The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.244 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sadhabani Dei …. Appellant -versus- Pranakrushna Mishra …. Respondent For Appellant - Mr.S.P.Mishra,Sr.Advocate Mr.M.Mohanty,Advocate For Respondent - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :11.07.2024:: Date of Judgment :07.08.2024 A.C. Behera, J. This Second Appeal has been preferred against the reversing judgment. 2. The appellant of this Second Appeal was the plaintiff before the Trial Court in the suit vide T.S. No.31 of 1987 and she was the respondent before the 1st Appellate Court in the first appeal vide T.A. No.2 of 1992. The respondent of this 2nd Appeal was the defendant before the Trial Court in the suit vide T.S. No.31 of 1987 and he was the SA No.244 of 1995 Page 1 of 16 // 2 // appellant before the 1st Appellate Court in the 1st appeal vide T.A. No. 2 of 1992. 3. The suit of the plaintiff (appellant in this 2nd appeal) against the defendant (respondent in this 2nd appeal) was a suit for declaration. 4.
Legal Reasoning
According to the plaintiff, the suit properties under Khata
Legal Reasoning
No.138, Plot No.46 belong to the deity, Shri Biswanath Mahadev of village Kokalaba. Bhagabat Rana along with others were the Marfatdars of the deity, Shri Biswanath Mahadev. The said Bhagabat Rana was possessing Ac.1.80 decimals of land of the deity as its Marfatdar. That, Bhagabat Rana executed an unregistered agreement dated 10.02.1970 in order to sell the suit properties i.e. Ac.0.22 decimals of Plot No.46 under Khata No.138 in Mouza-Kokalaba (those are the properties of the deity Shri Biswanath Mahadev) to the plaintiff for a consideration amount of Rs.1210/-, and received Rs.500/- out of Rs.1210/- as advance and delivered the possession of the suit properties to the plaintiff. Subsequent thereto, Bhagabat Rana also received the rest consideration amount from the plaintiff. While, she (plaintiff) was in possession over the suit properties, on the basis of the aforesaid unregistered agreement to sell dated 10.02.1970, the defendant being her husband’s brother claimed possession over the SA No.244 of 1995 Page 2 of 16 // 3 // same without having his any interest therein. For which, for such dispute between them, a proceeding under Section 145 Cr.P.C. was initiated. When, the defendant claimed his title over the suit properties, then, she (plaintiff) approached the Civil Court by filing the suit vide T.S. No.31 of 1987 against the defendant, praying for a declaration that, the defendant has no interest or possession over the suit properties along with other reliefs, to which, she (plaintiff) is entitled for. 5. Having been noticed from the Trial Court in the suit vide T.S. No.31 of 1987 filed by the plaintiff, the defendant contested the same by filing his written statement denying the allegations alleged by the plaintiff in her plaint against him (defendant) taking his stands therein that, he (defendant) and the husband of the plaintiff are two brothers. While, they were living in their joint mess in their joint family, the suit properties were purchased from Bhagabat Rana, out of their joint family fund, for which, the plaintiff herself cannot claim her any interest over the suit properties. When, the partition of their all joint family properties including the suit properties was made between him and the husband of the plaintiff, at that time, their all joint properties were divided equally between them and in such partition, western half SA No.244 of 1995 Page 3 of 16 // 4 // of the suit properties were allotted in his favour. Accordingly, he (defendant) has been paying rent in respect of his half share in the suit properties and as such, he has been possessing half share in the suit properties without any interruption. The suit properties were not purchased by the plaintiff out of her own stridhan. The plaintiff has never paid the rent of the suit properties alone. For which, the suit of the plaintiff against him (defendant) is not maintainable under law and the plaintiff is not entitled for any relief against him (defendant). Therefore, the suit of the plaintiff is liable to be dismissed against him (defendant) with costs. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six numbers of issues were framed by the Trial Court in the suit vide T.S. No. 31 of 1987 and the said issues are:- I s s u e s 1. Whether, the suit properties were purchased before the partition by the husband of the plaintiff and the defendant? 2. Were the suit properties purchased out of the joint family funds or out of the Stridhan of the plaintiff? 