The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.84 of 1989 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Harish Chandra Giri (dead) & Others -versus- …. Appellants Hari Mahanta (dead) & Others …. Respondents For Appellants - Mr.S.K.Patnaik, Advocate On behalf of Mr.P.K.Patnaik,Advocate For Respondents - Ms.Sumitra Mohanty,Advocate CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :28.11.2024:: Date of Judgment :18.12.2024 A.C. Behera, J. This Second Appeal has been preferred by the appellants against the confirming judgment. 2. The appellants in this Second Appeal were defendant Nos.2 and 5 before the Trial Court in the suit vide T.S. No.28 of 1982-I and appellants before the 1st Appellate Court in the first appeal vide T.A. No.20 of 1986. The predecessors of the respondent Nos.2 to 4(b) and 5 were the plaintiffs before the trial court in the suit vide T.S. No.28 of 1982-I and SA No.84 of 1989 Page 1 of 16 // 2 // respondent Nos.1 to 5 before the first appellate court in the first appeal vide T.A. No. 20 of 1986. The predecessors of the respondent Nos. 6 to 9(e) were the defendant Nos.1, 3 and 4 before the trial court in the suit vide T.S. No. 28
Legal Reasoning
of 1982-I and respondent Nos.6 to 8 before the first appellate court in the first appeal vide T.A. No. 20 of 1986. 3. The suit of the plaintiffs vide T.S. No. 28 of 1982-I before the trial court against the defendants was a suit for declaration and recovery of possession. 4. As per plaint, the defendant No.1 is the father and defendant Nos.2 to 5 are the four sons of defendant No.1. The plaintiffs are the purchasers from defendant Nos.1, 3 and 4. According to the plaintiffs, the defendants had their ancestral properties in two Mouzas (villages) i.e. Kudumda and Bhatchatar. The suit properties described in schedule “Ka” along with other properties were the ancestral properties of the defendants. Fifteen years prior to 1982, the defendants being the father and sons respectively had divided their all ancestral properties including the suit properties. In such partition between them, the properties in Mouza Bhatchhatar were allotted in favour of the defendant No.2 and the properties in Mouza Kudumda were SA No.84 of 1989 Page 2 of 16 // 3 // allotted in favour of defendant Nos.1, 3, 4 and 5. After such division of their all ancestral properties including the suit properties between the defendant Nos.1 to 5, they (defendant Nos.1 to 5) were possessing their respective allotted properties separately. While they were in separate possession of their respective allotted properties, first, defendant No.1 sold Item No.1 of schedule “ka” suit properties to the plaintiff Nos.2 and 3 on dated 4.03.1974 by executing and registering sale deed vide ext.2 wherein, the defendant No.3 was an identifying witness. Thereafter, the defendant Nos.3 and 4 sold the suit property described in Item No.3 of schedule “ka” to the plaintiff Nos.2 and 3 by executing and registering sale deed dated 17.03.1975 vide ext.3, wherein, the defendant No.1 was an identifying witness. Thereafter, the defendant No.1 sold the suit properties described in Item No.2 of schedule “ka” to the plaintiff Nos.2 and 3 by executing and registering sale deed dated 15.09.1975 vide Ext.1, wherein, the defendant No.5 was an identifying witness and accordingly, the schedule “ka” suit properties were sold by the defendant Nos.1, 3 and 4 in favour of the plaintiff Nos.2 and 3 through registered sale deeds vide Exts.2, 3 and 1within the knowledge of all the defendants including the defendants Nos.2 and 5. SA No.84 of 1989 Page 3 of 16 // 4 // After purchasing all items of suit properties described in Schedule “ka” from the defendants Nos.1, 3 and 4, through the aforesaid sale deeds vide Exts.2, 3 and 1 on different dates, they (plaintiffs) possessed the same from the date of their above purchase through sale deeds being the owners thereof, but, surprisingly in the year 1979, the defendants forcibly entered into the same and dispossessed the plaintiffs from the suit properties giving them (plaintiffs) threat to kill. For such dispute between the plaintiffs and defendants, a proceeding under Section 145 of Cr.P.C. was initiated, but, when, the said proceeding under Section 145 of Cr.P.C. was ended in favour of the defendants on dated 24.12.1981, then, the plaintiffs approached the Civil Court by filling the suit vide T.S. No. 28 of 1982-I against the defendants being the plaintiffs praying for declaration of their title over the suit properties and to recover the possession of the suit properties from the defendants. 5. Having been noticed from the Trial Court in the suit vide T.S. No. 28 of 1982-I, only two defendants i.e. defendant Nos.2 and 5 contested the suit of the plaintiffs by filing their written statement separately, but, the vendors of the plaintiffs i.e. defendant Nos.1, 3 and 4 were set ex- parte. SA No.84 of 1989 Page 4 of 16 // 5 // 6. Though, the defendant Nos.2 and 5 contested the suit of the plaintiffs by filing their written statements separately, but, their stands in their respective written statements against the plaintiffs were identical. According to the pleadings of the defendant Nos.2 and 5, the plaintiffs have managed to execute the sale deeds vide Exts.1, 2 and 3 from the defendant Nos.1, 3 and 4 in respect of the suit properties described in schedule “ka” under suspicious circumstances without payment of any consideration amount. The signature of the defendant No.5 in the sale deed executed by the defendant No.1 in favour of the plaintiff Nos.2 and 3 was taken in the blank papers, but, the suit properties described in schedule “ka”along with their other joint ancestral properties have not at all been partitioned between them (defendants) through any metes and bound partition. As