The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.134 of 1992 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Suratha Bala Das another .... (dead) and Appellants -versus- Narendra Kumar Das and others .... Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. A. K. Mohanty, Advocate. For Respondents - Mr. S.K. Sahoo, Advocate. [for respondent Nos.11(a) to 11(f)] Mr. B. K. Padhi, Advocate. On behalf of Mr. P. Kar, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :24.11.2025 :: Date of Judgment :23.12.2025 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. Page 1 of 15 2. The appellants in this 2nd appeal are the successors of the defendant No.1 in the suit vide O.S. No.23 of 1983-I and they were the appellants before the 1st Appellate Court in the 1st Appeal vide S.J. Appeal No.40 of 1986-I. The respondent Nos.1 to 5 in this 2nd appeal were the plaintiff Nos.1 to 3, 5 & 6 along with their widow mother Pata Dei as plaintiff
Facts
No.4 before the Trial Court in the suit vide O.S. No.23 of 1983-I. The respondent Nos.7 to 10 are the successors of the defendant No.2 before the Trial Court in the suit vide O.S. No.23 of 1983-I and they were respondent Nos.7(b) to 7(e) in the 1st appeal vide S.J. Appeal No.40 of 1986-I. The respondent No.6 in this 2nd appeal was not made party in the suit vide O.S. No.23 of 1983-I, but, he was the respondent No.7(a) before the 1st Appellate Court in S.J. Appeal No.40 of 1986-I. The respondent No.11 in this 2nd appeal was the defendant No.3 before the Trial Court in the suit vide O.S. No.23 of 1983-I and appellant No.8 before the 1st Appellate Court in the 1st Appeal vide S.J. Appeal No.40 of 1986-I. 3. The suit of the plaintiffs (respondent Nos.1 to 6 in this 2nd appeal) before the Trial Court vide O.S. No.23 of 1983-I was a suit for partition. Page 2 of 15 4. The plaintiffs have depicted their genealogy in Schedule ‘Ka’ of their plaint. The said depicted family pedigree of the plaintiffs and defendants is as follows:- Genealogy Chaturbhuja Rahasbihari Baidyanath Kunja Purusottam Mahendra =Pata Dei (P.4) Gajendra Lata (d.3) (adopted son of Narayan Das) Sachindra (d.1) Gurubari (wife) Dasantamanjari(P.5) Kamala(P.6) Narendra(P.1) Upendra(P.2)Surendra(P.3) 5. As per the aforesaid genealogy, Chaturbhuja was their common ancestor. Chaturbhuja died leaving behind is four sons i.e. Rahasbihari, Baidyanath, Kunja and Purusottam. Out of four sons of Chaturbhuja, the branch of his last son i.e. the branch of Purusottam has extinct, because he and his wife died issueless. Due to extinct of the branch of Purusottam, his interest in the joint and undivided suit properties devolved upon his three brothers i.e. Rahasbihari, Baidyanath and Kunja equally. Rahasbihari died leaving behind his one son i.e. Mahendra. Mahendra died leaving behind the plaintiffs as his successors. Because, the plaintiffs are the widow wife and children of Mahendra. Page 3 of 15 Baidyanath died leaving behind his two children i.e. Gajendra and Lata. Lata is the defendant No.3. Gajendra was adopted by one Narayan Das. For which, Gajendra has no share in the suit properties. Defendant No.2 is the son of Gajendra. So, defendant No.2 has also no interest in the suit properties, because after adoption of Gajendra to an another family, Lata (defendant No.3) is the only successor of Baidyanath. The defendant No.1 is the only son as well as sole successor of Kunja. Kunja was the 3rd son of Chaturbhuja. As per plaint story, although, three branches i.e. Rahasbihari branch, Baidyanath branch and Kunja Branch were possessing the joint and undivided ‘Kha’ Schedule suit properties distributing between them more or less amicably staying in separate mess, but there was no metes and bounds partition of the same between them. In the year 1981, the defendant No.3 (Lata, who is the sole successor of Baidyanath) sold a portion of her share in the suit properties to the sons of Mahendra i.e. plaintiff Nos.1 to 3 by executing and registering a sale deed. The defendant No.3 (Lata) had also sold some other properties from the joint and undivided suit properties to the son of her adopted brother Gajendra i.e. Dibakar Das (defendant No.2). Page 4 of 15 When, there was inconvenience between the parties for possessing the suit properties, the plaintiffs requested to the defendant No.1 for metes and bounds partition of the suit properties, to which, the defendant No.1 did not agree. For which, without getting any way, the plaintiffs approached the Civil Court by filing the suit vide O.S. No.23 of 1983-I praying for partition of their legitimate share from the suit properties. 