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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.366 of 1982 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Ananta Charan Pani (dead) and others -versus- …. Appellants Bhikari Jena (dead) and others ..... Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. S. Mantry, Advocate. For Respondents- None CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :02.07.2024 :: Date of Judgment :23.07.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellants of this 2nd appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.150 of 1973 and they were the respondents before the First Appellate Court in the First Appeal Court vide T.A. No.27 of 1976. The respondents of this 2nd appeal were the defendant Nos.1 to 4 before the Trial Court in the suit vide T.S. No.150 of 1973 and they were Page 1 of 20 {{ 2 }} the appellants before the First Appellate Court in the First Appeal vide T.A. No.27 of 1976. 3. The suit of the plaintiffs (appellants in this 2nd appeal) before the Trial Court against the defendants (respondents in this 2nd appeal) vide T.S. No.150 of 1973 was a suit for declaration, confirmation of possession, permanent injunction in alternative recovery of possession. 4.
Legal Reasoning
The case of the plaintiffs as per their pleadings in the suit before the Trial Court vide T.S. No.150 of 1973 was that, the suit properties along with other properties were originally belonged to Mandardhar Patra and Chandramani Patra, both are sons of late Dama Patra. Accordingly, C.S. R.o.R. of the suit properties was prepared in the names of Mandardhar Patra and Chandramani Patra. Chandramani Patra died leaving behind his widow Rajani. After the death of Chandramani Patra his half share in the suit properties devolved upon his widow wife Rajani. As Rajani sold her half share in the suit properties on dated 14.01.1950 to Mandardhar Patra, for which, Mandardhar Patra became the owner of the entire suit properties. After selling her half share to Mandardhar Patra, Rajani went away to her father’s house and stayed there. Page 2 of 20 {{ 3 }} While Mandardhar Patra was the exclusive owner over the entire suit properties, Rajani created disturbances in his possession, for which, Mandardhar Patra sold the suit properties to the defendant No.5 Maheswar Jena by executing and registering the sale deed on dated 29.07.1955 vide Ext.C. The defendant No.5 Maheswar Jena was the natural born son of defendant No.1 and brother of defendant Nos.2 to 4. When, in the year 1962, the health condition of Mandardhar Patra deteriorated and did not able to look after his own affairs, then he (Mandardhar Patra) adopted defendant No.5 (son of the defendant No.1) on 10.03.1963 i.e. on the day of Dolo Purnima as per Hindu Sastric rites and customs, as his adopted son in order to look after him on being given by his natural parents i.e. defendant No.1 and his wife and since the date of adoption i.e. since 10.03.1963, the defendant No.5 stayed in the house of Mandardhar Patra as his son and looked after all the affairs of Mandardhar Patra and after the death of Mandardhar Patra, he (defendant No.5) inherited/succeeded all the properties left by Mandardhar Patra. Thereafter, the defendant No.5 sold the suit properties, which was purchased by him from Mandardhar Patra through R.S.D. dated 29.07.1955 vide Ext.C to the plaintiffs by executing and registering the sale deed dated 12.03.1973 vide Ext.1 and delivered the possession Page 3 of 20 {{ 4 }} thereof and accordingly, the plaintiffs became the owners over the suit properties by purchasing the same from the defendant No.5 on dated 12.03.1973 through sale deed vide Ext.1. But, when the plaintiffs were the owners and in possession over the suit properties, the defendant Nos.1 to 4 being the natural father and natural brothers of their vendor i.e. defendant No.5 tried to grab the suit properties from the plaintiffs and created disturbances in their possession in the suit properties, then without getting any way, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.150 of 1973 against the defendant No.1 to 4 arraying their vendor i.e. defendant No.5 as performa defendant praying for declaration of their title over the suit properties and to confirm their possession on the same and to injunct the defendants permanently by restraining them (defendants) from interfering into his possession over the suit properties with an alternative relief that, if they (plaintiffs) are found dispossessed from the suit properties by the defendant Nos.1 to 4 during the pendency of the suit, to pass a decree for recovery of possession. 5. Having been noticed from the Trial Court in the suit vide T.S. No.150 of 1973 filed by the plaintiffs, the defendant Nos.1 to 3 contested the same by filing their joint written statement denying the allegations Page 4 of 20 {{ 5 }} alleged against them by the plaintiffs in their plaint taking their stands therein that, the suit properties are within the consolidation area of Salipur P.S. and there is a notification under Section 3(1) of Orissa Act 21 of 1973 for the same, for which, the Civil Court has no jurisdiction to entertain the suit. Their specific case was that, the defendant No.5 has not been adopted by Mandardhar Patra, but he is the son of the defendant No.1 and brother of defendant Nos.2 to 4. The wife of Chandramani Patra i.e. Rajani had validly sold her half share (eight annas interest in the suit properties) to Mandardhar Patra by executing and registering the sale deed dated 14.01.1950 after receiving due consideration amount thereof and accordingly, Mandardhar Patra was the full owner over the suit properties. The defendant No.5 has never possessed and enjoyed the suit properties with Mandardhar Patra. The sale deed dated 29.07.1955 vide Ext.C was executed by Mandardhar Patra in the name of the defendant No.5 (son of the defendant No.1) in respect of the suit properties, while the defendant No.5 was a minor is a valid and real transaction. In fact, the said sell was made by Mandardhar Patra in favour of all the family members of the defendant No.1 and after executing and registering the sale deed dated 29.07.1955 vide Ext.C in the name of the defendant No.5, Mandardhar Patra lost his all interest and possession in the suit properties. Page 5 of 20 {{ 6 }} On the strength of purchase of the suit properties through the sale deed dated 29.07.1955 vide Ext.C by all the family members of the defendants in the name of defendant No.5, the family members of the defendant No.1 became the owners and in possession over the suit properties and they are continuing their possession on the same by paying rent to the Government. The consideration amount of the sale deed vide Ext.C was paid by the defendant No.1 out of the joint family funds as karta of such family, though that sale deed vide Ext.C was executed in the name of defendant No.5 as the vendee thereof. Mandardhar Patra had not at all adopted defendant No.5 either on 10.03.1963 or in any other date as stated in the plaint of the plaintiffs and no adoption ceremony was performed on any Dola Purnima day. The defendant No.1 and his wife had never given defendant No.5 in adoption to Mandardhar Patra. On dated 10.03.1963, the age of the defendant No.5 was more than 15 years, for which, he (defendant No.5) was not capable under law to be adopted as the adopted son of Mandardhar Patra. As such, defendant No.5 has never lived with Mandardhar Patra at any point of time in his house. Therefore, the question of inheriting the properties left by Mandardhar Patra by the defendant No.5 does not arise. The defendant No.5 had never any separate residential house and he was not possessing the suit Page 6 of 20 {{ 7 }} properties separately. The defendant No.5 was all through remaining joint with the defendant Nos.1 to 4. The defendant No.5 had never incurred any loan, for which, there was no necessity for him to sell the suit properties to the plaintiffs for repayment of any loan. The marriage of the defendant No.5 was performed by defendant No.1 out of the joint family funds. The sale deed dated 12.03.1973 vide Ext.1 said to have been executed by defendant No.5 in favour of the plaintiffs is an invalid and inoperative document without consideration and without delivery of possession of the suit properties. The plaintiffs have never possessed the suit properties at any point of time. As such, they (defendants) are possessing the suit properties peacefully since the date of purchase from Mandardhar Patra through R.S.D. dated 29.07.1955 vide Ext.C and accordingly, they (defendants) have already acquired their valid title over the suit properties through their continuous possession to the same for more than 12 years as owners under the aforesaid sale deed dated 29.07.1955 vide Ext.C as well as through adverse possession to the knowledge of all concerned. As, the suit properties were purchased from Mandardhar Patra through R.S.D. dated 29.07.1955 vide Ext.C on behalf of their joint family in the name of the defendant No.5, for which, the R.o.R. of the last settlement in respect of the suit properties was Page 7 of 20 {{ 8 }} published in the name of the defendant No.5 on behalf of their all family members. He (defendant No.1) being the Karta of the family, he (defendant No.1) is dealing with the suit properties to the knowledge of others including Government. As the plaintiffs have no interest in the suit properties, for which, the suit of the plaintiffs is liable to be dismissed against them (defendant Nos.1 to 4). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 12 (twelve) numbers of issues were framed by the Trial Court in the suit vide T.S. No.150 of 1973 and the said issues are:- I S S U E S Is the suit as laid maintainable? Is defendant No.5 the adopted son of Mandardhar Patra? (i) (ii) Have the plaintiffs any cause of action for this suit? (iii) Is the suit barred by limitation? (iv) Has this Court jurisdiction to entertain this suit in view of the operation of the Consolidation Act (Orissa Act 21 of 1973) in the area including the disputed land? (v) (vi) Is defendant No.4 a minor, if so is the suit bad in the absence of proper representation of defendant No.4? (vii) Is the sale deed dated 12.03.1973 executed by defendant No.5 in favour of the plaintiffs valid. Have the plaintiffs acquired any interest in the disputed property on the strength of such sale deed? (viii) Is the disputed property the joint family property of defendants? If so could defendant No.5 transfer the same in favour of the plaintiffs? (ix) Is the sale deed dated 29.07.1955 valid and conveyed good title in favour of defendants’ family? (x) Have the defendants acquired valid title to the disputed property by adverse possession? (xi) Have the plaintiffs any right, title, interest in or possession over the disputed property? (xii) To what reliefs, if any, are the plaintiffs entitled? 