such, the suit properties along with their other joint ancestral properties are still joint. For which, the defendant Nos.1, 3 and 4 have no right to alienate the suit properties in favour of the plaintiffs and the plaintiffs have not at all taken possession of the suit properties at any point of time and as such, the plaintiffs have no title and possession over the suit properties. For which, the suit of the plaintiffs is liable to be dismissed. SA No.84 of 1989 Page 5 of 16 // 6 // 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the Trial Court in the suit vide T.S. No. 28 of 1982-I and the said issues are:- I s s u e s Is the suit maintainable? Have the plaintiffs any cause of action against the defendant Nos.2 and 5? Is the suit barred by limitation? Is the suit bad for non-joinder and mis-joinder of parties? Are the defendants estoppel to challenge the claim of the plaintiffs? Are the plaintiffs entitled to the relief or reliefs claimed against all the defendants or any of them? Are the plaintiffs, alternatively, entitled to the money claimed? To what reliefs, if any, are the plaintiffs entitled to? 1. 2. 3. 4. 5. 6. 7. 8. 8. In order to substantiate the aforesaid reliefs, sought for by the plaintiffs against the defendants, they (plaintiffs) examined six numbers of witnesses before the trial Court in the suit vide T.S. No. 28 of 1982-I including the plaintiff No.2 as P.W.1 and exhibited series of documents on their behalf vide Exts.1 to 6. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the contesting defendant Nos.2 and 5 also examined six numbers of witnesses from their side including the defendant No.2 as D.W.1 and relied upon the documents vide Ext.A to D. SA No.84 of 1989 Page 6 of 16 // 7 // 9. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered all the issues in favour of the plaintiffs and against the defendants including contesting defendant Nos.2 and 5 and basing upon the findings and observations made by the Trial Court in the issues, the Trial Court decreed the suit of the plaintiffs on contest against the defendant Nos.2 and 5 and ex-parte against the defendant Nos.1, 3 and 4 on dated 25.04.1986 and 01.05.1986 respectively and declared the right, title, interest and possession of the plaintiffs over the suit properties described in Schedule “ka” of the plaint entitling them (plaintiffs) to recover the possession of the said suit properties from the defendants directing the defendants to deliver possession of the suit properties to the plaintiffs within 60 days from the date of decree assigning the reasons that, the suit properties along with other joint properties of the defendants were partitioned between them (defendants) fifteen years prior to the filing of the suit and on the basis of such partition, the defendants were possessing their respective allotted properties and after such partition, while the defendant Nos.1, 3 and 4 were in separate possession over their separate properties, they (defendant Nos.1, 3 and 4) have sold the suit properties to the plaintiffs through sale deeds vide Exts.2, 3 & 1 and delivered possession thereof and accordingly, the plaintiffs were possessing the suit Page 7 of 16 SA No.84 of 1989 // 8 // properties, but, in the year 1979, the defendants forcibly dispossessed the plaintiffs from the suit properties, for which, the plaintiffs are entitled to recover the possession of the suit properties from the defendants, as, they (plaintiffs) are the real owners of the suit properties. 10. On being dissatisfied with the aforesaid judgment and decree passed on dated 25.04.1986 and 01.05.1986 respectively by the Trial Court in T.S. No. 28 of 1982-I against all the defendants, the contesting defendant Nos.2 and 5 challenged the same by preferring the 1st Appeal vide T.A. No.20 of 1986 being the appellants against the plaintiffs arraying them (plaintiffs) as respondents and also arraying defendant Nos.1, 3 and 4 as proforma respondents after taking several grounds in their appeal memo. 11. After hearing from both the sides, the 1st Appellate Court dismissed that first Appeal vide T.A. No.20 of 1986 of the defendant Nos.2 and 5 as per its judgment and decree dated 25.11.1988 and 14.12.1988 respectively concurring/accepting the findings and observations made by the Trial Court in the suit vide T.S. No. 28 of 1982-I in favour of the plaintiffs and against the defendants. 12. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st Appeal vide T.A. No.20 of 1986 of the defendant SA No.84 of 1989 Page 8 of 16 // 9 // Nos.2 and 5, they (defendant Nos.2 and 5) challenged the same by preferring this second appeal being the appellants against the plaintiffs arraying them (plaintiffs) as respondents and also arraying the LRs of the defendant Nos.1, 3 and 4 as proforma respondents. 13. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Are the courts below justify in holding that, the vendors and attesting witnesses to the deeds are estopped from challenging the transactions, when defendant No.1 has no connection in such sales and defendants are merely witness to deeds, to whom; recitals have not been read over and explained? (ii) In view of the admitted position that, the defendants till date are residing jointly in mess and residence and whether the courts below are correct in holding that there was previous partition between them in the matter of cultivable lands? (iii) In absence of any specific finding by both the courts below that, there has been a partition of the joint family property between defendants by metes and bounds at any particular point of time, are the learned court below justified in directing the plaintiff’s prayer for declaration of title along with recovery of possession without any prayer of partition of the portion of land purchased by the plaintiffs? 14.