6. Having been noticed from the Trial Court in the suit vide O.S. No.23 of 1983-I, the defendant Nos.1 to 3 filed their written statements. While, the defendant Nos.2 & 3 filed their written statement jointly, the defendant No.1 filed his written statement independently. In the written statement of the defendant Nos.2 & 3, they supported the case of the plaintiffs for partition of the suit properties admitting the genealogy given by the plaintiffs in their plaint. Whereas, the defendant No.1 challenged the suit of the plaintiffs by filing his written statement taking his stands inter alia therein that, the defendant No.3 (Lata) is not the daughter of Baidyanath. According to him, Lata (defendant No.3) has created some fake sale deeds showing the selling of some of the suit properties to the plaintiffs and defendant No.2 in the year 1981. The said sale deeds are not genuine, but collusive deeds. The defendant No.3 (Lata) had no interest in the suit properties. Because, Lata is not the daughter of Baidyanath. For which, the question of Page 5 of 15 alienation of the suit properties by her (defendant No.3) either in favour of the plaintiffs or in favour of the defendant No.2 had not arisen. As such, the defendant No.1 seriously disputed to the genealogy given by the plaintiffs in their plaint and pleaded that, Lata is not entitled to get any share in the suit properties. The plaintiffs and he (defendant No.1) are entitled for half share each. Because, 1/3rd share of Baidyanath in the suit properties has devolved upon two branches i.e. in the branch of Rahasbihari (plaintiffs’ branch) and in the branch of Kunja (defendant No.1’s branch). 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 (six) numbers of issues were framed by the learned Trial Court in the suit vide O.S. No.23 of 1983-I and the said issues are:- ISSUES (i) (ii) (iii) (iv) (v) (vi) Has the plaintiff any cause of action to bring this suit? Is the suit maintainable in its present form? Are the plaintiffs entitled to partition as prayed for? Is the registered sale deed dated 03.11.1981 in favour of plaintiffs genuine? Is Latamani in physical possession of the property left by her father, Baidyanath? What relief, if any, the plaintiffs are entitled to? 8. In order to substantiate the aforesaid relief i.e. partition sought for by the plaintiffs against the defendants in the suit vide O.S. No.23 of 1983-I, three witnesses were examined on their behalf including the Page 6 of 15 plaintiff No.1 as P.W.1 and relied upon series of documents on their behalf vide Exts.1 to 7/a. On the contrary, in order to nullify/defeat the suit of the plaintiffs, four witnesses were examined on behalf of the contesting defendant No.1 as D.Ws.1 to 4 without examining him as a witness and exhibited four documents on his behalf vide Exts.A to B-1. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned Trial Court answered all the issues in favour of the plaintiffs and against the defendant No.1 and basing upon the findings and observations made by the learned Trial Court as per its judgment and decree dated 28.04.1986 and 09.05.1986 respectively, the learned Trial Court decreed the suit vide O.S. No.23 of 1983-I of the plaintiffs preliminarily for partition on contest and held that, the defendant No.1 will get 1/3rd share and the plaintiffs will get 1/3rd share jointly in the suit properties and further held that, the plaintiff Nos.1 to 3 will get the land those had purchased by them from defendant No.3 (Lata) as per Ext.3 in their share and the defendant No.2 will get the properties, to which, he had purchased as per Ext.B from Lata (defendant No.3) assigning the reasons that, “it is established that, Lata is the daughter of Baidyanath and she is her sole successor and she had 1/3rd share in the suit Page 7 of 15 properties. The alienation made by her through the sale deeds in the year 1981 as per Exts.A & B in favour of the plaintiffs and defendant No.2 are valid, for which, at the time of allotment of the suit properties, the extent of the properties sold by the defendant No.3 (Lata) shall be allotted in favour of her purchasers i.e. plaintiffs and defendant No.2.” 10. On being dissatisfied with the aforesaid judgment and decree dated 28.04.1986 and 09.05.1986 respectively passed by the learned Trial Court in O.S. No.23 of 1983-I, the defendant No.1 challenged the same preferring the 1st Appeal vide S.J. Appeal No.40 of 1986-I being the appellants against the plaintiffs and defendant Nos.2 & 3 arraying them as respondents. 11. When during the pendency of the 1st Appeal vide S.J. Appeal No.40 of 1986-I, the appellant (defendant No.1) expired, then in his place, his widow wife and son were substituted. 12. After hearing from both the sides, the learned 1st Appellate Court dismissed that 1st Appeal vide S.J. Appeal No.40 of 1986-I of the defendant No.1 on contest as per its judgment and decree dated 18.12.1991 and 06.01.1992 respectively concurring/confirming the findings and observations made by the learned Trial Court in the judgment and decree of O.S. No.23 of 1983-I. Page 8 of 15 13. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st Appeal vide S.J. Appeal No.40 of 1986-I of the appellants (successors of the defendant No.1), they (successors of defendant No.1) challenged the same preferring this 2nd appeal being the appellants against the plaintiffs and defendant Nos.2 & 3 arraying them as respondents. 14. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether the plaintiffs have satisfactorily proved the daughtership of Lata (defendant No.3) as required under Section 50 of the Evidence Act? (ii) Whether in the absence of specific issue regarding the daughtership of Lata (defendant No.3), the defendant No.1 has been prejudiced and whether the impugned judgment and decree are liable to be set aside? 15. I have already heard from the learned counsel for the appellants
Legal Reasoning
proceedings in the suit. It is well settled that, omission to frame an issue of fact is not fatal for the suit, when the parties went to trial knowing fully well their rival cases and led evidence not only in support of his case, but also to challenge the case of the adversary. (v) In a case between Nedunuri Kameswaramma Vrs. Sampati Subba Rao reported in AIR 1963 (SC) 884, in a case between Kunju Kesavan Vrs. M.M. Philip and Ors. reported in AIR 1964 (SC) 164 that, Since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions, but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. (vi) In a case between Sayeda Akhtar Vrs. Abdul Ahad reported in AIR 2003 (SC) 2985 that, No issue was framed by the lower Court yet it is clear on the basis of relevant pleadings and evidence produced that, the parties were well familiar with the existence of the said issues. Under the circumstances in face of the want of framing of issues, the prejudice was not caused nor the proceedings were vitiated. As per the discussions and observations made above, when the learned Trial Court as well as learned 1st Appellate Court both have given their findings in issue No.5 on the basis of pleadings and evidence of the parties answering issue No.5 that, Lata (defendant No.3) is the daughter of Baidyanath, then at this juncture, in view of the principles of law Page 12 of 15 enunciated in the ratio of the above decisions, it cannot be held that, in absence of specific issue regarding daughtership of Lata i.e. defendant No.3, the defendant No.1 has been prejudiced in the impugned judgments and decrees passed by the learned Trial Court and learned 1st Appellate Court. 18. So far as the sustainability of the impugned judgments and decrees passed by the learned Trial Court and learned 1st Appellate Court relating to the entitlement of Lata (defendant No.3) as 1/3rd share from the suit properties as the daughter and sole successor of Baidyanath is concerned; P.Ws.2 & 3 have specifically deposed in their respective evidence corroborating their pleadings that, the defendant No.3 (Lata) is the daughter of Baidyanath. Their evidence about the same made in their respective examinations in chief has not been assailed in any manner through cross examination from the side of the defendant No.1. The defendant No.1 has also deposed in her evidence that, she (defendant No.1) is the daughter of Baidyanath and her such testimony has also remained unassailed. When the P.Ws 2, 3 and D.W.1 have specifically deposed in their respective evidence corroborating each other that, the defendant No.3 (D.W.1) (Lata) is the daughter of Baidyanath and when their said evidence has not been shaken or assailed in any manner, then at this Page 13 of 15 juncture, the findings and observations made by the learned Trial Court and learned 1st Appellate Court that, the defendant No.3 (Lata) is the daughter of the Baidyanath cannot be held as erroneous. The certified copy of the Birth Register, vide Ext.2 (which has been proved on behalf of the plaintiffs) is also going to establish that, Lata (defendant No.3) is the daughter of Baidyanath. It has also been undisputedly established that, the son of Baidyanath i.e. Gajendra was adopted since his childhood by Narayan Das. So, after the adoption of Gajendra to an another family, the defendant No.3 (Lata) is the only successor of Baidyanath. 19. The aforesaid findings and observations made by the learned Trial Court and learned 1st Appellate Court that, Lata is the only successor of Baidyanath and she has 1/3rd share in the ‘Kha’ Schedule joint and undivided suit properties. For which, the alienation made by the defendant No.3 (Lata) in respect of some of the suit properties in the year 1981 as per the sale deeds vide Exts.A & B in favour of the plaintiffs and defendant No.2 are valid and at the time of partition of 1/3rd share of the plaintiffs from the suit properties, the properties sold by the defendant No.3 (Lata) to the plaintiffs and defendant No.2 through sale deeds vide Exts.A & B shall be adjusted in favour of the plaintiffs and defendant Page 14 of 15 No.2 are not illegal or improper in any manner for the reasons assigned above. 