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2018 DIGILAW 415 (ORI)

Bhramarabar Behera v. Narayan Panda

2018-04-16

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. Defendant no.1 is the appellant against a confirming judgment. 2. The plaintiffs-respondents 1 and 2 instituted the suit for confirmation of possession and declaration that the sale deed executed by defendant no.2 in favour of defendant no.1 is a nullity. The case of the plaintiffs is that the suit land originally belonged to Lingaraj Mohapatra. He sold the same to one Benu Behera on 11.4.1958. Benu Behera sold the said land to the plaintiffs by means of a registered sale deed dated 6.3.1965 and delivered possession. By the time the suit land was purchased by their mother, the plaintiffs were minor. The consideration amount was paid by the mother. At that time Govinda Panda was the guardian of the plaintiffs. The plaintiffs are in possession of the suit land. Defendant no.1 obtained a sale deed in respect of the suit land by giving ill advice to defendant no.2. No permission was obtained from the authorities under the Hindu Minority and Guardianship Act, 1956. When defendant no.1 threatened to dispossess the plaintiffs from the suit land, they filed the suit seeking the reliefs mentioned supra. 3. Defendant no.1 filed a written statement denying the assertions made in the plaint. According to him, the suit land had been purchased out of the joint family fund. Defendant no.2, being the Karta of the family, sold the said land to defendant no.1 for legal necessity and delivered possession to him. Since then he is in possession of the suit land. 4. Stemming on the pleadings of the parties, learned trial court framed twelve issues. Parties led evidence, oral and documentary, to substantiate their cases. The suit was decreed. Unsuccessful defendant no.1 filed T.A.No.3/47 of 1989/87 before the learned II Additional District Judge, Puri, which was eventually dismissed. 5. The Second Appeal was admitted on 7.7.1994 on the following substantial questions of law: “(1) Whether a suit for declaring the sale deed executed by guardian or minors without permission of the District Judge under Section 9(3) of the Hindu Minority and Guardianship Act shall abate as the notification brining the disputed area under the Consolidation operation has been published ? (2) Whether the courts below were justified in not holding that the suit abated in view of the notification after coming to the finding that the sale deed was void one ?” 6. (2) Whether the courts below were justified in not holding that the suit abated in view of the notification after coming to the finding that the sale deed was void one ?” 6. Heard Mr.S.N.Mishra, learned Advocate for the appellant and Mr.N.K.Sahu, learned Advocate on behalf of Mr.U.K.Samal, learned Advocate along with Mr.Bhagyadhar Swain, learned Advocate for the respondents. 7. Mr.Mishra, learned Advocate for the appellant submitted that during pendency of the suit, the area came under the purview of the consolidation operation. The suit for declaration of sale deed executed by the guardian of the minors without prior permission of the District Judge under Section 9(3) of the Hindu Minority and Guardianship Act, 1956 is void. Learned appellate court is not justified in holding that all the issues have been pressed into service except the question of abatement. 8. Per contra, Mr.Sahu, learned Advocate for the respondents submitted that no application was filed before the learned trial court along with a notification of the Government of Orissa. In the appeal, the plaintiffs have not pressed all the issues. The learned counsel for the appellant only advanced his submission with regard to abatement. Thus, no fault can be found with the learned court below. 9. Assertion of the plaintiffs is that consolidation operation in the area, where the suit schedule land falls, started. But then no notification was produced either before the learned trial court, appellate court or this Court. In absence of any notification, it cannot be held with certainty that area where the suit land falls came under the purview of consolidation. In the appeal, counsel for the appellant did not press all issues except the question of abatement. The learned appellate court held that validity of the sale deed had been challenged on the ground of legal necessity, fraud and undue influence. There is no material before the court below that the consolidation was in operation. The validity of the sale deeds executed by the defendants cannot be adjudicated upon by the consolidation authorities. The suit for declaration of title would not abate. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 10. In the result, the appeal is dismissed. There shall be no order as to costs.