Legal Reasoning
I have already heard from the learned counsels of both the sides. SA No.84 of 1989 Page 9 of 16 // 10 // As, the above three substantial questions of law are interlinked having ample nexus with each other, as per the pleadings of the parties and judgments of the Trial Court and 1st Appellate Court, then, all the three formulated substantial questions of law are taken up together analogously for their discussions here under:- 15. It is the specific/definite case of the plaintiffs that, all the ancestral properties of the defendants in two Mouza i.e. Kudumda and Bhatchatar including the suit properties described in Schedule “ka” of the plaint were divided between all the defendants fifteen years prior to the institution of the suit and in such division, the properties in Mouza Bhatchhatar had fallen in the share of the defendant No.2 and the defendant No.2 was possessing the said properties in Mouza Bhatchhatar. The properties in Mouza Kudumda had fallen in the share of defendant Nos.1, 3, 4 & 5. So, the defendant Nos.1, 2, 3 and 4 were possessing their respective allotted properties in mouza Kudumda and out of their separate properties, the defendant Nos.1, 3 and 4 have sold their respective properties i.e. suit properties to the plaintiffs by executing and registering the sale deeds vide Exts.2, 3 and 1 respectively on different dates and accordingly, since the date of their respective purchase, they (plaintiffs) were possessing the same being the owners thereof, but, in the SA No.84 of 1989 Page 10 of 16 // 11 // year 1979, the defendants forcibly dispossessed them (plaintiffs) from the same. For which, they (plaintiffs) filed the suit seeking the reliefs i.e. for declaration and for recovery of possession. 16. They (plaintiffs) have adduced evidence through their witnesses including the plaintiff No.2 as P.W.1 corroborating their pleadings. The case of the plaintiffs finds support from the mouth of the contesting defendant No.2. Because, during cross examination to the defendant No.2 (D.W.1), he (defendant No.2, D.W.1) has deposed in his evidence by stating that, “he used to stay at Bhatchatar and he got the lands in Bhatchatar Mouza in his share and he has sold some lands in Bhatchatar Mouza in the year 1979 by executing sale deed vide Ext.4 to one Madan Behera.” Like contesting defendant No.2, the contesting defendant No.5 has also corroborated the case of the plaintiffs. Because, the contesting defendant No.5 has purchased some properties after partition from the defendant No.1 as per sale deed vide Ext.5 admitting previous partition of their all ancestral properties between him and defendant Nos.1 to 4. In the pleadings of the defendant No.5, he (defendant No.5) has admitted about the putting his signature on the sale deed executed by defendant No.1 in favour of the plaintiff No.2 and 3 vide Ext.1. SA No.84 of 1989 Page 11 of 16 // 12 // In all the sale deeds executed by the defendant Nos.1, 3 and 4 in favour of the plaintiffs vide Exts.2, 3, and 1, there is clear indication about their prior partition in respect of their all joint properties. In the sale deed vide Ext.4 dated 09.03.1979 executed by the defendant No.2 (D.W.1) in favour of one Madan Behera, he (defendant No.2, D.W.1) has also admitted about the previous partition of their all joint properties between him (defendant No.2) and defendant Nos.1, 3, 4 and 5. Accordingly, there was inter-se transaction between contesting defendant No.5 and 1 through Ext.5, by which, the defendant No.5 has purchased the separate allotted properties of defendant No.1 admitting previous partition of their all ancestral properties. 17. On the basis of the aforesaid inter-se transaction between contesting defendant Nos.1 and 5 through Ext.5 as well as transaction made by the contesting defendant No.2 through Ext.4 and also transactions made by the defendant Nos.1, 3 and 4 in favour of the plaintiffs through Exts.2, 3 and 1 admitting previous partition of their all joint properties along with the oral evidence of the parties, the trial court as well 1st Appellate Court, both have concurrently held that, SA No.84 of 1989 Page 12 of 16 // 13 // “there was partition of all the joint ancestral properties of the defendants between them (defendants) fifteen years prior to the institution of the suit and after such partition, they (defendants) have made separate transaction between them, plaintiffs and third party through sale deeds vide Exts.5, 2, 3, 1 and 4 admitting their previous partition and when, the plaintiffs have purchased separately allotted properties of the defendant Nos.1, 3 & 4 i.e. the suit properties described in schedule “ka” through separate sale deeds vide Exts.2, 3 and 1, then, they (plaintiffs) are the lawful owners of the suit properties, in which, the defendants have no interest, but, when, the defendants have forcibly dispossessed the plaintiffs from the suit properties, then the plaintiffs are entitled to get the decree of declaration of their title over the suit properties and they (plaintiffs) are also entitled to get recovery of possession of the suit properties from the defendants.” 