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2018 DIGILAW 595 (ORI)

Ananda Chandra Panda v. Champa Panda

2018-06-19

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R. SARANGI, J. - The present intra-Court appeal has been filed by the appellant, who was defendant no.2 in the trial Court and appellant before the learned Single Judge, challenging the judgment dated 02.04.1999 passed in First Appeal No. 240 of 1988 dismissing the First Appeal holding that the plaintiffs’ suit has been rightly decreed, as the defendant no.2 had not perfected his title by adverse possession by the time of death of defendant no.1. 2. The factual matrix of the case in hand is that the plaintiffs filed T.S. No. 7 of 1987 in the Court of Subordinate Judge, Athagarh [now Civil Judge (Senior Division)] for declaration that the sale deeds dated 31.05.1978 (Ext.B) and 10.02.1986 (Ext.C) executed by the original defendant no.1 in favour of defendant no.2 are null and void and further no title passed thereunder, and for confirmation of possession of the plaintiff no.1 or for recovery of possession and for permanent injunction restraining defendant no.2 from coming upon the disputed land. In effect, the plaintiffs challenged the sale deeds purported to be executed by defendant no.1. 3. As per the plaint filed by the plaintiff-respondents, Sindhu Das, husband of defendant no.1 died in 1977 leaving the plaintiff-respondents as his heirs. Sindhu had ancestral property, as described in Schedule-A of the plaint, which had been gifted to his wife defendant no.1 and mutated in her name. But no possession was parted by virtue of such deed and Sindhu was in enjoyment of the property till his death. After the death of Sindhu, plaintiff-respondent no.1 was in cultivating possession through her husband and was giving the usufructs to defendant no.1. Since plaintiff-respondents claim that they are the legal heirs of Sindhu, they challenged the sale deeds executed by defendant no.1 on various grounds. 4. The defendant no.1 filed written statement admitting execution of the impugned sale deeds, but the defendant no.1 died on 18.09.1987 and her name was expunged as her legal representatives were already on record. The appellant-defendant no.2 also filed written statement denying the plaint averments. It was pleaded that the suit property was gifted to defendant no.1 in 1963 and had been mutated in her favour and contended that the sale deeds were validly executed. 5. On consideration of the pleadings, the trial Court did not accept due execution of the impugned sale deeds and decreed the suit. It was pleaded that the suit property was gifted to defendant no.1 in 1963 and had been mutated in her favour and contended that the sale deeds were validly executed. 5. On consideration of the pleadings, the trial Court did not accept due execution of the impugned sale deeds and decreed the suit. In appeal, learned Single Judge has confirmed the decree. Hence, this appeal. 6. Mr. R.K. Mohanty, learned Senior Counsel contended that the plaintiff-respondents’ suit is not maintainable in law, inasmuch as the vendor-defendant no.1, being the admitted owner and having admitted in her written statement about the valid execution of the suit sale deeds, the plaintiff-respondents could not have challenged the same during the life time of defendant no.1. It is further contended that the fact that defendant no.1 died during pendency of the suit cannot cure the invalidity on the date of institution of the suit. 7. Mr. R.C. Rath, learned counsel appearing for respondent nos.1 to 3 contended that if the appellant admits the death of defendant no.1 during pendency of the suit and there was valid sale by defendant no.1 during her life time, that cannot be questioned after her death in the present appeal. 8. Though several other grounds have been taken in this appeal, learned counsel for the appellant in course of hearing confined his argument to the extent of maintainability of the suit during life time of defendant no.1 and contended that by the time the suit was filed since defendant no.1 was alive, the same could not have been maintainable. 9. The undisputed fact being that the suit was filed on 13.04.1987 and defendant no.1 filed written statement on 21.08.1987 contending that the disputed property belonged to defendant no.1 and she had executed voluntarily the sale deeds in favour of defendant no.2. Just after filing of the written statement, the defendant no.1 expired on 18.09.1987. Since her legal heirs were already on record, her name was expunged. Defendant no.2 filed separate written statement denying the plaint averments and stated that the property had earlier been gifted to defendant no.1 by her husband in the year 1963 and had been mutated in her name and she was the owner of the property and, as such there was no undue influence on her and she executed the sale deeds on receipt of the consideration amount voluntarily. 10. 10. On perusal of the evidence available on record and examining the contention raised, the trial Court found that due execution of the documents had not been proved and the sale deeds have been obtained by exercise of undue influence. Accordingly, it was found that the sale deeds were not binding on the plaintiffs and no title had been passed thereunder in favour of defendant no.2, who was permanently restrained from entering upon the disputed land. But in appeal before the learned Single Judge it was contended by learned counsel for the appellant that in view of the finding of the trial Court that the disputed properties belonged to defendant no.1 and were her absolute properties, the alienation in favour of defendant no.2 could not have been challenged by the plaintiffs during life time of defendant no.1. It was contended that if the defendant no.1 would have been a limited owner, the question of filing a declaratory suit relating to illegality of alienation would arise during the life time of the limited owner by the reversioners, but where the property is sold by an absolute owner, no such declaratory suit can be filed during the life time of such alienor by a person on the footing that such person is likely to succeed the property of the alienor on his death. The learned Single Judge considering such contention came to hold that admittedly defendant no.1 died on 18.09.1987 during pendency of the suit and normally the plaintiffs could not have filed a declaratory suit challenging the alienation of defendant no.1 during her life time. Since defendant no.1 had died leaving plaintiffs as her legal heirs, there is no difficulty to hold that such a suit could have been filed after the death of defendant no.1. Even though technically speaking the suit was not maintainable on the date of its institution, it can be said to have become maintainable on the death of defendant no.1. Moreover, if such a point would have been raised earlier, the plaintiffs could have either withdrawn the suit immediately or filed appropriate application for amendment. Besides, the plaintiffs had also averred that the disputed property belonged to Sindhu and they had succeeded to the property along with defendant no.1. Moreover, if such a point would have been raised earlier, the plaintiffs could have either withdrawn the suit immediately or filed appropriate application for amendment. Besides, the plaintiffs had also averred that the disputed property belonged to Sindhu and they had succeeded to the property along with defendant no.1. But there was no serious attempt to prove such a case and as a matter of fact it was found by the trial Court that though some of the properties had originally belonged to Sindhu, the defendant no.1 had become owner of the same by virtue of the deed of gift in the year 1963. Even though their contention to the effect that they are heirs of Sindhu entitled to the property along with defendant no.1 had not been subsequently proved. Therefore, the learned Single Judge has come to a definite finding that it cannot be said that the suit was not maintainable in strict sense of the term at the time of its filing. Meaning thereby, the learned Single Judge has not committed any illegality or irregularity in coming to such a conclusion by assigning reasons to warrant interference by this Court in the present intra-Court appeal. 11. Accordingly, we do not find any merit in this appeal, which is hereby dismissed. No order to costs. Appeal dismissed.