The High Court
Case Details
{{ 1 }} IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.174 of 1986 (In the matter of an appeal under Section 100 of the Code of Civil Procedure) Radha Mohan Nanda -versus- Madhusudan Sarangi (Since dead) by his LRs. and others …. …. Appellant Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondents - Mr. D.P. Mohanty, Advocate None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :21.11.2023 :: Date of Judgment :21.12.2023 A.C. Behera, J. This Second Appeal has been preferred against the reversing judgment. 2. The Appellant in this Second Appeal was the defendant No.2 in the suit vide O.S. No.48/311 of 1981/1976-I and he was the respondent No.1 in the First Appeal vide T.A. No.20/98 of 1981. 3. The predecessor of the respondent Nos.1(a) to 1(d) in this Second Appeal i.e. Madhusudan Sarangi was the sole plaintiff in the suit vide O.S. No.48/311 of 1981/1976-I and he was the appellant in the First Appeal vide T.A. No.20/98 of 1981. The respondent Nos.2 to 10 in this Second Appeal were the defendant Nos.3 to 10 in the suit vide O.S. No.48/311 of 1981/1976-I and they were the respondent Nos.2 to 9 in the First Appeal vide T.A. No.20/98 of 1981. S.A. No.174 of 1986 Page 1 of 15 {{ 2 }} The predecessor of the respondent Nos.10 to 15 in this Second
Legal Reasoning
Appeal i.e. Banalata Debi alias Nilamani Debi was the defendant No.11 in the suit vide O.S. No.48/311 of 1981/1976-I and after her death, the respondent Nos.10 to 15 were substituted in her place as defendant Nos.11 (Ka) to 11 (Cha) and they were the respondent Nos.10 to 15 in the First Appeal vide T.A. No.20/98 of 1981. 4. The suit of the plaintiff {Madhusudan Sarangi, the predecessor of the respondent Nos.1(a) to 1(d) of the Second Appeal} vide O.S. No.48/311 of 1981/1976-I was a suit for declaration and permanent injunction. The properties described in schedule <Ka= of the plaint vide Khata No.39 Plot No.390 measuring an area of Ac.1.40 decimals out of Ac.2.28 decimals in Mouza Raigurupur in the district of Puri are the suit properties. 5. According to the plaintiff, Krushna Chandra Sarangi was their common ancestor. The said Krushna Chandra Sarangi died leaving behind his two sons i.e. Ananta and Gangadhar. The first son of Krushna i.e. Ananta Sarangi died leaving behind his widow Apsara Sarangi and one daughter, namely, Parbati Sarangi. Apsara Sarangi died leaving behind her only daughter Parbati Sarangi. Parbati died leaving behind her husband Basudev Nanda (defendant No.1), her son Radha Mohan Nanda (defendant No.2) and her daughter Banalata Debi @ Nilamani Debi (defendant No.11). Banalata Debi (defendant No.11) died leaving behind her five children and husband i.e. defendant Nos.11 (Ka) to 11 (Cha). S.A. No.174 of 1986 Page 2 of 15 {{ 3 }} The second son of Krushna Chandra Sarangi i.e. Gangadhar Sarangi died leaving behind his only son Madhusudan Sarangi (plaintiff). 6. In order to have better appreciation and so also for an easy understanding and as well as for an instant reference, the family pedigree of the plaintiff as stated above by the plaintiff in his plaint is depicted hereunder:- Genealogy Krushna Chandra Sarangi Late Ananta Late Gangadhara Late Apsara (wife) Late Parbati (1958) Madhusudan Sarangi (Plaintiff) Late Basudev Nanda (defendant No.1) Radha Mohan Nanda Banalata Debi (Defendant No.2) (Defendant No.11) Jagannath Misra (Husband) {defendant No.11 (Cha)} Gadadhar d-11(ka) Dibakar d-11(kha) Pravakar d-11(ga) d-11(gha) d-11(Una) Gangadhar Sabitri S.A. No.174 of 1986 Page 3 of 15 {{ 4 }} 7. According to the plaintiff, the suit Plot No.390 under Khata No.39 in Mouza Raigurupur comprises an area of Ac.4.89 decimals. It was originally belonged to Krushna Chandra Sarangi. After the death of Krushna Chandra Sarangi, all the properties of Plot No.390 devolved upon his two sons i.e. Ananta and Gangadhar. So, Ananta had half share and Gangadhar had half share over the properties covered under Plot No.390 left by Krushna Chandra Sarangi. After the death of Ananta, Apsara and Gangadhara, the properties covered under Plot No.390 i.e. Ac.4.89 decimals were partitioned on dated 30.11.1943 