18. The aforesaid concurrent findings of the Trial Court and 1st Appellate Court finds support from the ratio of the following decisions:- (i) In a case between Kesharbai @ Pushpabai Eknathrao Nalawade (D) by LRs. & Another Vrs. Tarabai Prabhakarrao SA No.84 of 1989 Page 13 of 16 // 14 // Nalawade & Others reported in II (2014) CLT 88 (S.C). at Para No.19, it has been held by the Apex Court that, “once a partition in sense of division of right, title or status is proved or admitted, presumption is that, all joint property was partitioned or divided.” (ii) In a case between Krishna Nand Sahu & Others Vrs. Suwanti Devi & Others reported in 2015 (1) CCC 488 (Patna) at Para No.22, it has been held by the Hon’ble Courts that, “when, it appears from the record that, Parties dealing the properties separately since 1943 and even there are also inter-se transactions and the parties have sold and acquired Properties separately and one of the parties admitted that, there was partition in 1938 and the plaintiff No.1 separated from them, for which, it was held that, since there had already been partitioned between the parties and no unity of title and possession, for which, the plaintiffs are not entitled to repartition of properties.” (iii) In a case between Ram Bahadur Nath Tiwary Vrs. Kedar Nath Tiwary & Others reported in AIR 1977 (Patna) 59 at Para No.14, it has also been held by the Hon’ble Courts that, “separate transactions by members of a joint family may not by themselves establish separation, but, mutual transactions between two members of a family stand on an entirely different footing and they furnish a very strong evidence of separation.” 19. When, there are separate transactions between the defendants including the contesting defendant No.2 as per exts.2, 3, 1 and 4 and SA No.84 of 1989 Page 14 of 16 // 15 // when, there is also inter-se transaction between the defendant No.1 and defendant No.5 as per sale deed vide Ext.5 admitting their previous partition/division of their all ancestral properties including the suit properties and when, defendant No.2 (D.W.1) has deposed in his evidence by stating that, he has been allotted with the properties in mouza Bhatchatar and he is possessing the same and he has also sold his separately allotted properties through sale deed vide Ext.4, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court, it is held that, all the ancestral properties of the defendants including the suit properties described in Schedule “ka” were partitioned between all the defendants prior to the sales made by the defendant Nos.1, 3 and 4 in favour of the plaintiffs through sale deeds vide Exts.2, 3 and 1, for which, the defendant Nos.1, 3 and 4 are the owners of the suit properties and they were also possessing the same being the owners thereof, but, in the year 1979, the defendants have forcibly dispossessed them (plaintiffs) from the same, for which, the plaintiffs are entitled to get recovery of possession of the same from the defendants. Therefore, by applying the ratio of the decisions referred to (supra) to this appeal at hand, it is held that, the judgments and decrees passed by SA No.84 of 1989 Page 15 of 16 // 16 // the Trial Court and 1st Appellate Court in T.S. No.28 of 1982-I and in T.A. No.20 of 1986 are not erroneous in any manner, for which, the question of interfering with the same through this 2nd appeal filed by the defendant Nos.2 and 5 does not arise. Therefore, there is no merit in the appeal of the appellants. The same must fail. 20. In result, the appeal preferred by the appellants (defendant Nos.2 and 5) is dismissed on contest against the respondents, but, without cost. 21. The judgment and decree passed by the Trial Court in T.S. No.28 of 1982-I and 1st Appellate Court in T.A. No.20 of 1986 are confirmed. Orissa High Court, Cuttack 18th of December, 2024/ Binayak Sahoo// Junior Stenographer (A.C. Behera), Judge Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Dec-2024 16:46:04 SA No.84 of 1989 Page 16 of 16