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2018 DIGILAW 182 (ORI)

Kadambini Devi v. Chandramani Senapati

2018-02-12

A.K.RATH

body2018
JUDGMENT : Dr. A.K. Rath, J. Plaintiffs are the appellants against a confirming judgment in a suit for permanent injunction. 2. The case of the plaintiffs was that one Raghunath Singh was the recorded owner of the suit property. After his death, his son, Harekrushna became the owner of the suit property. Harekrushna died in the year 1981 leaving his widow, plaintiff no.1 and sons, plaintiff nos.2 to 9. They became the owners of the suit property. They were in possession of the suit land. Their names had been mutated. They used to pay rent. The defendant had no semblance of right, title and interest over the suit land. The alleged sale deed dated 21.6.1988 executed by the three sons of Radharani, 1st wife of Harekrushna, is void and the defendant had not acquired any right over the same. With this factual scenario, they instituted the suit seeking the relief’s mentioned supra. 3. The defendant filed written statement denying the assertions made in the plaint. The case of the defendant was that Raghunath was the owner of the suit land. He had two sons, namely, Rama and Harekrushna. There was a partition amongst the co-sharers. The same was reduced to writing and registered on 22.11.1944. After death of Raghunath, Harekrushna kept a concubine, plaintiff no.1 and plaintiff nos.2 to 9 are their children. The suit property fell to the share of Harekrushna and after his death, his wife, Radharani and sons alienated the suit property. The vendors sold an area of Ac.0.225 dec. out of Ac.0.665 dec. by means of a registered sale deed dated 21.6.88 to the defendant. The plaintiffs had no title over the same. They managed to record their names in respect of the suit land in Revenue Misc. Case No.39/85. 4. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence oral and documentary. Learned trial court dismissed the suit holding, inter alia, that when the title was in dispute, simple suit for permanent injunction was not maintainable. Plaintiffs had failed to prove their exclusive ownership over the suit property. They had not impleaded all the successors of Harekrushna including the vendees of the defendant. The defendant had challenged the title of the plaintiffs over the entire portion of the suit land. There is a cloud over the title of the plaintiffs over the entire suit property. Plaintiffs had failed to prove their exclusive ownership over the suit property. They had not impleaded all the successors of Harekrushna including the vendees of the defendant. The defendant had challenged the title of the plaintiffs over the entire portion of the suit land. There is a cloud over the title of the plaintiffs over the entire suit property. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the learned trial court in appeal before the learned District Judge, Bhubaneswar, which was subsequently transferred to the court of the learned 2nd Additional District Judge, Bhubaneswar and renumbered as T.A. No.25/23 of 1997/93. Learned appellate court came to hold that Harekrushna married to Radharani. The plaintiff no.1 is the 2nd wife of Harekrushna. In view of the specific plea of defendant regarding the execution of the deed of partition dated 22.11.1944 and admission made by the plaintiff no.2, it can be said that the suit schedule land fell to the share of Harekrushna. Harekrushna died leaving behind 15 children. The suit had been instituted by only 9 excluding other seven. Radharani was the legal married wife of Harekrushna. Three sons of Radharani out of seven sold the land to the defendant. Held so, it dismissed the appeal. 5. The second appeal was admitted on the following substantial questions of law. “(i). Whether the finding of the learned lower appellate court that the plaintiffs being some of the children of late Harekrushna and the other children having not been impleaded as parties to the suit, the plaintiffs cannot maintain a suit for permanent injunction is sustainable in law. (ii). When admittedly the defendant has purchased the undivided interest of some of the co-sharers from a joint property is the finding of the learned court below that the plaintiffs should have filed a suit for declaration of title in stead of a suit for permanent injunction is correct in law.” 6. Heard Mr. Bhaskar Chandra Panda, learned counsel, on behalf of Mr. Bidyadhar Mishra, learned counsel for the appellants. None appeared for the respondent. 7. Mr. Panda, learned counsel for the appellants, submitted that defendant was examined as D.W.1. He admitted that plaintiff no.1 is the 2nd wife of Harekrushna. D.W.2, one of the vendors of the defendant, deposed that plaintiff nos.2 to 9 are the sons of plaintiff no.1. Bidyadhar Mishra, learned counsel for the appellants. None appeared for the respondent. 7. Mr. Panda, learned counsel for the appellants, submitted that defendant was examined as D.W.1. He admitted that plaintiff no.1 is the 2nd wife of Harekrushna. D.W.2, one of the vendors of the defendant, deposed that plaintiff nos.2 to 9 are the sons of plaintiff no.1. The defendant pleaded that he had only purchased an area of Ac.0.225 dec. out of Ac.0.440 dec. of land. Learned trial court is not justified in dismissing the suit. Learned trial court held that the suit land was in possession of the sons of Radharani, Kadambini and her children. Learned court below ought to have held that plaintiffs are in possession of the undisputed area of Ac.0.440 dec. of land and decreed the suit in part. The suit property was not partitioned among the sons of Harekrushna. He further submitted that the alleged sale deed was a void one. No consideration was passed. But then, learned trial court had not framed any issue and rendered any finding. The suit schedule land was in possession of the sons of Harekrushna. All have equal shares. The defendant cannot possess the same without seeking relief for partition. The co-sharers have interest in the suit schedule property. Thus the plaintiffs have locus standi to institute the suit for partition. 8. The suit land originally belonged to Raghunath. After his death, Harekrushna succeeded to the same. Harekrushna died in the year 1981. Learned trial court came to hold that Harekrushna married to Radharani. Kadambani, plaintiff no.1, is the 2nd wife of Harekrushna. Three sons of Harekrushna and Radharani, namely, Gouri Sankar, Girija Sankar and Debi Prasad alienated the suit land in favour of the defendant. There is no prayer to set aside the sale deed. 9. In Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033 , the apex Court held that where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 10. Neither Radharani nor her sons are parties to the suit. A cloud of suspicion is raised over the title of the plaintiffs. Thus the simple suit for permanent injunction is not maintainable. The substantial questions of law are answered accordingly. 10. Neither Radharani nor her sons are parties to the suit. A cloud of suspicion is raised over the title of the plaintiffs. Thus the simple suit for permanent injunction is not maintainable. The substantial questions of law are answered accordingly. 11. In the ultimate analysis, the appeal fails and is dismissed. There shall be no order as to costs.