3. Were the suit properties equally divided between the defendant and the husband of the plaintiff at the time of partition between them? SA No.244 of 1995 Page 4 of 16 // 5 // Was there a Panchayat, where it was 4. confirmed that, the suit properties would be equally divided between two brothers? Is the defendant in peaceful possession of 5. the suit properties after partition? Any other relief, to which, the plaintiff 6. entitled for? 7. In order to substantiate the aforesaid relief, sought for by the plaintiff against the defendant, she (plaintiff) examined six witnesses from her side including her (plaintiff) and her husband as P.Ws.5 and 6 respectively and exhibited series of documents on her behalf vide Exts.1 to 18. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant examined four witnesses on his behalf including him (defendant) as D.W.4 and relied upon the documents vide Exts.A to B-C from his side. 8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered issue Nos.1, 2, 3, 5 and 6 in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the Trial Court in issue Nos.1, 2, 3, 5 and 6 in favour of the plaintiff and against the defendant, the Trial Court decreed the suit of the plaintiff as per its judgment and decree dated 13.12.1991 and SA No.244 of 1995 Page 5 of 16 // 6 // 21.12.1991 respectively on contest against the defendant, but without cost and declared that, the defendant has got no interest and possession in the suit properties assigning the reasons that, the suit properties have been purchased by the plaintiff in the year 1970 and prior to 1970, the husband of the plaintiff and defendant were separated. As, the suit properties are the self-acquired properties of the plaintiff, in which, the defendant has no interest. So, the question of dividing the suit properties between the husband of the plaintiff and defendant equally does not arise. Therefore, the defendant has no interest and possession in the suit properties, but the plaintiff has interest and possession in the suit properties. For which, the plaintiff is entitled to get the decree against the defendant and accordingly the Trial Court decreed the suit of the plaintiff in her favour and against the defendant. 9. On being dissatisfied with the aforesaid judgment and decree dated 13.12.1991 and 21.12.1991 respectively passed by the Trial Court in the suit vide T.S. No.31 of 1987 in favour of the plaintiff and against the defendant, he (defendant) challenged the same by preferring the 1st Appeal vide T.A. No.2 of 1992 being the appellant against the plaintiff arraying her (plaintiff) as respondent. SA No.244 of 1995 Page 6 of 16 // 7 // 10. After hearing from both the sides, the 1st Appellate Court allowed that first Appeal vide T.A. No.2 of 1992 of the defendant on contest and set aside the judgment and decree passed by the Trial Court in the suit vide T.S. No.31 of 1987 and dismissed the suit of the plaintiff on contest against the defendant as per its judgment and decree dated 05.09.1995 and 14.09.1995 respectively assigning the reasons that, when, undisputedly the suit properties are the properties of the deity Shri Biswanath Mahadev and no permission has been obtained by its Marfatdar i.e. Bhagabata Rana from the Endowment Commissioner as per law for selling the suit properties through execution of an unregistered agreement to sell on dated 10.02.1970 vide Ext.1 in favour of the plaintiff, for which, the said Bhagabata Rana was not competent under law to execute the agreement to sell vide Ext.1 in respect of the properties of the deity Shri Biswanath Mahadev. Therefore, the plaintiff cannot acquire any right or interest in the suit properties on the basis of such invalid document vide Ext.1 (unregistered agreement to sell) and as such, the plaintiff is neither the purchaser of the suit properties nor she has acquired any right in the suit properties and her possession if any over the suit properties on payment of Sanja to the deity through its Marfatdar is within the category of permissive possession, which can be terminated at any Page 7 of 16 SA No.244 of 1995 // 8 // time. Basing upon such temporary possession, the plaintiff cannot acquire any right or interest in the suit properties and as such, the agreement to sell vide Ext.1 in respect of the properties of the deity executed by one of the Marfatdar i.e. Bhagabata Rana in favour of the plaintiff is not valid and genuine. For which, the Trial Court should have dismissed the suit of the plaintiff refusing the prayer of the plaintiff. Assigning the above reasons, the 1st Appellate Court set aside the judgment and decree passed by the Trial Court in favour of the plaintiff and dismissed the suit of the plaintiff vide T.S. No.31 of 1987 on contest. 11. On being aggrieved with the aforesaid judgment and decree dated 05.09.1995 and 14.09.1995 respectively passed by the 1st Appellate Court vide T.A. No.2 of 1992 in setting aside the judgment and decree of the Trial Court passed in favour of the plaintiff, she (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendant arraying him (defendant) as respondent. 12. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- SA No.244 of 1995 Page 8 of 16 // 9 // i. Whether the plaintiff has built up her case of perfection of title by prescription/adverse possession over the suit properties? ii. Whether any permission was necessary for enter into the agreement dated 10.02.1970 vide Ext.1 between Bhagabata Rana and the plaintiff? iii. Whether, the 1st Appellate Court is justified in coming to the conclusion that, the suit is hit by the provision of Section 53-A of the T.P. Act? 13. I have already heard from the learned counsel for the appellant (plaintiff) only, as none appeared from the side of the defendant (respondent) to participate in the hearing of this 2nd appeal. 14. So far as, the first substantial question of law i.e. whether the plaintiff has built up her case of perfection of title by prescription/adverse possession over the suit properties is concerned; Here, in this suit/appeal at hand, it is the undisputed case of the parties that, the suit properties are the properties of the deity Shri Biswanath Mahadev. As per law, the plea of title through adverse possession can only be taken against the owner of the property. Because, the plea of title through adverse possession by a party against his/her opponent is his/her indirect admission to the title of SA No.244 of 1995 Page 9 of 16 // 10 // his/her opponent over the suit properties. So, without, admitting the title of the opponent, one cannot claim title over the suit properties through adverse possession. Here, in this suit/appeal at hand, when, admittedly the deity Shri Biswanath Mahadev is the owner (title holder) of the suit properties and when, the plaintiff is claiming title over the suit properties through adverse possession against the defendant, to whom, she (plaintiff) is not admitting as the owner of the suit properties, then, the claim of adverse possession of the plaintiff over the suit properties against the defendant itself is not entertainable under law. Because, the plaintiff is not admitting the defendant as the owner of the suit properties. 15. It is the settled propositions of law that, no plea of adverse possession can be taken against minor. When, the owner of the suit properties i.e. deity, Shri Biswanath Mahadev is a perpetual minor, then, as per law, the plaintiff is precluded under law to take the plea of adverse possession against the suit properties, those are the properties of the minor i.e. deity Shri Biswanath Mahadev. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- SA No.244 of 1995 Page 10 of 16 // 11 // i. 2007 (II) CCC 111 (M.P.):Dinesh Kumar and others Vrs. Kaushal Chand Jain & Others— Limitation Act, 1963—Adverse possession—There could not be adverse possession against a minor. (Para 16) ii. 2014 (I) CLR 830 (D.B.): Chittaranjan Sahoo Vrs. Collector, Khurda & Others—Land belonging to the deity—Transfer by sevayats—Transferees in possession for more than the statutory period of limitation—Cannot claim title by adverse possession. (Para 38) 16. As, the suit properties belong to the deity Shri Biswanath Mahadev and the deity is a perpetual minor, so, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the claim of title of the plaintiff over the suit properties i.e. against the properties of the minor i.e. deity Shri Biswanath Mahadev through adverse possession is not entertainable under law, that too, in absence of the deity Shri Biswanath Mahadev. 17. Here in this suit/appeal at hand, the plaintiff has claimed her title over the suit properties through adverse possession, on the basis of an unregistered agreement to sell vide Ext.1. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- SA No.244 of 1995 Page 11 of 16 // 12 // i. 2019 (I) CLR 19: Ramanath @ Ramakanta Mohanty Vrs. Umesh Chandra Behera & Others—Adverse possession—Possession on the basis of an agreement for sale is permissive—Claim of adverse possession is unsustainable. (Para 24) ii. AIR 1996 (S.C.) 910: Mohan Lal (deceased) through his LRs. Kachru & Others Vrs. Mira Abdul Gaffar & Another—Agreement of sale—Party in possession of suit land pursuant to said agreement—Plea of title by adverse possession not available to him. (Para 4) iii. AIR 1990 (S.C.) 553: Achal Reddi Vrs. Ramakrishna Reddiar & Others—Adverse possession—Executory contract of sale—Purchaser put in possession in pursuance of contract—His possession cannot be adverse. (Para 8) iv. 2019 (I) Civ.C.C. (182) (H.P.): Surinder Prasad & Another Vrs. Madhur Green & Another— Unregistered agreement to sell—Does not confer any title nor transfer any interest in an immovable property—Defendant cannot claim any title on suit land on the basis of agreement to sell. (Para 14) 18. When, it has been clarified in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court that, a party cannot plead adverse possession on the basis of an agreement to sell like Ext.1, then, in this suit/appeal at hand, the claim of title of the plaintiff over the suit properties through adverse possession on the basis of an SA No.244 of 1995 Page 12 of 16 // 13 // unregistered agreement to sell vide Ext.1 against the defendant is not entertainable under law. Therefore, the plaintiff has failed to build-up her case for perfection of title by prescription through adverse possession over the suit properties. 