Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 646 (ORI)

Musi Majhi @ Mushi Majhi v. Pama Majhiani

2018-07-06

A.K.RATH

body2018
JUDGMENT Dr. A.K. Rath, J. - Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title over Schedule-B land, confirmation of possession and recovery of possession in the event they are dispossessed during pendency of the suit and permanent injunction. 2. One Basen Majhi was the common ancestor of the parties. He had two sons; Bad Nuna and Galu. Bad Nuna died leaving behind his widow Pama and daughter Salega. Salega died leaving behind two daughters Basa and Pama Majhiani, plaintiff no. 2 and defendant no. 1 respectively. Fagu is the husband of Pama. Galu died leaving behind his son San Nuna. The disputed land belonged to Bad Nuna. The same was mutated in the name of Pama. The parties are Santala. They are scheduled tribes. The case of the plaintiffs was that after death of Bad Nuna, Galu was looking after the lands. After death of Galu, plaintiff no.1 looked after the lands. He was in possession of the land. Defendant no.2 taking advantage of illiteracy of Pama got the sale deed, vide Ext.C, in the name of his son Bakuli on 19.6.1963. The same was not acted upon. The possession of the land was not delivered to Bakuli or defendants 1 and 2. No consideration was paid. The sale deed was obtained by practising fraud. No title was passed to Bakuli. When a criminal case was filed by defendant no.2 in the year 1974, the plaintiffs came to know about the existence of the sale deed and the mutation on the strength of the deed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. Defendants 1 and 2 entered appearance and filed a written statement denying the assertions made in the plaint. Case of the defendants was that Galu predeceased Bad Nuna. Pama stayed with San Nuna. As San Nuna quarrelled with Pama, she left the house and stayed separately. Pama was suffering from rheumatism. She borrowed money for her maintenance. To liquidate the loan amount, she sold the suit land to Bakuli for a consideration of Rs. 1500/-. They are in possession of the same. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their case. She borrowed money for her maintenance. To liquidate the loan amount, she sold the suit land to Bakuli for a consideration of Rs. 1500/-. They are in possession of the same. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court dismissed the suit holding, inter alia, that the sale in favour of the son of defendants 1 and 2 was for a valid consideration. The transaction was not vitiated by fraud or undue influence. Unsuccessful plaintiffs filed Title Appeal No.36 of 1986 before the learned District Judge, Mayurbhanj, Baripada, which was eventually dismissed. It is apt to state here that during pendency of the first appeal, plaintiff no.1 died, whereafter his legal heirs have been substituted. 5. The second appeal was admitted on the following substantial questions of law; "1. Whether the decision of the lower appellate court is correct in view of the fact that the lower appellate court has failed to give any decision on the validity of the sale deed, Ext.C ? 2. Whether the plaintiffs have lost title by way of adverse possession of the defendants ? 3. Whether the evidence of Pama's difficulty is sufficient to validate her transfer on the ground of legal necessity in the absence of any proof that she had no other support? 4. Whether the suit is barred by limitation in view of the averment made in paragraph 5 of the plaint that the plaintiff came to know the execution of the sale deed in the year 1974, when the suit was instituted on 23.11.1981 ?" 6. Heard Mr. S.K. Samantray on behalf of Mr. Ramakanta Mohanty, learned Senior Advocate for the appellants. None appeared for the respondents. 7. Learned counsel for the appellants submitted that the learned trial court framed an issue "Whether the sale deed executed by late Pama in favour of late Bakuli son of Pama Majhiani, defendant no. 1 is a sham transaction or a genuine one?" and answered the issue in negative against the plaintiffs. But then, learned appellate court has not rendered any finding for the said issue. The judgment is vitiated. He further submitted that the courts below erred in law in dismissing the plaintiffs' suit on the ground that the plaintiffs are not in possession of the suit land. But then, learned appellate court has not rendered any finding for the said issue. The judgment is vitiated. He further submitted that the courts below erred in law in dismissing the plaintiffs' suit on the ground that the plaintiffs are not in possession of the suit land. Pama died in the year 1971. The suit was filed in the year 1981. Thus the possession of the defendants, if any, will become adverse only after the death of Pama. The suit having been brought within twelve years of Pama's death, the alleged possession of the defendants will not become adverse to the plaintiffs' title. There was no legal necessity of Pama to alienate the suit land in favour of the son of defendant no. 1. 8. Admittedly Pama executed the sale deed, vide Ext.C, in favour of Bakuli son of defendant no.1. There was no prayer to set aside the sale deed. The question does arise as to whether the suit is maintainable? The apex Court in the case of State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikote, Naduvil (dead) and others, AIR 1996 SC 906 held thus; "6. ...... Mere use of the word "void" is not daterminative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus:- "If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved." In the Judicial Review of Administrative Action, De Smith. Woolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus:- "The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. Until its validity is challenged, its legality is preserved." In the Judicial Review of Administrative Action, De Smith. Woolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus:- "The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent Jurisdiction." Similarly, Wade and Forsyth in Administrative Law, Seventh edition- 1994, have stated the law thus at pages 341-342:- " ..... every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by 5 recourse to the law. In a well-known passage Lord Raodliffe said: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects...." xxx xxx xxx" 9. In the absence of any prayer to set aside the sale deed, the court cannot render any finding on its validity. On an anatomy of the pleadings and the evidence, learned appellate court held that the sale was for the legal necessity. The plaintiffs are not in possession of the suit land. Defendants are in possession of the same. 10. The sale deed, vide Ext.C, was executed in the year 1963. The suit was instituted in the year 1981. In paragraph-5 of the plaint, it is stated that the plaintiffs came to know about the execution of the sale deed by Pama in the year 1974. Defendants are in possession of the same. 10. The sale deed, vide Ext.C, was executed in the year 1963. The suit was instituted in the year 1981. In paragraph-5 of the plaint, it is stated that the plaintiffs came to know about the execution of the sale deed by Pama in the year 1974. Under Article 59 of the Limitation Act, 1963, the period of limitation for setting aside the document is three years. The suit is barred by limitation. The substantial questions of law are answered accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.