Revision Case No. 857 of 1998. Plaintiff constructed the house and shop rooms over the said land by spending money from his own pocket as also incurring loans from his employer as well as from the Housing Development Finance Corporation Ltd. After construction, he let out portion of the said house as well as some shop rooms to different persons inducted them as the monthly tenant therein. It is stated that the defendants came to Bargarh on 15.11.2007 in search of jobs and other avenues for their better earning. So they requested the plaintiff to allow them to stay in the suit house. The plaintiff then favoured them by providing a portion of that house constructed over the schedule ‘A’ land for their shelter, the defendants however taking advantage of the situation, asserting ownership over the property in question demanded rent from others. It is further stated that the defendants although agreed to vacate the suit house when the matter had been taken up by the local police on receipt of the complaint regarding serious disturbance at the place, subsequently however turned around and served legal notice upon the plaintiff asserting their ownership. For the above reason, the suit has come to be filed. 5. Defendants specifically pleaded that the suit land was purchased by Bidyadhar, the father of the plaintiff sometime in the year 1985-86. In view of the fact that Hari Bhue, the original owner cum vendor was a member of Scheduled Tribe, no sale deed however had been registered. It is further stated that Bidyadhar had constructed seven kutcha houses and inducted different tenants over the different portions of the property and prior to his retirement, he had constructed pucca house over the suit land by spending money from the joint family fund. It is also stated that though the plaintiff had contributed a sum of Rs. 1,00,000/- for construction of the pucca house, it had been paid back to him by Bidyadhar at the time of his retirement. The defendant no. It is also stated that though the plaintiff had contributed a sum of Rs. 1,00,000/- for construction of the pucca house, it had been paid back to him by Bidyadhar at the time of his retirement. The defendant no. 1 has claimed to have stayed in the pucca house constructed thereon with their father, Bidyadhar. It is the further case of the defendants that the plaintiff and defendant no. 1 stayed jointly till allotment of quarter in favour of the plaintiff by the IDC. Prior to retirement of Bidyadhar, six numbers of pucca shop rooms had been constructed by him over the suit land from out of his retiral benefits and thus have been let out to different persons on monthly rent basis and Bidyadhar was collecting the rent from them. It is next stated that when Bidyadhar suffered from paralysis, defendant no. 1 went to the native village to look after him and during that period plaintiff was looking after the schedule ‘A’ land as well as the houses standing over there. After retirement of Bidyadhar in the year 1998, the plaintiff had been asked to regularize the matter. But the plaintiff taking the advantage of the situation, managed to obtain a registered sale deed in his favour. It is also the case of the defendants that the year 2003, they decided to take a truck for business so Bidyadhar sold some landed property in his natïve village and deposited a sum of Rs. 5,00,000/- in his joint account with defendant no. 2 and soon thereafter it was withdrawn and given to Suraj, the son of the plaintiff. Defendant no. 2 came to the plaintiff in the year 2005 and stayed in the portion of the suit house along with the plaintiff for the said transport business. That however in view of the disinterestedness of the plaintiff did not augur well. So the plaintiff had promised to return the said amount which he had taken for the purpose of transport business from Bidyadhar. With all these pleadings, they prayed to non-suit the plaintiff. 6. The trial Court on such rival pleadings has framed as many as nine issues. Rightly going to answer the crucial issues i.e. issue nos. So the plaintiff had promised to return the said amount which he had taken for the purpose of transport business from Bidyadhar. With all these pleadings, they prayed to non-suit the plaintiff. 6. The trial Court on such rival pleadings has framed as many as nine issues. Rightly going to answer the crucial issues i.e. issue nos. 3 and 4 with regard to nature of the property vis-à-vis claim of right, title and interest of the plaintiff over the same unto himself and to the exclusion of all others; upon analysis of the evidence and keeping in view the settled principles of law as also applying this in its wisdom has answered all those in favour of the plaintiff. Practically based upon the answers returned in respect of those two issues, the trial Court has decreed the suit for eviction as prayed for by the plaintiff. 7. The lower appellate Court being moved as is seen from the judgment has gone for the required examination of the sustainability of those findings returned by the trial Court under issue Nos. 3 and 4. On detail discussion of the evidence on record and again going through the principles of law governing the field, having not been able to accord any disagreement on those answers to the categorical findings rendered by the trial Court, the first appeal has been dismissed. 8. Learned counsel for the appellants submitted that the approach of the Courts below in deciding the issue no. 3 & 4 has been totally erroneous. He contended that the Courts below have wrongly placed the burden of proof upon the defendants to establish that the suit property is the joint family property having been acquired from out of the joint family funds. According to him, the burden of proof ought to have been placed upon shoulder of the plaintiff who was under the obligation to show that no joint family fund has been utilized for the purpose of acquisition of the property in question and for construction of the houses standing over it. He further submitted that the Courts below ought not to have presumed the property in question to be the exclusive property of the plaintiff merely basing upon the registered sale deed admitted in evidence and marked Ext. 1. He also submitted that the appreciation of evidence in deciding the issue nos. He further submitted that the Courts below ought not to have presumed the property in question to be the exclusive property of the plaintiff merely basing upon the registered sale deed admitted in evidence and marked Ext. 1. He also submitted that the appreciation of evidence in deciding the issue nos. 3 & 4 as has been done by the Courts below is not in consonance with the settled principle of law and thus, the final outcome i.e. the answers to these issues as had been recorded by the Courts below are unsustainable being the result of the perverse appreciation of evidence. He thus submitted that the substantial questions of law as stated in the memorandum of appeal arise for being answered in this appeal. Those are re-produced herein below:- (i) Whether the Courts below erred in placing the burden of proof as to ownership on the defendant to prove the oral sale? (ii) Whether the Courts below have justified in placing the burden wrongly on the defendants who claimed the suit property as a joint family acquisition? (iii) Whether the persons claiming joint family acquisition is required to establish the fact that the amount from joint family funds have been used/applied for joint family acquisition? (iv) Whether presumption is available to consider a particular item for property as joint family acquisition when the same has been acquired in the name of the eldest member of the Hindu Mitakshara Family? (v) Whether the Court can presume merely because the property has been acquired in the name of a person having separate income, is his self acquired property, in absence of any document to substantiate the same? (vi) Whether the non-framing of proper issue vitiates the entire proceeding? 9. Learned counsel for the respondent appearing in the case supported the concurrent finding of the Courts below. He submitted that there remains absolutely no material to show that the Courts below have appreciated the evidence in a perverse manner i.e. by ignoring some important evidence and keeping those out of the arena of consideration which if would have been so taken might have led the Courts below to arrive at a finding to the contrary. He submitted that there remains absolutely no material to show that the Courts below have appreciated the evidence in a perverse manner i.e. by ignoring some important evidence and keeping those out of the arena of consideration which if would have been so taken might have led the Courts below to arrive at a finding to the contrary. He further submitted that such concurrent findings of fact based on should appreciation of evidence and being tested in their proper perspective in the backdrop of rival case of the parties are not liable to be interfered with this second appeal. 10. In order to come to a conclusion as to existence of any substantial question of law and of so arises for the purpose being answered in this appeal, in side by side addressing the rival submission, it is felt appropriate to take note of some admitted factual aspects required to be kept in view. In the present, admittedly the property is found to have been purchased by the plaintiff by registered sale-deed Ext. 1 and this document is not questioned. Pursuant to the same, the land in suit has also been recorded in the name of the plaintiff. The defendant’s case is that it had earlier been purchased by the father of the plaintiff and defendant no. 1 and as because the vendor was the member of the Schedule Tribe, no sale deed had come into existence then. It is the further case of the defendants that such deed has been the creation of the plaintiff at a much later point of time. 11. The position of law is that all the Hindu family are presumed to the joint unless contrary is proved. But once severance of status is admitted, as in this case, the presumption does no more get carried. In the instant case, although plaintiff and defendant no. 1 are two brothers, it has not been proved that they had any joint family property either remaining in the hand of their father or coming to their hands after the death of their father Bidyadhar. Admittedly, Bidyadhar came to Bargarh in the year 1996 and served as a driver. Although it is stated that Bidyadhar had actually purchased the property, no such acceptable evidence surface on record. The vendor under the Ext. 1 was alive by the time of hearing of the suit. Admittedly, Bidyadhar came to Bargarh in the year 1996 and served as a driver. Although it is stated that Bidyadhar had actually purchased the property, no such acceptable evidence surface on record. The vendor under the Ext. 1 was alive by the time of hearing of the suit. He has not been called to the witness box from the side of the defendants. On the other hand the plaintiff had proved his sale deed which is a registered one by examining all the required persons and through them. The consolidation record of right as also the rent receipts have been admitted in evidence from the side of the plaintiff. There is no clinching evidence available on record especially being let in by the defendants that they had made any contribution in respect of the consideration paid by the plaintiff for purchasing the suit land. Admittedly, the plaintiff was also serving for quite some time, by the time of said purchase and he asserts to have purchased the property from his own funds. In such state of affairs in the evidence, no fault is found with the Court below in answering issue No. 3 & 4 discarding the case of the defendants as projected which has gone to favour the case of the plaintiff in obtaining the decree as prayed for. The submission of learned counsel for the appellant thus fails. 12. In the result, this Court finds that there surfaces no substantial question (s) of law meriting admission of this appeal. Accordingly, the appeal stands dismissed. In the facts and circumstances of the case, no order as to cost is passed.