19. So far as, the second and third substantial questions of law i.e. whether any permission was necessary for entering into the agreement to sell dated 10.02.1970 vide Ext.1 between Bhagabata Rana and the plaintiff and whether the 1st Appellate Court is justified in coming to the conclusion that, the suit of the plaintiff is hit by the provision of Section 53-A of the T.P. Act are concerned; It is forthcoming from the own plaint of the plaintiff that, the owner of the suit properties i.e. Shri Biswanath Mahadev is a public deity, being the deity of village Kokalaba. 20. As per law, for alienation of the properties of the deity like the suit properties either through agreement, lease, sale or in otherwise, permission from the Endowment Commissioner under Section 19 of the Orissa Hindu Religious Endowment Act, 1951 is mandatory and any alienation made in contravention of the said provision is void. SA No.244 of 1995 Page 13 of 16 // 14 // On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decision:- (i) 2015 (1) CLR 113: Ratan Garai Vrs. Hiralal Ram (dead) after him, his LRs. Smt. Pritiprava Lahari & Others—Orissa Hindu Religious Endowments Act, 1951— Section 19—Applicability—Permission for transfer— Permanent lease in contravention of Section 19—Invalid and abinitio void. (Para 8) 21. When, the plaintiff has indirectly claimed her title and possession over the suit properties, those are the properties of the deity i.e. Shri Biswanath Mahadev through a negative declaration that, defendant has no interest therein, then at this juncture, in absence of the deity, the suit of the plaintiff was not maintainable under law. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decision:- (i) 2018 (1) CLR 572: State of Orissa & Another Vrs. Sukuru Polai & Others—The suit property has been recorded in the name of Sri Sri Kasi Viswanath Mohaprabhu. The deity is a perpetual minor. In the absence of the deity, the suit is not maintainable. (Para 8) 22. In view of the ratio of the aforesaid decision of the Hon’ble Courts, the deity Shri Biswanath Mahadev was the necessary party in the suit, but, the plaintiff has not made the deity as a party in the suit, for which, the suit of the plaintiff is not maintainable under law. SA No.244 of 1995 Page 14 of 16 // 15 // As the properties of the village deity Shri Biswanath Mahadev was involved in the suit, for which, as per Section 68 of Orissa Hindu Religious Endowments Act, 1951, it was the duty and obligation of the Trial Court to give notice of such suit to the Commissioner of endowment at least a month before the commencement of hearing of this suit. Because, it was the bounden duty of the Trial Court to issue such notice to the commissioner of endowment, but no such notice has been issued by the learned Trial Court to the Commissioner of Endowment before hearing of the suit. So, for non impletion of deity i.e. Shri Biswanath Mahadev as the party to the suit and for non- issuance of notice to the Commissioner of Endowment by the Trial Court before hearing of the suit at least a month before commencing of the hearing of the suit and for terming the agreement to sell vide Ext.1 as void for the reasons assigned above, the findings and observations made by the 1st Appellate Court, reversing the findings and observations of the Trial Court holding that, the agreement to sell vide Ext.1 is invalid and nonest under law and on the basis of the said invalid agreement, the suit of the plaintiff was not maintainable under law, cannot be held unreasonable. Because, in answering the above substantial questions of law, it is held that, neither the plaintiff nor the defendant has any interest or possession as per law in the suit Page 15 of 16 SA No.244 of 1995 // 16 // properties, for which, the provisions of law enunciated in Section 53- A of the T.P. Act, 1882 have become inapplicable to this suit/appeal at hand. Therefore, there is no merit in the appeal of the appellant/plaintiff. The same must fail. 23. In result, the appeal filed by the appellant (plaintiff) is dismissed on merit, but without cost. The judgment and decree passed by the 1st Appellate Court vide T.A. No.2 of 1992 in setting aside the judgment and decree passed by the Trial Court in T.S. No.31 of 1987 is confirmed. Judge (A.C. Behera), Orissa High Court, Cuttack 7 th Of August, 2024/ Binayak Sahoo// Junior Stenographer Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Aug-2024 12:48:28 SA No.244 of 1995 Page 16 of 16