7. In order to substantiate aforesaid reliefs sought for by the plaintiffs against the defendants before the Trial Court in the suit vide T.S. No.150 of 1973, they (plaintiffs) examined altogether 11 (eleven) numbers of Page 8 of 20 {{ 9 }} witnesses from their side including plaintiff No.1 as P.W.7 and relied upon the documents vide Exts.1 to 3 on their behalf. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the contesting defendant Nos.1 to 3 examined 6 (six) witnesses from their side including defendant Nos.1 to 3 as D.Ws.5, 6 & 2 and exhibited series of documents on their behalf vide Exts.A to R. 8. After the conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered issue Nos.1, 2, 3, 7, 8, 9, 10 & 11 in favour of the plaintiffs and against the defendants and answered issue No.5 in full and issue No.4 in part against the plaintiffs, as issue No.6 was not pressed and basing upon the findings and observations made by the Trial Court in all the issues, the Trial Court decreed the suit of the plaintiffs in part on contest and against the defendant Nos.1 to 4 without cost and declared that, the plaintiffs have right, title and interest over the lot No.1 suit properties and confirmed their possession on the same and restrained the defendants permanently from interfering into the possession of the plaintiffs over the lot No.1 suit properties of the Schedule giving the observations that, the defendant No.5 is not the adopted son of Mandardhar Patra and the lot No.2 suit properties are excluded from adjudication due to abatement of Page 9 of 20 {{ 10 }} the suit in respect of the said lot No.2 for the continuance of consolidation operation in respect of the same as per its judgment and decree dated 15.01.1976 and 22.01.1976 respectively. 9. On being dissatisfied with the aforesaid part judgment and decree passed in T.S. No.150 of 1973 on dated 15.01.1976 and 22.01.1976 respectively by the Trial Court in favour of the plaintiffs and against the defendants, the defendant Nos.1 to 4 challenged the same by preferring the First Appeal vide T.A. No.27 of 1976 being the appellants against the plaintiffs arraying them (plaintiffs) as respondents. 10. After hearing from both the sides, the First Appellate Court allowed the First Appeal vide T.A. No.27 of 1976 of the defendant Nos.1 to 4 and set aside to the part judgment and decree passed by the Trial Court in the suit vide T.S. No.150 of 1976 and dismissed the entire suit vide T.S. No.150 of 1976 of the plaintiffs as per its judgment and decree dated 28.08.1982 and 02.09.1982 respectively assigning the reasons that, the plaintiffs have failed to prove that, the defendant No.5 had purchased the suit properties through R.S.D. dated 29.07.1955 vide Ext.C out of his own fund with observations that, whether the defendant No.1 had purchased the suit properties under Ext.C (R.S.D. dated 29.07.1955) out of his own fund or joint family fund is absolutely immaterial for the Page 10 of 20 {{ 11 }} purpose of the suit, because the said matter is confined between the defendant No.1 and defendant No.5, to which, the plaintiffs are in no way concerned and no valid title has ever been passed to the plaintiffs through the sale deed dated 12.03.1973 vide Ext.1, for which, question of possession of the plaintiffs over the suit properties is immaterial, as the plaintiffs have not based their claim through possession. So, the judgment and decree passed by the Trial Court is not sustainable under law. Therefore, plaintiffs are not entitled for any relief in the suit as prayed for by them. 11. On being aggrieved with the aforesaid judgment and decree dated 28.08.1982 and 02.09.1982 respectively passed by the 1st appellate Court in T.A. No.27 of 1976 in dismissing their suit vide T.S. No.150 of 1973 after setting aside the part judgment and decree passed by the Trial Court in their favour, they (plaintiffs) challenged the same by preferring this 2nd appeal being the appellants against the defendant Nos.1 to 4 arraying them (defendant Nos.1 to 4) as respondents. 12. As, during the pendency of this 2nd appeal, both the appellants as well as respondent Nos.1 & 3 expired, for which, their respective LRs have been substituted in their respective places. Page 11 of 20 {{ 12 }} 13. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.- (i) Whether the learned lower appellate court has erred in law by holding that the acquisition of property under Ext.C in the name of defendant No.5 is out of his own fund or from the joint family nucleus is absolutely immaterial? (ii) Whether the learned lower appellate court has clearly gone wrong by not appreciating the legal position that defendant No.5 had got exclusive title, as he had acquired the property from his own income and, therefore, having the independent status he was legally entitled to transfer his title and as the plaintiffs have purchased the suit property from him, their title was legal and acceptable in the eye of law? (iii) Whether the learned lower appellate court has erred in law by opining that the acquisition of title under Ext.C for the purpose of conferring the title jointly on all the defendants or exclusively on defendant No.5 is a question to be confined as between defendant No.1 and defendant No.5, in which, the plaintiffs are in no way concerned? 14. I have already heard from the learned counsel for the appellants (plaintiffs) only, as none appeared from the side of the respondents (defendants) for participating in the hearing of the 2nd appeal. 15. When the above three formulated substantial questions of law are interlinked with the findings and observations made by the Trial Court and the First Appellate Court in their respective judgment and decree basing upon the pleading and evidence of the parties, then all the above Page 12 of 20 {{ 13 }} three formulated substantial questions of law are taken up together analogously for their discussions hereunder. 16. As per the pleadings of the plaintiffs, they (plaintiffs) have claimed their title and possession over the properties described in lot No.1 of the Schedule basing upon the sale deed dated 12.03.1973 vide Ext.1 executed by the defendant No.5 in their favour stating that, the defendant No.5 had purchased the said properties from Mandardhar Patra through sale deed dated 29.07.1955 vide Ext.C. The defendant No.5 has not disputed/denied to the execution and registration of the sale deed dated 12.03.1973 vide Ext.1 in respect of the lot No.1 suit properties in favour of the plaintiffs for consideration amount indicated therein as well as giving delivery of the possession of the said sold properties to them (plaintiffs) by him (defendant No.5). The defendant Nos.1 to 3 have seriously challenged the title and possession of the plaintiffs over the suit properties by taking their stands in their pleadings that, though the sale deed dated 29.07.1955 vide Ext.C was executed in the name of the defendant No.5 by Mandardhar Patra, but the same was purchased Benami out of their joint family income. For which, the defendant No.5 is not the exclusive owner over the suit properties. Therefore, the defendant No.5 had no right to alienate the suit Page 13 of 20 {{ 14 }} properties through the sale dated 12.03.1973 vide Ext.1 to the plaintiffs. So, the sale deed dated 12.03.1973 vide Ext.1, which was executed by the defendant No.5 in respect of lot No.1 suit properties in favour of the plaintiffs is invalid. Though, the Trial Court had held that, the defendant No.5 was the exclusive owner over the suit properties by purchasing the same on dated 29.07.1955 through the sale deed vide Ext.C from Mandardhar Patra, but the First Appellate Court set aside the same assigning the reasons that, the question i.e. whether the defendant No.5 had purchased the properties under Ext.C out of his own fund or joint family fund of the defendants is absolutely immaterial for the purpose of the suit, as the said matter is confined between the defendant No.1 and defendant No.5, in which, the plaintiffs are in no way concerned. The above findings and observations of the First Appellate Court i.e. the plaintiffs are in no way concerned i.e. whether the defendant No.5 had purchased the suit properties of lot No.1 under Ext.C out of his own fund or joint family fund of the defendants is absolutely immaterial for the purpose of the suit cannot be sustainable under law. Because, the plaintiffs have based their title and possession over the suit properties Page 14 of 20 {{ 15 }} through the sale deed dated 29.07.1955 vide Ext.C executed by Mandardhar Patra in the name of the defendant No.5. Therefore, the said findings and observations of the First Appellate Court i.e. the plaintiffs are in no way concerned i.e. whether their vendor (defendant No.5) had purchased the lot No.1 suit properties through sale deed dated 29.07.1955 out of his own fund or joint family fund of the defendants is immaterial, as the said matter is confined between defendant Nos.1 and 5 and the plaintiffs have nothing to say on the same are held as unsustainable under law. 17. When, undisputedly the sale deed dated 29.07.1955 vide Ext.C has been executed by its undisputed owner i.e. Mandardhar Patra in the name of the defendant No.5, then at this juncture, it will be seen from the materials on record that, whether the nature of transaction i.e. the sale deed dated 29.07.1955 vide Ext.C executed by Mandardhar Patra in favour of the defendant No.5 was a Benami or not? Two kinds of Benami transactions in India are recognized. First one is, where a person buys properties through his own money, but in the name of another person without any intention to give benefit to such other person (named as vendee), that transaction is called as Benami. In that case, the transferee holds properties for the benefit of Page 15 of 20 {{ 16 }} person, who has contributed the purchase money and he (the person who made the contribution of the purchase money) is real owner. The second type of Benami transaction is that, where a person, who is the owner of property, executes conveyance in favour of another without any intention of transferring title of the property there under, in that case, the transferor continues as to be the real owner. 18. There is presumption in law that, person who purchases property is the owner of the same and such presumption can be displaced/rebutted only by pleading and successfully proving that, the person, whose name appears in the document (sale deed) is not a real owner, but only Benami and in that case, heavy burden lies on person, who pleads that, the recorded owner as well as the vendee in the sale deed is a mere named lender. 19. While determining a transaction is Benami or not, the Court has to look into the following aspects:- (i) the source, from which, the purchase money was given. (ii) The possession of the property. (iii) The position of the parties and their relationship (iv) The circumstances of the parties. (v) The motive for resorting to the Benami transaction. Page 16 of 20 {{ 17 }} (vi) Custody and production of title deeds. (vii) Previous and subsequent conduct of the parties. 20. It is the settled propositions of law that, burden lies on the person, who alleges the transaction as Benami. The aspects i.e. the essentials indicated above can be taken as a guide for determination that, whether the nature of transaction was Benami or not? There is no documentary evidence on behalf of the defendant Nos.1 to 3 to prove about the payment of the consideration money of the sale deed vide Ext.C by the defendants. There is also no pleadings and evidence on behalf of the defendant Nos.1 to 3 about the source, from which, the purchase money was given as well as the causes, reasons, circumstances and the motive for resorting to the alleged Benami transaction for purchasing the suit properties in the name of the defendant No.5 through Ext.C instead of all the defendants. So, the pleadings and evidence of the defendant Nos.1 to 3 are not fulfilling the aforesaid three essentials to establish the transaction through Ext.C in the name of the defendant No.5 as Benami transaction. Rather, the undisputed/unchallenged R.o.R. of the lot No.1 suit properties in the name of the defendant No.5 alone on the basis of the sale Page 17 of 20 {{ 18 }} deed vide Ext.C and thereafter in the name of the plaintiffs through mutation on the basis of the sale deed dated 12.03.1973 vide Ext.1 is ultimately establishing that, on the basis of the sale deed dated 29.07.1955 vide Ext.C, the defendant No.5 had become the exclusive owner over the lot No.1 suit properties. So, due to the nonfulfillment of the above three essentials for terming the sale deed dated 29.07.1955 vide Ext.C in favour of the defendant No.5 as Benami, it is held that, the presumption provided under law in favour of the plaintiffs regarding their ownership and possession over the suit properties has not been displaced/rebutted properly by the contesting defendants. Therefore, for non-discharging the above heavy burden, which was lying upon the defendant Nos.1 to 4, the presumption provided under law in favour of the purchasers/plaintiffs has become acceptable under law. So, on the basis of the above unrebutted presumption, it is held that, the sale deed executed by Mandardhar Patra on dated 29.07.1955 vide Ext.C in favour of the defendant No.5 in respect of lot No.1 suit properties was not a Benami transaction, but that was a sale deed in favour of the defendant No.5 and on the strength of that sale deed vide Ext.C, the defendant No.5 was the exclusive owner and in possession Page 18 of 20 {{ 19 }} over the said lot No.1 suit properties and while he (defendant No.5) was the exclusive owner and in possession over the lot No.1 suit properties on the basis of the sale deed vide Ext.C and as well as the R.o.R. in his name, he (defendant No.5) had sold the same to the plaintiffs by executing and registering the sale deed dated 12.03.1973 vide Ext.1 and had delivered the possession thereof to the plaintiffs. So, the plaintiffs are the owners of lot No.1 suit properties and they are in possession over the same, in which, the defendants have no interest. Therefore, the findings and observations made by the First Appellate Court against the plaintiffs for setting aside the judgment and decree of the Trial Court in respect of the lot No.1 properties cannot be sustainable under law. For which, there is justification under law for making interference with the said judgment and decree passed by the First Appellate Court through this 2nd appeal filed by the appellants (plaintiffs). As such, there is merit in the 2nd appeal of the appellants (plaintiffs). The same must succeed. 21. In result, the 2nd appeal filed by the appellants (plaintiffs) is allowed on merit, but without cost. Page 19 of 20 {{ 20 }} The judgment and decree dated 28.08.1982 and 02.09.1982 respectively passed by the First Appellate Court in T.A. No.27 of 1976 is set aside. The judgment and decree dated 15.01.1976 and 22.01.1976 respectively passed by the Trial Court in T.S. No.150 of 1973 is confirmed. (A.C. Behera), Judge. Orissa High Court, Cuttack. 23rd July 2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Aug-2024 13:41:19 Page 20 of 20