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2017 DIGILAW 1421 (ORI)

Chintamani Sahu v. Rama Chandra Sahu

2017-12-08

A.K.RATH

body2017
JUDGMENT : Dr. A.K. RATH, J. The defendants are the appellants against an affirming judgment. 2. The plaintiff-respondent instituted the suit for declaration that the sale deed bearing no.411 dated 21.2.1987 executed by Sikhar Sahu in favour of defendant nos.1 and 2 as void and not binding on him. The case of the plaintiff is that he is the son of Sikhar Sahu His father had two wives. He and Haribandhu Sahu are the sons of Sikhar through his first wife, Purnima. Lingaraj and Chintamani are his sons through his second wife, Jema. Pramila Sahu-defendant no.2 is the wife of Lingaraj Sahu. Haribandhu left his ancestral house. He was residing in his father-in-law’s house as illatom son-in-law. The plaintiff was ill-treated and neglected by his step mother as well father. He left for Bhubaneswar to earn his livelihood. Taking advantage of his absence from the village, the defendants clandestinely managed to obtain a sale deed dated 21.2.1987 (Ext.1) from his father in their favour in respect of the homestead land including the ancestral dwelling house. No consideration was paid. His father had no legal necessity to sell the entire homestead land of A0.07 dec. including the dwelling house standing thereon in favour of the defendants. The sale deed was executed to deprive the plaintiff from his entitlement of the suit joint family homestead land including the ancestral dwelling house standing thereon. His father had no right to transfer the land in favour of the defendants without his consent. He is a coparcener. He has got right, title and interest in the suit property to the extent of his share. He came to know about the execution of the impugned sale deed only on 21.7.94. With this factual scenario, he instituted the suit seeking the relief’s mentioned supra. 3. The defendants filed written statement stating inter alia that the suit for declaration without any consequential relief is not maintainable. The suit is bad for non-joinder of necessary party. The specific case of the defendants is that Sikhar Sahu disposed of the suit property in their favour as a manager of the joint family. The suit land is the self-acquired property of Sikhar Sahu. The plaintiff had purchased other lands on 8.2.86 and 28.12.84. The plaintiff had relinquished his share after receiving Rs.12,000/-from Sikhar Sahu in the year 1972. 4. The suit land is the self-acquired property of Sikhar Sahu. The plaintiff had purchased other lands on 8.2.86 and 28.12.84. The plaintiff had relinquished his share after receiving Rs.12,000/-from Sikhar Sahu in the year 1972. 4. Stemming on the pleadings of the parties, the learned trial court struck seven issues. The parties led evidence. The learned trial court came to hold that the suit property is not the self-acquired property of Sikhar Sahu. The same is an ancestral property of the parties. The sale deed dated 21.2.1987 is void and not binding on the plaintiff. Felling aggrieved, the defendants filed appeal before the learned Ist Additional District Judge, Cuttack in Title Appeal No.13 of 1996, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.1 and 5 of the appeal memo. “1. In view of the proviso as enshrined under Section 34 of the Specific Relief Act, 1963 and in absence of any prayer for recovery of possession and consequential relief whether the suit in question is maintainable where a Hindu coparcener sue for a declaration that the sale effected by the manager is sham, fake, void, inoperative and not binding on him and whether both the courts below committed gross error of law by allowing the suit in absence of any prayer for recovery of possession ? (5) Whether non-consideration of the documentary evidence as in Ext. A to Ext. Z which are material evidence on record vitiates the judgment and decree passed by the court below ?” 6. Mr. A.K. Mahakud, learned Advocate for the appellants submitted that the suit property was the ancestral property of Sikhar Sahu. The same was not partitioned by meets and bounds. There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family is, therefore, in the first instance upon the person who claims it as joint family property. There is ample evidence on record that the suit property had been purchased by Sikhar Sahu from different persons. The same is the self-acquired property of Sikhar Sahu. The learned appellate court has not considered the evidence on record and concurred with the findings of the learned trial court. Non-consideration of Exhibits A, C, D, E, F, S, T and V vitiate the judgment. The same is the self-acquired property of Sikhar Sahu. The learned appellate court has not considered the evidence on record and concurred with the findings of the learned trial court. Non-consideration of Exhibits A, C, D, E, F, S, T and V vitiate the judgment. He placed reliance on the decisions of the apex Court in the case of Kuppala Obul Reddy v. Bonala Venkata Narayana Reddy (dead) through Lrs., AIR 1984 SC 1171 and Boodireaddy Chandraiah and others v. Arigela Laxmi and another, 2008 (I) OLR (SC)-197. 7. Per contra, Mr. R.C.Rath, learned Advocate for the respondent contended that both the courts below currently held that the suit property is not the self-acquired property of Sikhar Sahu. The same is the joint family property of the parties. The documents filed under Exts. A, E and F are the sale deeds in respect of the properties purchased by Sikhar Sahu at different point of time. Out of them, only Ext.A relates to A0.01 dec. of the suit land. The other documents do not relate to suit land. There is no evidence to show that A0.01 dec. of land was purchased from Sikhar’s own funds. On the other hand, it is the defendants’ own case that Sikhar Sahu in the capacity of Manager of joint family disposed of the suit land for legal necessity in their favour. The defendants have failed to show as to how non-consideration of the documents Exts. A to Z vitiate the judgment. 8. In Kuppala Obul Reddy (supra), the apex Court held that there may be presumption that there is a Hindu Joint Family, but there can be no presumption that the joint family possesses joint family properties. 9. Dealing with the scope of 100 C.P.C., the apex Court in the case of Boodireaddy Chandraiah (supra) held that the High Court will not interfere with concurrent findings of the courts below. But it is no absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. But it is no absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. ‘Decision based on no evidence’, not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 10. On a bare perusal of the judgment of the appellate court, it is evident that the appellate court has not considered the oral and documentary evidence adduced by the parties. After referring to the case of the parties, it abruptly came to hold that there is no evidence on record to establish that the suit property was purchased by Sikhar Sahu from out of his own earnings and not from the income of joint family. The learned appellate court recorded the finding on an assumption not supported by any evidence. It failed to consider the entire documentary evidence on record on the basis of which finding was recorded. As held by the apex Court in the case of Boodireaddy Chandraiah (supra) that ignoring a relevant and material piece of documentary evidence is a serious error of law having a vitiating effect on the findings of appellate courts. 11. In the result, the judgment and decree of the learned appellate court is set aside. The appeal is remitted back to the learned appellate court for de novo hearing. In order to avoid further delay, the parties shall appear before the learned 1st Additional District Judge, Cuttack on 5th January, 2018 on which date, the learned appellate court shall fix a date of hearing and conclude the hearing of the appeal within a period of three months thereafter.