20. When as per the discussions and observations made above, the concurrent findings of facts made by the learned Trial Court as well as learned 1st Appellate Court through appreciation of materials and evidence available in the record are neither unreasonable nor improper, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellants (successors of the defendant No.1) does not arise. 21. Therefore, there is no merit in this 2nd appeal filed by the appellants (successors of the defendant No.1). The same must fail. 22. In result, this 2nd appeal filed by the appellants (successors of the defendant No.1) is dismissed on contest, but without cost. The judgments and decrees passed by the learned Trial Court and learned 1st Appellate Court in O.S. No.23 of 1983-I and in S.J. Appeal No.40 of 1986-I respectively are confirmed. Signature Not Verified Digitally Signed Orissa High Court, Cuttack. Signed by: RATI RANJAN NAYAK 23.12.2025//Utkalika Nayak// Junior Stenographer Reason: Authentication Location: OHC Date: 27-Dec-2025 14:57:55 (A.C. Behera), Judge. Page 15 of 15
Arguments
and learned counsel for the respondents. 16. As per the judgments and decrees of the learned Trial Court and learned 1st Appellate Court on the basis of the pleadings and evidence of the parties, both the aforesaid formulated substantial questions of law are interlinked having ample nexus with each other, for which, both the substantial questions of law are taken up together analogously for their discussions hereunder. Page 9 of 15 17. Though the specific issue was not framed by the learned Trial Court to answer, whether Lata (defendant No.3) is the daughter of Baidyanath, but the issue Nos.4 & 5 were framed touching the said point/issue to answer the same indirectly, because the issue Nos.4 & 5 were framed to answer, whether the registered sale deed dated 03.11.1981 executed by Lata (defendant No.3) in respect of the suit properties in favour of the plaintiffs is genuine and whether Lata (defendant No.3) was/is in physical possession over the properties left by Baidyanath. The aforesaid two issues vide issue Nos.4 & 5 were indirectly going to answer, whether Lata (defendant No.3) is the daughter of Baidyanath or not and both the parties knowing very well that, the said two issues relate to the daughtership of Lata and her interest in the suit properties, both the parties had led evidence in respect of the same and they had proceeded with the trial of the suit knowing very well about the said controversy between them. The learned Trial Court has specifically answered issue No.5 that, the plaintiffs have proved that, the defendant No.3 (Lata) is the daughter of Baidyanath. The said findings of the learned Trial Court i.e. Lata (defendant No.3) is the daughter and sole successor of Baidyanath has already been confirmed by the learned 1st Appellate Court in its judgment and decree after appreciating the materials on record. Page 10 of 15 The law relating to the sustainability of a judgment and decree in a suit, when there will an answer on a particular point without any specific issue for the same, but on the basis of pleadings and evidence of the parties has already been clarified in the ratio of the following decisions:- (i) In a case between K. Ballarigowda Vrs. Sarojamma reported in 2018 (2) Civ.C.C. 284 (Karnataka) that, A mere non-framing of an issue cannot be said to cause prejudice to the party, when both the parties have understood as to what are their cases and how they have to lead evidence, what burden is cast upon them and what they have to seek before the Court. (ii) In a case between Prem Lal Yadav Vrs. Rajendra Prasad Chandravansi reported in Lawmirror-cum-File No.76828 and (Sri) Gangai Vinayagar Temple and anr. Vrs. Meenakshi Ammal and Ors. reported in 2016 (II) CLR (SC) 96 that, Non-framing an issue is not significant, when parties are aware of rival cases and that issue is present in connected matter and evidence recorded on it without demur. (iii) In a case between Asia Begum and Ors. Vrs. Mohmuda Begum reported in 2010 (2) Civ.C.C. 391 (Andhrapradesh) that, Non-framing of any specific issue will not render the judgment invalid, provided, the court answers the controversy between the parties by recording cogent reasons, by considering the entire evidence on record. (iv) In a case between Harish Kashinath Mane Vrs. Haribhau Adkoji Sapate reported in 2010 (4) Civ.C.C. 159 (Bombay) that, Page 11 of 15 Issues are framed only for the purpose of regulating the