between the above two branches i.e. between the successors of the branch of Ananta and Gangadhara. In that partition, Apsara and Parbati were allotted Ac.2.28 decimals from the eastern side of Plot No.390 and the plaintiff was allotted Ac.2.61 decimals from the western side of that Plot No.390. Accordingly, the plaintiff-Madhusudan Sarangi was in possession of western side Ac.2.61 decimals of Plot No.390 being the owner thereof. He (plaintiff) was also possessing the eastern side properties of that Plot No.390 being a bhag tenant under defendant Nos.1 & 2 i.e. under Basudev Nanda and Radha Mohan Nanda (those are the husband and son of Parbati). Because, they (defendant Nos.1 & 2) were residing in Puri town. The defendant No.11 (Banalata Debi @ Nilamani Debi daughter of Parbati) was residing in her husband’s house at Biraharekrushnapur and both the places i.e. Puri town and Biraharekrushnapur are far away from the suit properties. 8. The further case of the plaintiff was that, there was also partition between defendant Nos.1, 2 & 11, in which, western side Ac.1.40 decimals out of Ac.2.28 decimals of suit Plot No.390 had fallen into the share of Banalata (defendant No.11), which is the subject matter of the S.A. No.174 of 1986 Page 4 of 15 {{ 5 }} suit. The plaintiff had been cultivating the aforesaid land of Banalata (defendant No.11) i.e. Ac.1.40 decimals in Plot No.390 as bhag tenant under defendant No.11 (Banalata) and for remaining Ac.0.88 decimals as bhag tenant under defendant Nos.1 & 2. For which, the defendant No.11 sold that Ac.1.40 decimals to the plaintiff for a consideration amount of Rs.1500/- through registered sale deed dated 28.05.1974 vide Ext.1. Accordingly, since the date of purchase i.e. since 28.05.1974, the plaintiff has been possessing the same exclusively being the owner thereof, but when the defendant Nos.3 to 10 created disturbances in the possession of the plaintiff on the same as per the instigation of defendant No.2, then the plaintiff was compelled to approach the Civil Court by filing the suit vide O.S. No.48/311 of 1981/1976-I against the defendants praying for declaration of his title over the suit properties and for permanent injunction against the defendants in order to restrain the defendants permanently from creating any sort of disturbances in the possession of the plaintiff over the suit properties. 9. During the pendency of the suit, when the defendant No.11 expired, for which, her successors i.e. defendant Nos.11 (Ka) to 11 (Cha) were substituted in her place. Likewise during the pendency of the suit, the defendant No.1-Basudev Nanda expired leaving behind defendant No.2 as his successor. 10. Out of all the defendants, except the defendant Nos.1, 2 and 11, other defendants were set ex parte. The defendant Nos.1 & 2 had contested the suit of the plaintiff by filing their joint written statement after taking their stands inter alia therein that, even during life time of defendant No.11 (Banalata), she was not cultivating the suit properties, but the suit properties were S.A. No.174 of 1986 Page 5 of 15 {{ 6 }} cultivating by them (defendant Nos.1 & 2). After the death of Banalata (defendant No.11), the defendant Nos.1 & 2 have become the owners over the suit properties and they are possessing the same. Because, the defendant No.11 (Banalata) had not exercised her any right of possession over the suit properties at any point of time. Further, case of the defendant Nos.1 & 2 was that, the suit properties were vested in the State due to abolition of intermediary system and after abolition of the intermediary system, the suit properties were settled in the name of the defendant No.1 under Sections 6 & 7 of the O.E.A. Act as per the application of the defendant No.1 and in which, the defendant No.11 had not raised any objection. Therefore, the suit properties have been recorded in the name of the defendant No.1 exclusively as the owner of the same. The plaintiff was not at all a bhag tenant in respect of the suit properties under the defendant No.11. Though, the plaintiff had filed an application under Section 15 of the O.L.R. Act vide O.L.R. Case No.901 of 1974 projecting him as the bhag tenant over the suit properties under the defendant No.11, to which, the defendant No.2 had contested and the said O.L.R. Case under Section 15 of the O.L.R. Act vide O.L.R. Case No.901 of 1974 of the plaintiff was dismissed. Therefore, the sale of the suit properties made by the defendant No.11 in favour of the plaintiff on dated 28.05.1974 is invalid under law. 11. The LRs. of the defendant No.11 i.e. defendant No.11 (Ka) to 11 (Uan) filed their joint written statement denying the averments made by the plaintiff in his plaint by taking their stands that, Banalata (defendant No.11) was a Pardanasin lady. So, the plaintiff has obtained the sale deed dated 28.05.1974 in respect of the suit properties from Banalata S.A. No.174 of 1986 Page 6 of 15 {{ 7 }} alias Nilamani (defendant No.11) by practicing fraud. For which, the suit of the plaintiff is liable to be dismissed. 12. Basing upon the aforesaid pleadings and matters in controversies between the parties, the Trial Court had framed altogether 9 (Nine) number of issues in the suit vide O.S. No.48/311 of 1981/1976-I and the said issues are:- Issue 1. Is the suit maintainable? 2. Is there any cause of action for the suit? 3. Is the suit barred by limitation? 4. Is the suit property valued? 5. Has the defendant No.11 been ousted from the suit land? 6. Is the sale in favour of the plaintiff genuine and for consideration? 7. To what relief, if any, is the plaintiff entitled? 8. Is the sale deed dtd.25.5.74 valid one due to absence of notice U/s 22 Hindu Succession Act? 9. Whether the plaintiff has right, title and interest over the suit property? 13. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants, he (plaintiff) examined four (4) witnesses from his side including him as P.W.3 and relied upon the documents vide Exts.1 & 2 on his behalf. But, on the contrary, the defendant No.2 examined three (3) witnesses on his behalf including him as D.W.1 and relied upon series of documents from his side vide Exts.A to F. 14. After conclusion of hearing and on perusal of the materials, documents and evidence available on Record, the Trial Court answered all the issues except issue Nos.6 & 7 against the plaintiff without answering issue Nos.3 & 4, as the said two issues were not pressed by the parties. S.A. No.174 of 1986 Page 7 of 15 {{ 8 }} 15. Basing upon the findings and observations made by the Trial Court in issue Nos.1, 2, 5, 6, 7, 8 & 9, the Trial Court dismissed the suit of the plaintiff vide O.S. No.48/311 of 1981/1976-I on contest against the defendants including the defendant No.2 without cost vide its judgment and decree assigning the reasons that, the defendant No.11 (Banalata @ Nilamani) was not ousted from the suit properties at any point of time and the sale deed vide Ext.1 dated 28.05.1974 executed by defendant No.11 (Banalata) in favour of the plaintiff in respect of the suit properties would not confer any title on him (plaintiff) due to non- partition of all the properties covered under Plot No.390 including the suit properties, for which, the plaintiff has no right, title and interest over the suit properties. 16. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide O.S. No.48/311 of 1981/1976-I passed by the Trial Court, he (plaintiff) challenged the same by preferring the First Appeal vide T.A. No.20/98 of 1981 being the appellant against the defendants by arraying them (defendants) as Respondents. 17. After hearing from both the sides, the First Appellate Court allowed the First Appeal vide T.A. No.20/98 of 1981 vide its judgment and decree dated 09.05.1986 and 17.05.1986 respectively and set aside the judgment and decree of dismissal of the suit vide O.S. No.48/311 of 1981/1976-I passed by the Trial Court. 18. On being aggrieved with the aforesaid judgment and decree dated 09.05.1986 and 17.05.1986 respectively passed in T.A. No.20/98 of 1981 by the First Appellate Court, the defendant No.2 (Radhamohan, who was the respondent No.1 in the First Appeal) challenged the same S.A. No.174 of 1986 Page 8 of 15 {{ 9 }} by preferring this Second Appeal being the Appellant against the successors of the plaintiff and also arraying the other defendants as Respondents. 