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2017 DIGILAW 229 (ORI)

Amulya Kumar Behera v. Haripada Das

2017-03-03

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. Defendant nos.1 and 5 are the appellants against a confirming judgment. 2. Respondent no.1-plaintiff instituted O.S. No.14 of 1982-I in the court of the learned Subordinate Judge, Balasore for partition of the suit property and in the alternative for delivery of possession of the land purchased by him and for correction of settlement ROR. 3. The case of the plaintiff is that the suit land measuring Ac.0.21 dec. was the joint Lakharaj property of Pratap Singh and Bijay Chandra Singh. By an amicable partition, Pratap was possessing the eastern half measuring Ac.0.10½ decimals and Bijay was possessing the remaining half portion in the west. On 06.04.1957, Pratap sold his entire share of Ac.0.10½ decimals to Raghunath Behera, the father of defendant no.1, by means of registered sale deed. On 1.6.1974, Raghunath sold Ac.0.02 decimal out of Ac.0.10 ½ dec to Pratap by means of registered sale deed for a consideration of Rs.200/-. On 20.09.1974, Raghunath again sold Ac. 0.04 dec. of land to Pratap from out of the remaining Ac. 0.08½ dec. for a consideration of Rs.400/-. While the matter stood thus, Pratap again sold Ac.0.03 dec. of land of north and western side to defendant no.1 by means of registered sale deed. Thereafter, Pratap sold remaining Ac.0.03 dec of land in the south–west to the plaintiff for a consideration of Rs.2000/-by means of registered sale deed dated 20.01.1982 and put the plaintiff is in possession. The further case of the plaintiff is that on 22.01.1982, defendant no.1 threatened to dispossess the plaintiff from his purchased Ac.0.03 decimals of land for which he requested the defendants for partition by metes and bounds of the entire Schedule-Ka property. Further, M.S. R.O.R, in which his name has been omitted requires correction. 4. Pursuant to issuance of notice, defendant no.1 and 5 entered appearance and filed a written statement. Defendants no.1 in his written statement admitted the separate possession of Bijaya and Pratap in equal shares of Schedule-Ka property. The purchase of the eastern half measuring Ac.0.10½ decimals from Pratap by Raghunath has not been disputed by defendant no.1. The execution of two separate registered deeds by Raghunath in favour of Pratap in respect of Ac.0.06 decimals of land is also not disputed by defendant no.1. The purchase of the eastern half measuring Ac.0.10½ decimals from Pratap by Raghunath has not been disputed by defendant no.1. The execution of two separate registered deeds by Raghunath in favour of Pratap in respect of Ac.0.06 decimals of land is also not disputed by defendant no.1. According to him, these two registered deeds are not sale deeds but are mortgaged deeds created for the purpose of security against loan incurred by Raghunath from Pratap in two phases amounting to Rs.200/-and Rs.400/-respectively with a right of repurchase by virtue of an oral agreement entered into by both of them. It is specifically pleaded that by virtue of that oral agreement, he and his father approached Pratap with Rs.400/ and requested him to return the sold Ac.0.06 decimals of land to them but Pratap demanded the principal amount of Rs.600/-and interest of Rs.100/-thereon for transferring the purchased land in their favour. As they expressed their inability to repay the entire amount, Pratap received Rs.400/-from them and executed a registered sale deed in respect of Ac.0.03½ decimals of land out of the said purchased Ac.0.06 decimals on 25.07.1979. He promised to transfer the remaining Ac.0.02½ decimals after receiving rest amount of Rs.300/-. As Raghunath died and defendant no.1 was facing financial difficulty, he could not repay the rest loan amount of Rs.300/-. In the month of Margasir, defendant no.1 approached Pratap with Rs.300/-for redemption of the remaining Ac.0.02 ½ dec. but Pratap refused to retransfer the land unless the entire upto date interest was paid. Thereafter, defendant no.1 approached Pratap with some local gentlemen for the purpose but Pratap resiled from the promise for which he became unable to get back Ac.0.02½ decimal of land. In the meantime Pratap has executed a registered sale deed in respect of Ac.0.03 dec. of land though he was the owner of Ac.0.02½ dec. of land. It is further stated that as the impugned deeds are not sale deeds but mortgaged deeds, Pratap was never put into possession of the same by Raghunath. Raghunath and after him, defendant no.1 had been possessing the same as part and parcel of his house and homestead in one enclosure. 5. On the inter se pleadings of the parties, learned trial court framed eight issues, out of which issue no.3 is pivotal. The same is quoted below; “3. Raghunath and after him, defendant no.1 had been possessing the same as part and parcel of his house and homestead in one enclosure. 5. On the inter se pleadings of the parties, learned trial court framed eight issues, out of which issue no.3 is pivotal. The same is quoted below; “3. Are the sale deeds dated 1.6.74 and 20.9.74 executed by father of the defendant no.1 in favour of Pratap Chandra Singh real sale deeds and transferred title in his favour or they are only “Biswasi Kabalas” or securities for loans incurred by the father of the defendant no.1 from the said Pratap Chandra Singh ?” 6. Learned trial court held that Exts.1 and 2 are valid sale deeds. Held so, learned trial court decreed the suit. Defendant nos.1 and 5 assailed the judgment and decree before the learned District Judge, Balasore in SJ Appeal No.62 of 1991-I, which was eventually dismissed. 7. The appeal was admitted on ground Nos.(a) to (e) enumerated in the appeal memo. The same are quoted below; “(a) Whether the learned lower appellate court has misconstrued the provision U/s. 92 of the Indian Evidence Act in coming to the conclusion that there was no separate written statement showing the sale deed to be treated as securities for loan ? (b) Whether the learned lower appellate court is correct in decreeing the suit for demarcation of the land in question by misinterpreting the provisions of Order 41 Rule 22 read with Order 41 Rule 33 of Civil Procedure Code and thereby there is a clear error in procedure committed by the court in granting the said relief to the plaintiff even though admittedly the plaintiff did not choose to file any errors objection against the judgment of the learned trial court ? (c) Whether the finding with regard to the adverse possession for which an additional issue was framed by the learned lower appellate court is contrary to the materials available on records ? (d) Whether the learned lower appellate court has misconstrued the recitals of Exhibits 1 & 2 in order to come to a conclusion that it is not a sale out and out but it is a normal sale deeds executed as securities for loan ? (d) Whether the learned lower appellate court has misconstrued the recitals of Exhibits 1 & 2 in order to come to a conclusion that it is not a sale out and out but it is a normal sale deeds executed as securities for loan ? (e) Whether the learned courts below committed a serious error of law and procedure in not considering the bar under Section 39 of Orissa Estates Abolition Act while taking into consideration the rent schedule in OEA Case No.26 of 1976 ?” 8. Mr. Satyasiba Das on behalf of Mr. Amit Kumar Bose, learned counsel for the appellants, submitted that Exts.1 and 2 are Biswasi Kabalas. Both the courts below have wrongly interpreted the sale deeds and, as such, the judgments of the courts below are perverse. 9. Per contra, Mr. Mohapatra, learned counsel for the respondent no.1, submitted that both the courts below concurrently held that Exts.1 and 2 are sale deeds. There is no perversity or illegality in the impugned judgment of the courts below. 10. On an interpretation of documents vide Exts.1 and 2, both the courts below concurrently held that those are sale deeds. The recital of the sale deeds unerringly shows that the father of defendant no.1 alienated the land in favour of Pratap for a valid consideration. Possession of the land was duly delivered to the vendee. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are accordingly answered. 11. In the result, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed.