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2018 DIGILAW 805 (ORI)

Lalita Behera v. Jayadev Behera

2018-11-19

D.DASH

body2018
JUDGMENT D.DASH, J. - The appeal under Section 96 of the Code of Civil Procedure (for short, called as “Code”), as at (A), has been filed by the plaintiff challenging the judgment and preliminary decree in Civil Suit No.449 of 2002 passed by the learned Civil Judge, Senior Division, Cuttack. The defendant nos. 1, 2, 4 and 5, being aggrieved by the said judgment and preliminary decree, have filed the appeal under (B). The learned 1st additional Civil Judge, Senior Division, Cuttack has passed the judgment on 15.01.2006 and the preliminary decree in consonance with the same has been drawn on 27.04.2016. Since both the appeals arise from the same judgment and preliminary decree as agreed upon by the learned counsel for the parties, those have been heard together so as to be governed by this common judgment. It may be stated here that respondent no.1 of the appeal under (A) and the appellant no.1 of the appeal under (B) having died during pendency of the appeals, his legal representatives being already on record have been pursuing the appeals althrough.‘ 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. The plaintiff’s suit is for a declaration that Jayadev Behera (defendant No.1) is not the son of late Brahmachari Behera and as such, has no right to succeed to the properties of said Brahmachari and interfere with the rights of plaintiff and others in respect of the suit schedule properties. The alternative prayer is for partition of the suit properties between the plaintiff and defendants in the event of a finding that the defendant No.1 is the son of Late Brahmachari. Brahmachari was a sepoy under Azad Hind Fouz and on his retirement and home coming, he had taken up the assignment as a gun man and worked as such in UCO Bank. It is stated that with the personal income, he had acquired the suit land by registered sale deed dated 14.01.1953. On purchase and being delivered with the possession of the land, pursuant to the said sale, Brahmachari Behera constructed the house over the same for his own occupation in part as also with an intention to let out rest part to others so as to generate income. On purchase and being delivered with the possession of the land, pursuant to the said sale, Brahmachari Behera constructed the house over the same for his own occupation in part as also with an intention to let out rest part to others so as to generate income. It is stated that after construction of the said house, Brahmachari Behera with family stayed in a portion and in so far other portions of the house are concerned, he inducted tenants for different parts and inducted them to occupy as tenants upon agreed terms and conditions including the matter of payment of the rent. It is further stated that the defendant no.1, who is in no way related to Brahmachari is a native of village of Mahammadpur. It is stated that some time in the year 1975, he came and requested Brahmachari to give him a room for his occupation. Accordingly Brahmachari inducted him as a tenant. It is further stated that defendant no.1 got married during his stay there and became the father of four children. Due to the expansion in the family, when the defendant No.1 was reeling with acute problem for their accommodation, as agreed upon, defendant no.1 was permitted by Brahmachari to occupy the first floor of the building as a monthly tenant. On 25.7.1989, Brahmachari died leaving behind his only daughter, who is none other than the plaintiff as his sole heir and she alone claims to have succeeded to all his properties. It is stated that the plaintiff thereafter stepping into the shoes of her father collected the rent from the tenants as her father was doing. It is alleged that defendant no.1, with some ulterior motive, stopped paying the rent and also asked the other tenants to follow his path. It is further alleged that the plaintiff was assaulted by them and they had made an attempt to drive her out by openly giving a declaration before public that this defendant no.1 is the son of late Brahmachari Behera, which of course did not succeed. It is stated that all the defendants right from defendant no.6 to defendant no.25 have joined hands with defendant no.1 with oblique motive for the obvious reason of fulfilling the terms as per hidden agreement for illegal gain. 4. The defendant nos. It is stated that all the defendants right from defendant no.6 to defendant no.25 have joined hands with defendant no.1 with oblique motive for the obvious reason of fulfilling the terms as per hidden agreement for illegal gain. 4. The defendant nos. 1, 2, 4 to 18, 20, 21 and 22 to 25, by filing their written statement, contested the suit and they have not disputed the fact that the property in question is the self-acquired property of late Brahmachari. These defendants have raised a point as to the locus of the plaintiff to file the suit with the reliefs as claimed. While asserting that Brahmachari died leaving behind defendant no.1 as his only son and heir to succeed to his properties which he has succeeded to, the plaintiff’s claimed status as the daughter of Brahmachari has been denied. It is the further case of the defendants that this defendant no.1 was born out of the wedlock of late Brahmachari and Pasori on 8.4.1952 and they had no other child. It is further pleaded that after purchase of the suit land by Brahmachari, he constructed the roofed rooms over there and began to stay with his wife Pasori and son (defendant no.1). It is stated that this defendant no.1, when was pursuing his study, was also doing some business which was giving quite handsome earning. It is further stated that in the year 1977, the defendant no.1 joined in the service as a clerk in Cuttack Gramya Bank. He asserted that from his salary as also the income from other sources, he constructed shop rooms situated under lot no.1 of Schedule-‘A’ the pucca house described in lot no.2 for their living. It is further stated that even during lifetime of Brahmachari, the defendant no.1 was looking after the entire family properties as also the matters of induction of the tenants, execution of necessary agreements with them fixation of rent and collection of the same as such. It is also the case of the defendants that Brahmachari, during his lifetime out of compassion, had engaged Bulu, an orphan to work as a field servant under him. In course of time, Brahmachari having developed affinity towards that boy, he had made necessary arrangements for his marriage and got it performed. It is also the case of the defendants that Brahmachari, during his lifetime out of compassion, had engaged Bulu, an orphan to work as a field servant under him. In course of time, Brahmachari having developed affinity towards that boy, he had made necessary arrangements for his marriage and got it performed. After the marriage, Bulu and his wife stayed and worked as labourers under that Brahmachari and this plaintiff is said to be the daughter born out of the said wedlock. It is also stated that when the plaintiff was hardly of 4 years of age, she lost her father and after that, her mother fled away with another person of her choice leaving the plaintiff alone without paying any attention for the upbringing of the plaintiff. Brahmachari in that situation came out to take care of the plaintiff. Accordingly, she was brought by Brahmachari to Cuttack and provided with the shelter and other facilities. In course of time, Brahmachari got highly pleased with the plaintiff who was also given proper education at the expense of Brahmachari. Brahmachari died on 23.7.1989 and his obsequies were performed by the defendant no.1. Thus, the prayer has been made by defendant nos. 1 to 4 to dismiss the suit holding the plaintiff to be having no such right, title and interest over the suit property left intestate by late Brahmachari Behera, which have been succeeded by defendant no.1 alone upon the death of Brahmachari. 5. The defendant no.3, filing written statement, has supported the claim of the plaintiff. It is stated that plaintiff is the daughter and the only issue of Brahmachari. He has projected a case that his father, defendant no.1, is the son of one Budhadev and after the death of Budhadev, sometime in the year 1975, he came to Cuttack with his widow mother. Brahmachari after knowing him to be hailing from village of Mahammadpur out of sympathy, allowed them to stay in his house as tenant. It is stated that during their stay as tenant, the mother of defendant no.1 use to do all the household work of Brahmachari and was helping him in every respect. With such emotional bond in prevalence, Brahmachari accepted defendant no.1 as his son and gave the education at his expense. It is stated that defendant No.1 was recognized as the adopted son of Brahmachari by the world around. With such emotional bond in prevalence, Brahmachari accepted defendant no.1 as his son and gave the education at his expense. It is stated that defendant No.1 was recognized as the adopted son of Brahmachari by the world around. Defendant no.3 further claims that Brahmachari had a great liking for him and in view of that, he has transferred the property described in lot no.1 of Schedule-‘A’ to him. It is his further case that since he was a child at the relevant time of transfer made by Brahmachari, all such connected documents were with his father who is not allowing those to come to light. For this, it is said that he is not in a position to know all the details except the fact that the suit property in lot no.1 has been mutated in his name as its absolute owner and as such, has also been assigned with the municipal holding. 