19. This Appeal has been admitted on formulation of the following substantial questions of law:- (i) Whether the suit properties are the joint and undivided properties of the defendant Nos.1, 2 & 11 having 1/3rd share each and whether the defendant No.11 had transferred more than her 1/3rd share over the suit properties through the sale deed vide Ext.1 and whether the alienation made by the defendant No.11 in excess of her share from the suit properties is bad under law? (ii) Whether it was obligatory on the part of the plaintiff to file the suit in respect of the entire properties and whether it is open for the Appellant (defendant No.2) to file a regular suit for setting aside the sale deed vide Ext.1 in favour of the plaintiff? (iii) Whether the First Appellate Court has committed error in decreeing the suit of the plaintiff, when it was found that, the plaintiff has no exclusive title to the whole of the suit land? (iv) Whether the suit of the plaintiff in this nature was not maintainable under law and whether it was the duty of the plaintiff to approach the civil court by filing the suit for partition as a purchaser for an undivided share from the suit properties? 20. I have already heard from the learned counsel for the Appellant only, as none participated from the side of the Respondents in the hearing of the Second Appeal. 21. On appreciation of oral and documentary evidence as well as the pleadings of the parties, it is the similar findings of both the Courts of fact i.e. Trial Court and the First Appellate Court that, all the properties of suit Plot No.390 including the suit properties under Khata No.39 were originally belonged to Krushna Chandra Sarangi. The total area of suit Plot No.390 is Ac.4.89 decimals. The suit properties are part of the properties of Plot No.390. After the death of Krushna Chandra Sarangi, all the properties of suit Plot No.390 i.e. Ac.4.89 decimals including the suit properties devolved upon his two sons i.e. Ananta and Gangadhar. Page 9 of 15 S.A. No.174 of 1986 {{ 10 }} Accordingly, Ananta’s branch has half share and Gangadhar’s branch has half share in the properties of suit Plot No.390. All the properties of suit Plot No.390 including the suit properties have/had not been partitioned between the members of the aforesaid two branches in any manner as yet through any metes and bounds partition. As such all the properties covered under suit Plot No.390 including the suit properties are the joint and undivided properties of the members of the aforesaid two branches. The plaintiff belongs to branch of Gangadhar. The defendant Nos.1, 2 along with 11 (Ka) to 11 (Cha) belong to the branch of Ananta. The defendant No.11 was not ousted from the suit properties at any point of time. For which, the defendant No.11 had a definite share over the joint and undivided properties of suit Plot No.390 including the suit properties. 22. As per the findings of the Trial Court and the First Appellate Court, when the defendant No.11 is the co-owner with the defendant Nos.1 & 2 and the plaintiff over the entire Ac.4.89 decimals of properties of suit Plot No.390 including the suit properties, for which, as per law, the possession of one co-owner in the joint and undivided properties shall be treated as his/her possession on behalf of his/her other co-sharers. Therefore, when it is the specific/definite findings of the Trial Court as well as the First Appellate Court on appreciation of the pleadings as well as oral and documentary evidence of both the sides that, the defendant No.11 has alienated Ac.1.40 decimals of land from the suit Plot No.390 to the plaintiff on dated 28.05.1974 by executing and registering the sale deed vide Ext.1, then at this juncture, it can be held that, the defendant No.11 has alienated her joint and undivided S.A. No.174 of 1986 Page 10 of 15 {{ 11 }} interest in suit Plot No.390 in favour of the plaintiff by executing and registering the sale deed vide Ext.1. 