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2018 DIGILAW 201 (ORI)

Shankarshan Panda v. Krushna Dhani

2018-02-19

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration that recording of the suit schedule land jointly in the names of Kinei Dhani and Benu Dhani in the M.S. ROR is wrong, defendant has no title over the same and permanent injunction. 2. Case of the plaintiff was that the suit schedule land was a part of Khata No.142, Plot No.48, Ac.3.44 dec. The same belonged to Akadashi Patra, Sankhali Patra and Arjuni Patra. The suit land fell to the share of Arjuni in the partition. Arjuni alienated an area of Ac.3.44 dec. to Kinei Dhani by means of a registered sale deed dated 15.4.1944. Kinei was in possession of the suit land. He sold an area of Ac.1.50 dec. out of Ac.3.44 dec. to one Bairagi Nath and delivered possession. Kinei alienated the rest of the land of Ac.1.94 dec. (suit land) to the plaintiff by means of a registered sale deed dated 26.4.1974 for a valid consideration and thereafter delivered possession to him. The suit land has been recorded as Plot No.68 Ac.1.79 dec. in the major settlement. The plaintiff is in possession of the same. He used to raise paddy crops. The defendant has no semblance of title over the same. The suit land has been wrongly recorded in the names of Kinei and Benu-father of defendant. 3. Defendant entered contest and filed a written statement denying the assertions made in the plaint. Case of the defendant was that Kinei and Benu are sons of Sudarsan. Kinei is the elder brother of Benu. Benu died in the year 1969 while he was in joint mess and property with Kinei. He is the son of Benu. After death of his father, he was in joint mess and property with Kinei. Kinei was the karta of the family. Kinei and Benu had enough joint family property. Out of the income of the joint family, Kinei purchased Ac.3.44 dec. of land appertaining to Khata No.48 from Arjuni. The consideration was paid from out of the income of the joint family property. The sale deed was executed in favour of Kinei, since he was the karta of the family. Kinei and Benu jointly possessed the land. They appropriated usufructs jointly. Kinei and Benu had eight annas share in the suit land. Kinei had transferred Ac.1.50 dec. The consideration was paid from out of the income of the joint family property. The sale deed was executed in favour of Kinei, since he was the karta of the family. Kinei and Benu jointly possessed the land. They appropriated usufructs jointly. Kinei and Benu had eight annas share in the suit land. Kinei had transferred Ac.1.50 dec. to one Bairagi Nath by means of a registered sale deed. The rest Ac.1.79 dec. had been jointly recorded in the name of Kinei and Benu in the major settlement. Kinei was not in a proper state of mind. Plaintiff is the son-in-law of Kinei. Taking advantage of illness of Kinei in the year 1974, the plaintiff got the sale deed executed in his name. Plaintiff exercised undue influence on Kinei. No consideration was paid. The plaintiff has no title over the suit land. 4. On the inter se pleadings of the parties, learned trial court has framed ten issues. Both the parties led evidence, oral and documentary, in support of their cases. On an analysis of the evidence on record and the pleadings, learned trial court held that the suit land had been jointly recorded in the names of Kinei and Benu in the ROR vide Ext.A. Kinei was in joint mess with Benu. There is no pleading that Kinei was separated in mess and property from Benu. Kinei and Benu were in joint mess and property by the time of purchase of the suit land. It further held that P.Ws.2 and 3 have admitted that Kinei and Benu had more than Ac.5.00 dec. of land. There was sufficient nucleus of the joint family property out of which, the suit land had been purchased for a consideration of Rs.60/-only. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned District Judge, Bharak in Title Appeal No.24/135 of 1985/87-I, which was eventually dismissed. 5. The second appeal was admitted on the following substantial question of law enumerated in Ground No.1(E) of the appeal memo. “Both the courts below having found that the suit property is joint property of Kinei and his brother in which Kinei had eight annas share and that the Kabala executed by Kinei in favour of the plaintiff is genuine and for consideration, should the courts below ignore the plaintiff’s title to the extent of Kinei’s share and dismiss the entire suit ? 6. Heard Mr. D.P. Mohanty on behalf of Mr. B.H. Mohanty, learned Senior Advocate for the appellant. None appeared for the respondent. 