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2017 DIGILAW 1277 (ORI)

Ramesh Chandra Behera v. Arakhita Behera

2017-11-08

A.K.RATH

body2017
JUDGMENT : Dr. A.K.Rath, J. 1. Defendants are appellants against an affirming judgment. 2. The following genealogy would show the relationship of the parties. Genealogy Budhia Behera Gouranga Balaji (died unmarried) Balaji @ Bala Haribandhu Jagabandhu Ganapati Bauri Raghunath Ramesh (D-1) Gobinda (D-2) Arakhita (P-1) Dasarathi (P-2) Madan (P-3) Baidyanath (P-4) Panchu (P-5) The case of the plaintiffs is that the suit property described in Schedule-‘A’ and ‘B’ is their ancestral property. The same was recorded in the name of their grandfather, Balaji Behera. On 21.04.1953, Raghunath Behera, father of the plaintiffs, mortgaged the suit lands by conditional sale in favour of Udhab Roul. Since the mortgage was not redeemed within the stipulated period, the properties were sold to Udhab Roul. Subsequently, the plaintiffs purchased the suit properties by means of a registered sale deed dated 16.06.1961 for a consideration of Rs.200/-, vide Ext.3. They are in possession of the same. It was further pleaded that since their father shifted to Bhadrak, they went to Bhadrak to eke out their livelihood. Since they were not staying in the village, they entrusted the suit property to Ganapati Behera, uncle of defendant no.1, to look after the suit land as well as house. Ganapati Behera used to pay rajbhag to them. After his death, the same was entrusted to defendant no.1. He was looking after the properties on behalf of the plaintiffs. In January 1988, when the plaintiffs came to the village to collect rajbhag, defendant no.1 denied the title of the plaintiffs and claimed title over the suit property. With this factual scenario, the plaintiffs instituted the suit for recovery of possession of the suit schedule properties. 3. Defendants entered contest and filed their written statement. The case of the defendant no.1 was that Budhia Behera was the common ancestor. He had four sons, namely, Gouranga, Balaji, Jagabandhu and Hadibandhu. Plaintiffs belong to the branch of Balaji. Defendant no.1 belongs to the branch of Jagabandhu. Gouranga, the eldest son died unmarried. Thereafter Balaji being the eldest male member became the karta of the joint family. Balaji, grandfather of the plaintiffs, was the karta of the joint family. The R.O.R. was published in his name. Taking advantage of the erroneous entry, the father of the plaintiffs mortgaged the suit property. The other family members were not aware of the same. Thereafter Balaji being the eldest male member became the karta of the joint family. Balaji, grandfather of the plaintiffs, was the karta of the joint family. The R.O.R. was published in his name. Taking advantage of the erroneous entry, the father of the plaintiffs mortgaged the suit property. The other family members were not aware of the same. The plaintiffs and their father had shifted to Bhadrak for eking out livelihood. Similarly, Hadibandhu, uncle of defendant no.1 had left the village for Aska. Balaji and Hadibandhu had relinquished their share in favour of the defendants. Mere entry of the name of Balaji in the R.O.R. has of no significance. 4. On the, inter se, pleadings of the parties, the learned trial court struck eight issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court held that the father of the plaintiffs had not relinquished his right over the suit property in favour of defendant no.1. Defendant no.1 had failed to prove to be the absolute owner of the suit property. The plaintiffs had purchased the same by means of a registered sale deed dated 16.06.1961 vide Ext.3 and had been paying rent. They are in possession of the suit property. Held so, it decreed the suit. Assailing the judgment and decree, the defendants filed T.A. No. 13 of 1992 in the court of learned Civil Judge (Senior Division), Chatrapur, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law:- “(1) Whether the lower appellate court is correct in holding that in the absence of deed of relinquishment the plaintiffs’ suit with regard to the disputed property should have been decreed ? (2) Whether the courts below committed an error in relying on the R.O.R. to hold that the family was joint in status ?” 6. Mr.B.C. Panda, learned counsel for the appellants submits that the plaintiffs had relinquished their interest over the suit property in favour of the defendants. Haribandhu, another son of Budhia had also relinquished his share in favour of defendants. The same was oral transaction. Thus, the same does not require registration. He further submits that Raghunath, father of the plaintiffs had shifted to Bhadrak long since. The defendants have right over the suit property. Haribandhu, another son of Budhia had also relinquished his share in favour of defendants. The same was oral transaction. Thus, the same does not require registration. He further submits that Raghunath, father of the plaintiffs had shifted to Bhadrak long since. The defendants have right over the suit property. Both the courts below committed a manifest illegality and impropriety in holding that plaintiffs are the owners of the suit property. He relies upon a decision of Bombay High Court in the case of Ramdas Chimna vs. Pralhad Deorao and others, AIR 1965 Bom 74 . 7. Per contra, Mr. P.C. Panda, learned counsel for the respondents submits that there is no provision in the Transfer of Property Act for oral relinquishment. Both the courts concurrently held that there is no relinquishment of the properties by the plaintiffs. The same is a finding of fact. 8. Admittedly, the plaintiffs have purchased the suit property from the recorded owner by means of a registered sale deed dated 16.06.1961 vide Ext.3. Defendants failed to substantiate the plea of oral relinquishment. This is essentially a finding of fact. Both the courts disbelieved the plea of oral relinquishment and held that the plaintiffs are the owner of the suit property. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 9. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.