23. As the defendant No.11 had definite share in the properties covered under the suit plot No.390 and she (defendant No.11) has alienated Ac.1.40 decimals from the suit plot No.390 in favour of the plaintiff, for which, after setting aside the judgment and decree of the dismissal of the suit passed by the Trial Court, the First Appellate Court held that, when, the defendant No.11 has alienated the properties exceeding her share in suit Plot No.390 in favour of the plaintiff through the sale deed vide Ext.1, then in order to challenge such alienation, the defendant No.2 along with his other co-sharers have the right to file a separate suit, but such alienation made by the defendant No.11 through the sale deed vide Ext.1 cannot be declared as invalid in the suit at hand and left the parties to agitate the question of validation of the sale deed vide Ext.1 or otherwise in the competent Civil Court by filing another suit. 24. It is admitted case of the parties that, the total area of the suit plot No.390 under Khata No.39 is Ac.4.89 decimals, in which, the share of Ananta’s branch is half share and the share of Gangadhar’s branch is half. Therefore, approximately Ac.2.45 decimals out of Ac.4.89 decimals is coming to the share of each branch. There are three successors in the branch of Ananta i.e. defendant Nos.1, 2 & 11. Therefore, the share of defendant No.11 comes to less than one acre. But, through the sale deed vide Ext.1, the defendant No.11 has alienated the suit properties i.e. Ac.1.40 decimals from Plot No.390 to the plaintiff, which is more than one acre. S.A. No.174 of 1986 Page 11 of 15 {{ 12 }} 25. It is the settled propositions of law that, any transfer made by one of the co-owners shall remain valid to the extent of the share of the transferor, but not beyond that. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:-
Legal Reasoning
(i) AIR 1973 (SC) 2451— Gorakh Nath Dubey Vrs. Hari Narayan Singh and others, 1974(1) CWR— 222—— Gana Nath Sahu and another Vrs. Smt. Bulli Sahu and others— Section 486 of the T.P. Act, 1882—Section 54 and 444 Transfer of property more than transferors interest in lands jointly held with others is not invalid in toto. It would be valid and operative to the extent of the transferor’s interest in the lands. Any alienation made in excess of power to transfer would be to the extent of the excess of power is void. (ii) 116 (2013) CLT 209— Page 209—Paragraph 11— Manoj Kumar Nayak & another Vrs. Guna Mohanty & others—T.P. Act, 1882—Section 54—Sale of joint property4It is well settled that transfer by one of the co- owners remains valid to the extent of the share of the transferor. 26. Here in this suit at hand, when it is established above that, the suit Plot No.390 was the joint and undivided properties of the co-owners (co- sharers) thereof i.e. plaintiff, defendant No.1, 2 & 11 and the defendant No.11 had a share on the suit Plot No.390 to the extent of less than one acre and when the defendant No.11 has alienated more than one acre i.e. Ac.1.40 decimals from Plot No.390 to the plaintiff through the sale deed dated 28.05.1974 vide Ext.1, which is in excess of her share (more than her share) therein, then, at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions of Apex Court and Hon’ble Courts, the alienation made by her (defendant No.11) through sale deed vide Ext.1 shall remain valid only to the extent of her share in suit Plot No.390 and the alienation made by her (defendant No.11) in S.A. No.174 of 1986 Page 12 of 15 {{ 13 }} excess of her share in Plot No.390 shall be invalid under law. But, the entire sale deed vide Ext.1 cannot be invalid under law. Because, that sale deed shall remain valid in respect of alienation by the defendant No.11 in favour of the plaintiff only to the extent of her share in Plot No.390, but not beyond that. 27. Now, it will be seen, whether the judgment and decree passed by the First Appellate Court in favour of the plaintiff decreeing the entire suit vide O.S. No.48/311 of 1981/1976-I in respect of all the prayers of the plaintiff i.e. prayer for declaration of title and permanent injunction against all the defendants including defendant Nos.1, 2 & 11 can be sustainable under law. 28. In the plaint, the plaintiff has prayed for declaration of his title over the suit properties i.e. over Ac.1.40 decimals of suit Plot No.390 out of Ac.2.28 decimals and also has prayed for permanent injunction against the defendants restraining them (defendants) from interfering into his peaceful possession over the suit properties. 29. When it is held that, all the properties of suit Plot No.390 i.e. Ac.4.89 decimals were the joint and undivided properties of the plaintiff, defendant Nos.1, 2 & 11 and the said properties including suit properties have not been divided between them through any metes and bounds partition and when as per law, the plaintiff and the defendant No. 2 have their definite interest/share over the suit properties, then at this juncture, it is not at all possible under law to declare the exclusive right, title and interest of the plaintiff over the suit properties i.e. over Ac.1.40 decimals out of Ac.4.89 decimals in suit Plot No.390. When undisputedly the plaintiff is a co-owner with the defendant No.2 in the suit properties and he (plaintiff) has purchased the share of S.A. No.174 of 1986 Page 13 of 15 {{ 14 }} defendant No.11 in suit Plot No.390, for which, the defendant No.2 cannot be injuncted permanently from coming into the suit properties. Therefore, the judgment and decree passed by the First Appellate Court fully setting aside the judgment and decree of the Trial Court cannot be sustainable under law. Because, the plaintiff is not the exclusive owner over the suit properties, for which, he (plaintiff) cannot be entitled to get the decree of declaration of his exclusive title over the suit properties. So, as per the discussions and observations made above, when it is held that, the plaintiff is a co-owner over the suit properties in respect of his own share as well as in respect of the share of the defendant No.11 after purchasing the share of defendant No.11 through sale deed vide Ext.1, then at this juncture, the plaintiff is entitled for the decree of declaration of joint ownership of him along with the defendant No.2 (Appellant in the Second Appeal) over the suit properties. 30. As the defendant No.11 has alienated her share from the suit Plot No.390 in favour of the plaintiff, for which, her successors i.e. defendant No.11 (Ka) to 11 (Cha) have no interest in the suit properties. Likewise, the defendant No.3 to 10 being the strangers to the suit properties, they (defendant Nos.3 to 10) have also no interest in the same. Therefore, the plaintiff is entitled for the decree of permanent injunction only against the defendant Nos.3 to 11 (Cha), but not against the defendant No.2 (Radha Mohan Nanda). 31. On the basis of the aforesaid findings and observations, the judgment and decree passed by the First Appellate Court in T.A. No.20/98 of 1981 cannot be sustainable in full, but the same is liable to be modified by interfering with the same through this Second Appeal S.A. No.174 of 1986 Page 14 of 15 {{ 15 }} filed by the Appellant (defendant No.2). So, there is some merit in the Second Appeal of Appellant. The same will succeed in part. 32.
Decision
In the result the Second Appeal filed by the Appellant is allowed in part. The judgment and decree dated 09.05.1986 and 17.05.1986 respectively passed in T.A. No.20/98 of 1981 by the First Appellate Court fully setting aside the judgment and decree of the dismissal of the suit vide O.S. No.48/311 of 1981/1976-I passed by the Trial Court is set aside in part and the same is modified as follows:- The suit be and the same vide O.S. No.48/311 of 1981/1976-I filed by the plaintiff-Madhusudan Sarangi is decreed in part on contest against the defendant Nos.1, 2 & 11 (Ka) to 11 (Cha) and ex parte against rest other defendants but without cost. The joint right, title and interest of the plaintiff along with the defendant No.2 over the suit properties are declared. The defendant Nos.3 to 11 (Cha) are injuncted permanently from interfering into the joint possession of the plaintiff and defendant No.2 over the suit properties. Orissa High Court, Cuttack. 21st December, 2023//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2023 15:49:36 S.A. No.174 of 1986 Page 15 of 15