7. Mr. Mohanty, learned counsel for the appellant submitted that the suit land originally belonged to Akadashi Patra, Sankhali Patra and Arjuni Patra. In an amicable partition, Ac.3.44 dec. was allotted to the share of Arjuni. For legal necessity, Arjuni alienated Ac.3.44 dec. to Kinei by means of a registered sale deed dated 15.4.1944. Kinei became the owner of the land. He executed a sale deed in favour of Bairagi Nath in respect of an area Ac.1.50 dec. While the matter stood thus, to press legal necessity Kinei alienated Ac.1.94 dec. (suit land) to the plaintiff by means of a registered sale deed dated 26.4.1974 for a valid consideration and thereafter delivered possession to him. The plaintiff is in possession of the suit land. Defendant has no semblance of right, title and interest over the same. He further contended that no case has been made out by the defendant that the joint family had sufficient nucleus for acquisition of the suit land. There is no presumption that a Hindu family merely because it is joint, possesses any joint property. In the absence of any averment in the written statement about the existence of the joint family nucleus and in the absence of any proof in this regard, the trial court has committed manifest illegality and impropriety in dismissing the suit. He cited a decision of this Court in the case of Radha Pandiani v. Sarat Chandra Sabat and others, AIR 1984 Orissa 222. 8. Before proceeding further, it is apt to refer to a Division Bench decision of this Court in the case of Radha Pandiani (supra). This Court held – 6. If a joint family is possessed of nucleus sufficient to make the impugned acquisition, a presumption may arise that the acquisition standing in the name of the person in the management of the family is a family acquisition. Before this presumption is drawn, there must be a joint family, the joint family must be in possession of nucleus sufficient to make the acquisition and the acquisition must have been made by the person in charge of the management of the family. Before this presumption is drawn, there must be a joint family, the joint family must be in possession of nucleus sufficient to make the acquisition and the acquisition must have been made by the person in charge of the management of the family. No case had been made out by the appellant that she and her brothers were possessed of joint family nucleus sufficient for the acquisition of the lands it question. (There is no presumption that a Hindu family merely because it is joint, possesses any joint property. Law does not prohibit a member even of a joint family from acquiring any property for his own benefit. The burden of proving that any particular property is joint primarily rests on the party who alleges the same. In the absence of any averment in the plaint about the existence of the joint family nucleus and in the absence of any proof in this regard, the contention raised by the learned counsel for the appellant for the first time in this court cannot prevail. 9. Reverting back to the facts of the case at hand and keeping in view the enunciation of law laid down in Radha Pandiani (supra), this Court finds that Kinei and Benu were two brothers. Kinei was the elder brother. He purchased an area of Ac.3.44 dec. from Arjuni Patra by means of a registered sale deed for a consideration of Rs.60/-. Both the courts concurrently held that the evidence on record reveals that family had property of more than Ac.5.00 dec. There was sufficient nucleus of the joint family to purchase the suit property. Defendant was examined as D.W.1. In his evidence he has stated that the family had Ac.5.00 dec. of land when the suit land was purchased. Kinei was the karta of the family. The suit land was purchased from the joint family fund in the name of Kinei, since he was karta of the family. This is essentially a finding of fact. There is no perversity or illegality in the findings of the courts below. 10. The submission of Mr. Mohanty, learned counsel for the appellant that there was no objection by the defendant or his father with regard to sale made in the year 1944 in favour of Kinei is noted to be rejected. Admittedly Kinei had half share over the suit property. 10. The submission of Mr. Mohanty, learned counsel for the appellant that there was no objection by the defendant or his father with regard to sale made in the year 1944 in favour of Kinei is noted to be rejected. Admittedly Kinei had half share over the suit property. He alienated a portion of the suit property in favour of the plaintiff. He had no right to alienate the rest property in favour of his son-in-law plaintiff. The substantial question of law is answered accordingly. 11. A priori, the appeal fails and is dismissed. There shall be no order as to costs.