6. The trial Court, on the above case projected by the parties, framed as many as eleven issues, which are the followings : ISSUES. (1) Whether the suit is maintainable under law ? (2) Whether there is any cause of action to file the suit. (3) Whether the suit is barred by law of Limitation ? (4) Whether the suit is bad for nonjoinder and misjoinder of the parties ? (5) Whether the defendant no.11 is not the son of late Brahmachari Behera and as such has no right to inherit the suit properties and the same is to be declared ? (6) Whether the plaintiff is the daughter of late Brahmachari Behera. ? (7) Whether defendant no. 1 is to be restrained from collecting the rents from D. 6 to D. 25 in respect of the suit ‘A’ schedule properties ? (8) Whether the defendants are to be restrained from making any alteration or addition of the suit properties ? (9) Whether the suit is hit by sec. 34 of the Specific Relief Act ? (10) Whether the suit properties are to be partitioned between the plaintiff and the defendant no.1 and the plaintiff is entitled to get her share as claimed ? (11) To what other reliefs the plaintiff is entitled for ?” Rightly, it has gone to take up the issue relating to the status of defendant no.1 as at no.5 for decision. (10) Whether the suit properties are to be partitioned between the plaintiff and the defendant no.1 and the plaintiff is entitled to get her share as claimed ? (11) To what other reliefs the plaintiff is entitled for ?” Rightly, it has gone to take up the issue relating to the status of defendant no.1 as at no.5 for decision. Having discussed the evidence both oral and documentary on record and upon their examination at its level keeping the rival case in mind, the finding has been in favour of the defendant no.1 that he is the son of late Brahmachari. 7. Next taking up issue no.6, which concerns with the status of the plaintiff, on analysis of evidence both oral and documentary, the trial Court has decided the same in favour of the plaintiffs by holding her to be as the daughter of Brahmachari. 8. Answer to the above two issues concerning the status of plaintiff and defendant no.12 having been recorded in their favour as the daughter and son of Brahmachari, it has been said that as both come to stand as class-I heirs of Brahmachari under the schedule of Hindu Succession Act; both of them succeeded to the intestate properties of Brahmachari. So far as issue no.10 is concerned, it is more or less consequential to the decision under issue nos.5 and 6. With the above findings on the status of plaintiff and defendant no.1, the trial Court has held that the plaintiff and defendant no.1 each are having half share over the properties in question. Answer to other issues, however, are not to be of any such significance with reference to the challenges made in both the appeals. Thus in the instant suit, the trial Court going to rule upon the claim of plaintiff that she is the sole successor of Brahmachari as his daughter and the rival claim of the defendant no.1 that he is the sole successor of Brahmachari, as his son, has recorded the answer that the plaintiff and defendant no.1 are the daughter and son of Brahmachari and as such both, being the Class-I heir as per the schedule under the Hindu Succession Act, which is iapplicable to them, succeeded to the properties in moiety. 9. In both the appeals, the respective appellant has challenged the status of respective respondent no.1. 9. In both the appeals, the respective appellant has challenged the status of respective respondent no.1. in the first one under (A), the appellant has contended that in view of the evidence on record, the finding of the trial Court holding defendant no.1 as the son of Brahmachari is unsustainable and in the second one under (B), the appellants therein have contended that the finding of the trial Court holding the plaintiff to be the daughter of Brahmachari is not based upon proper evaluation of the evidence on record and as such is liable to be knocked down. In both the appeals, the respective appellant/s claim to be the sole successor of Brahamachari and as such entitled to his intestate property in entirety. Heard learned counsel for the appellant, respondent nos.1, 2, 4 and 5 in that appeal under (A) who also represent them in that appeal under (B), and respondent no.3 at length. None appears on behalf of other respondents despite of service of notice. Also, being provide with opportunity of hearing, the same has not been availed of. The appellant and respondent no.3, through their learned counsel have also submitted the written note of argument on their behalf which have been exchanged and those have been taken on record. I have carefully read the same. 10. This Court is thus called upon to examine the sustainability of the findings of the trial Court on issue nos. 5 and 6. The plaintiff’s care is that this defendant no.1 had come to the house of Brahmachari in the year 1975 and then he was with his mother. It is stated that the purpose of his visit was to reside as a tenant. The defendant no.1 claims that she is the natural born son of Brahmachari and his wife Pasori and has all along been staying in the house since his birth, has been brought up by them and has accordingly, received the recognition all around in the family as well as in the society. It is also said that he has performed the sudhi ceremony of his late father Brahamachari. It is also said that he has performed the sudhi ceremony of his late father Brahamachari. As against the plaintiff’s claim as the daughter of Brahmachari and Parosi, the specific case of defendant no.1 is that one Bulu from his childhood days, was working as a field servant under Brahmachari and when he attained marriageable age, Brahmachari got his marriage performed with a girl and this plaintiff is the daughter born out of the said wedlock. 11. Now, let us have a survey of the evidence on the above score. P.W. 1 is the headmaster of Khan Nagar High School. It is his evidence that plaintiff is the only issue of Brahmachari being the daughter and defendant no.1 is not the son of Brahmachari. Other witnesses, P.Ws. 2, 3 and 4 have stated in the same vain. Plaintiff having come to be examined as P.W. 5, has supported her case. This is all the oral evidence from the side of the plaintiff. With these oral evidence of plaintiff, the D.W. 1, who is admittedly a tenant in respect of room situated on the suit land, has stated that defendant no.1 is the son of Brahmachari. D.W. 6, who hails from Mahammadpur, has stated that defendant no.1 is the son of Brahmachari and he was born in the year 1951-52 at Madhupatna. It is the evidence of defendant no.1 that he is the only son of Brahmachari and Pasori. The trial Court, in the above state of affair in the evidence, without finding a single witness either as the member of the family or as otherwise so related with them so as to have special means of knowledge as regards the family affairs when has found the evidence of witnesses as reliable on the score that the defendant no.1 has been residing there in the house of Brahmachari since 1975, has taken that as a circumstance to guide further which course is found to have been rightly adopted as sit falls in tune with the theory that men may lie but circumstances do not. The trial Court has, next proceeded to scrutinize the available documentary evidence let in by defendant no.1 alone. The trial Court has, next proceeded to scrutinize the available documentary evidence let in by defendant no.1 alone. Examining the counterfoil of the transfer certificate of P.M. Academy, Cuttack (Ext.G), it is seen that the father’s name of Jayadev has have been shown there as Brahmachari, further going to reveal that Brahmachari has received the original transfer certificate. The counterfoil of the transfer certificate of Municipal Board School, Cuttack (Ext.L) having been examined, it is ascertained that Brahmachari has been described as the father of defendant no.1 and that the original of the same has been received by Brahmachari. Three other documents relating to the study and training of defendant no.1 having been referred to, the trial Court has found the same state of affair as regards the father’s name of defendant in all those. Photo identity card (Ext.A), revealing the same state as father’s same of defendant no.1 has been taken note of. From the side of the plaintiff, who has sought for a declaration that defendant no.1 is not the son of Brahmachari and Pasori, no such documentary evidence has been produced to negate the claim of defendant no.1 as to his sonship. Thus when the oral evidence of both sides being evenly balanced do no lead to give a conclusive finding or even to say that the evidence of one side have a clear run or edge over the evidence of the other side, the documentary evidence, let in by the defendant no.1 have rightly been taken into consideration and given the weightage for recording the finding as regards the sonship of defendant no.1. Nothing being shown from evidence to persuade me to say that the trial Court while examining the oral evidence has kept aside any such important admissible evidence which in such event would have to conclude in favour of the case of the plaintiff as to the denial of the status of the defendant no.1, no such fault is found with the approach and determination of the trial Court. Having gone through the oral and documentary evidence, and bestowing anxious consideration upon the same, I do not find any reason to differ with decision of the trial Court on the said issue relating to sonship of defendant no.1. 12. Having gone through the oral and documentary evidence, and bestowing anxious consideration upon the same, I do not find any reason to differ with decision of the trial Court on the said issue relating to sonship of defendant no.1. 12. Next coming to the status of the plaintiff as at no.6, it is seen that the finding has been given basing upon the documentary evidence in the same line and following the same path as has been travelled in determining the status of the defendant no.1 Ext.1 is the high school certificate issued by Board of Secondary Education which has been proved by the plaintiff no.1 through the headmaster of the school. Father’s name of the plaintiff finds mention therein as Brahmachari. The certificate issued by the headmaster of Khan Nagar High School also describes Brahmachari as the father of the plaintiff. In other documents, such as the residential certificate (Ext.6), caste certificates (Ext. 8 and 9), which are public documents have been taken into consideration wherein also the father’s name of the plaintiff has been stated to be Brahmachari. The trial Court has taken note of Ext. 10, another certificate granted by N.C.T.V.E.T., Government of India, Ministry of Labour, the identity card (Ext.11) issued by the General Manager of DIC. Besides the photo identity card, the voter list is also reflecting that Brahmachari is the father of the plaintiff. The trial Court having made threadbare discussion of evidence has recorded the finding on the issue. In such state of affair in evidence, I concur with the said finding of the trial Court that the plaintiff is the daughter of Brahmachari as the same is found to be in order. Putting the seal of affirmation to the decision recorded by the trial Court on issue nos. 5 and 6 as regards the status of the plaintiff and defendant no.1 as aforestated, the consequential order of entitlement of the plaintiff and defendant no.1, who are the daughter and son of Brahmachari in equal proportion over the property left intestate by said Brahmachari, also receives the seal of confirmation. 5 and 6 as regards the status of the plaintiff and defendant no.1 as aforestated, the consequential order of entitlement of the plaintiff and defendant no.1, who are the daughter and son of Brahmachari in equal proportion over the property left intestate by said Brahmachari, also receives the seal of confirmation. With the all the aforesaid, the trial Court taking up issue No.8 so as to consider the prayer of the plaintiff to restrain the defendants from making any such alteration or addition in the suit property with the houses standing thereon, has very rightly restrained the parties from making any such alteration or addition till the amicable partition as directed under the preliminary decree or passing of the final decree, as the case may be. On issue no.7 as to the collection of rent from the tenants, i.e., defendant nos. 6 to 25, the observation as made by the trial Court being based upon the findings on issue nos. 5 and 6 and 10 are found to be just and proper. This Court also finds no such infirmity with the decision of the trial Court on issue nos. 9, 3 and 4, taken together and nos. 1,2, 3 and 11 which are formal. In the wake of aforesaid, both the appeals under (A) and (B) stand dismissed. The judgment and preliminary decree passed by the learned 1st Additional Civil Judge, Senior Division, Cuttack in Civil Suit No.449 of 2002 are hereby confirmed. In the facts and circumstances, the parties are directed to bear their respective cost of litigation throughout. Before finally parting, it is pertinent to clarify here that in view of confirmation of impugned judgment and preliminary decree, as regards the deposit made by Jayadev Behera, the defendant no.1 (since dead) as the receiver appointed by this Court, towards half of the collected rent, it is open for Lalita Behera, the plaintiff, without prejudice to her further claim on that score, to apply for release of the said sum with accrued interest to her and in that event, the Registry would do well to disburse the said deposited sum together with accrued interest, if any, in favour of Lalita Behera on proper identification. Liberty is, however, given to Lalita, the plaintiff to agitate her further claim on that score for decision in the final decree proceeding. Appeals dismissed.