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2017 DIGILAW 808 (ORI)

Ninimani Dei @ Nanimani Dei v. Maheswar Sahu

2017-07-28

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. Defendant is the appellant against a reversing judgment. 2. The respondent as plaintiff instituted C.S. No.462 of 2006 in the court of the learned Civil Judge (Sr. Divn.), Baripada for declaration of title and partition impleading the appellant as defendant. 3. An area measuring Ac.0.200 dec. appertaining to plot nos.78/191 under khata no.74/38 including the building standing thereon in mouza Sunagadia was the subject matter of dispute in the suit. 4. The case of the plaintiff is that he along with his 2nd wife-defendant purchased the suit schedule land from one Basu Rath and Urmila Das by means of two different registered sale deeds executed on 9.2.1977. Initially the plaintiff had constructed a tiled roof house. Subsequently he constructed a pucca house. The defendant married to one Pitabasa Naik of Pandhada and out of their wedlock, a son, namely, Nilamani Naik was born. When Nilamani was aged about 2 years, the defendant left her matrimonial house, leaving her son with her husband. She entered into Govt. service as A.N.M. in Health Department. The defendant while serving at Jamukeswar P.H.C. developed intimacy with one Satrughna Mohapatra and out of their wedlock, a son and a daughter were born. After sometime, Satrughna cut off relationship with the defendant. The defendant along with her son and daughter took shelter with her mother at Baripada town. The mother of the defendant used to purchase grocery articles from the shop of the plaintiff. During that time the defendant accompanied her mother to his shop. They developed intimacy. Defendant’s mother requested the plaintiff to look after her future. Thereafter they lived as husband and wife and out of their wedlock, one daughter namely, Sanjukta was born. In the year 1977, the plaintiff purchased the suit land along with the defendant. The plaintiff contributed 3/4th share, whereas the defendant contributed 1/4th share towards consideration. After purchase, the plaintiff constructed a tiled roof house consisting of five rooms with his own money and kept the defendant in the said house. Subsequently the plaintiff had constructed the suit building from his own income. The plaintiff used to pay rent to the State as well as tax to the Municipality and got the electric connection in his name to the suit house. The suit land has been recorded jointly in the name of the plaintiff and defendant in the ROR. Subsequently the plaintiff had constructed the suit building from his own income. The plaintiff used to pay rent to the State as well as tax to the Municipality and got the electric connection in his name to the suit house. The suit land has been recorded jointly in the name of the plaintiff and defendant in the ROR. When the plaintiff expressed his desire to partition the suit land as well as the house in the year 2005 and 2006, the defendant did not agree with the proposal for which he instituted the suit seeking the reliefs mentioned supra. 5. Pursuant to issuance of summons, the defendant entered appearance and filed written statement. The case of the defendant is that she entered into the Govt. service in the year 1967. During the period from 1969 to 1971, she had purchased four acres of cultivable lands in mouza Umadeipur. She was getting a substantial income from the same. She had constructed the house over the suit land, let out the same to the tenants and received some rent. Out of her income, she constructed both the suit houses. The defendant had admitted that she had also married to Pitabas Naik and at the time of separation, she received a substantial amount towards her permanent alimony. The defendant had also admitted that in the year 1966 both had developed relationship with each other, live as husband and wife and out of their wedlock one son and two daughters were born. When the defendant requested the plaintiff to purchase a land at Baripada town, the plaintiff managed to prepare the sale deed in the name of both, though the entire consideration money was paid by the defendant. The said fact was not within her knowledge. Further case of the defendant is that the plaintiff had no surplus income to contribute to purchase the suit land as well as for construction of the suit building. 6. On the interse pleadings of the parties, learned trial court struck five issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf seven documents had been exhibited. The defendant had examined five witnesses and on her behalf nine documents had been exhibited. 7. 6. On the interse pleadings of the parties, learned trial court struck five issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf seven documents had been exhibited. The defendant had examined five witnesses and on her behalf nine documents had been exhibited. 7. Learned trial court came to hold that the plaintiff did not have any surplus income to contribute for purchase of the suit land as well as construction of the building thereon. Held so, it dismissed the petition. Assailing the judgment and decree of the learned trial court, the plaintiff filed appeal in the court of the learned District Judge, Baripada, which was subsequently transferred to the court of the learned Additional District Judge, Baripada and renumbered as R.F.A. No.62/13 of 2010. Learned appellate court came to hold that the plaintiff had derived income from the grocery shop and made contribution for purchase of the suit land as well as construction of the suit building. The defendant did not have such income to construct those suit buildings alone without receiving any financial assistance from the plaintiff. Held so, it allowed the appeal. 8. Heard Mr. Swayamjeet Rout, learned counsel appearing on behalf of Mr. Sameer Kumar Mishra, learned counsel for the appellant. 9. Mr. Rout, learned counsel for the appellant submitted that the husband of the defendant had no income. He had not paid any amount towards consideration for purchase of the land. The plaintiff had also not contributed any amount for construction of the house. In the evidence, the husband had not stated his income at the relevant point of time when the sale deed was executed. All the witnesses examined by the defendant unequivocally stated that the plaintiff had no income. The finding of the learned appellate court is perverse. 10. Certified copy of the registered sale deed nos.720 and 721, dated 9.2.1977 had been marked as Exts.1 and 2. The suit land had been purchased by the plaintiff and defendant jointly. The recitals of the sale deeds are clear and unambiguous. The record of right has been published in their names. The learned appellate court on a threadbare analysis of the evidence on record as well as pleadings held that the plaintiff had substantial income from his grocery business. He paid consideration amount. He made contribution for construction of house. The recitals of the sale deeds are clear and unambiguous. The record of right has been published in their names. The learned appellate court on a threadbare analysis of the evidence on record as well as pleadings held that the plaintiff had substantial income from his grocery business. He paid consideration amount. He made contribution for construction of house. There is no perversity or illegality in the finding of the learned appellate court. 11. In the result, the appeal is dismissed since the same does not involve any substantial question of law.