The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.110 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Smt. Dukhi Dasiani .…. Appellant -versus- Smt. Champa Das and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondents- Mr. S.D. Das, Senior Advocate along with Mr. M. Faradish, Advocate. Mr. S.S. Rao, Senior Advocate along with Mr. B.K. Mohanty, Advocate. CORAM: MR. JUSTICE A. C. BEHERA Date of Hearing :06.08.2024 :: Date of Judgment :13.08.2024 A.C. Behera, J. This second appeal has been preferred against the reversing judgment. 2. The appellant of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.140 of 1988 and respondent before the First Appellate Court in the 1st Appeal vide T.A. No.40/93(T.A.53/91- GDC). The predecessor of the respondents of this 2nd Appeal i.e. Udayanath Das was the defendant before the Trial Court in the suit vide S.A. No.110 of 1995 Page 1 of 16 {{ 2 }} T.S. No.140 of 1988 and appellant before the First Appellate Court in the 1st Appeal vide T.A. No.40/93(T.A.53/91-GDC). When, during the pendency of the 1st Appeal, the appellant Udayanath Das expired, then, his LRs (those are respondents in this 2nd Appeal) were substituted in his place. 3.
Legal Reasoning
The suit of the plaintiff (appellant in this 2nd Appeal) Smt. Dukhi Dasiani vide T.S. No.140 of 1988 against the defendant Udayanath Das (predecessor of the respondents in this 2nd Appeal) was a suit for declaration of title and recovery of possession. 4. The case of the plaintiff as per her pleadings against the defendant was that, Achuta Das was the original owner of the suit properties and house therein. The said Achuta Das died leaving behind his 3 sons i.e. Dandasi Das, Ulla Das & Balaji. Dandasi was adopted by the Jani family, for which, his relationship was ceased with the family of Achuta Das. After adoption of Dandasi, Ulla and Balaji were the joint owners of the suit properties. Balaji died issuless. Ulla died leaving behind his son Bana @ Banamali Das. So, after the death of Ulla & Balaji, the suit properties devolved upon Bana @ Banamali Das. Accordingly, Bana @ Banamali Das became the owner of the suit properties under Khata No.484. While Bana @Banamali Das was the owner of the suit properties, he sold the same to the plaintiff through registered sale deed S.A. No.110 of 1995 Page 2 of 16 {{ 3 }} No.1985 dated 22.08.1969. So, after purchasing the suit properties and the house standing thereon, the plaintiff become the owner of the same and let out the same to the defendant in the year 1985 on monthly rent of Rs.30/-. Since January, 1986, the defendant defaulted in paying the monthly rent of the suit house to the plaintiff, then, she (plaintiff) issued an advocate notice to the defendant on dated 26.05.1986 for payment of the arrear house rent and to vacate the suit house, to which, the defendant replied through his advocate by stating that, he (defendant) is the adopted son of Balaji, for which, he is the successor of Balaji, therefore he (defendant) has right, title and interest in the suit house and as such, he (defendant) is the owner of the suit house, for which, the plaintiff is not entitled to get any house rent from him (defendant) and also stated that, the plaintiff has no right, title and interest in the suit properties. Then, the plaintiff filed a case vide H.R.C. No.20/86 under Orissa House Rent Control Act against the defendant praying for realization of the arrear house rent as well as for eviction of the defendant from the suit house. The defendant contested the said H.R.C. Case filed by the plaintiff. 5. After conclusion of hearing of the said case vide H.R.C. No.20/86, the House Rent Controller-cum-Sub-Divisional Judicial Magistrate, Berhampur directed the defendant to vacate the suit house within one S.A. No.110 of 1995 Page 3 of 16 {{ 4 }} month from the date of the Order and also directed to pay the arrear house rent amounting to Rs.210/- to the plaintiff with the rent which will accrue till the date of vacating the suit house as per its final Order dated 23.12.1987. Against the said final Order dated 23.12.1987 passed in H.R.C. No.20/86 against the defendant, the defendant challenged the same by preferring H.R.C. Appeal No.5 of 1988. After hearing of that H.R.C. Appeal No.5 of 1988, the appellate authority under Orissa House Rent Control Act i.e. the learned Chief Judicial Magistrate, Ganjam, Berhampur as per its Judgment dated 22.07.1988 set aside the final Order dated 23.12.1987 of H.R.C No.20/86 and directed the plaintiff to approach the Civil Court by filing the suit for deciding the right and title over the suit properties, as both the parties are claiming right and title over the suit house, which can only be decided by the Civil Court only, but, the House Rent Controller has no jurisdiction to decide the same. So, as per its Judgment dated 22.07.1988 passed in H.R.C. Appeal No.5 of 1988, the plaintiff approached the Civil Court by filing the suit vide T.S. No.140 of 1988 against the defendant praying for declaration of her right, title and interest over the suit properties and for recovery of possession of the suit house after evicting the defendant therefrom along S.A. No.110 of 1995 Page 4 of 16 {{ 5 }} with other reliefs, to which, the plaintiff is entitled for as the court deems fit and proper. 6. Having been noticed from the Trial Court in the suit vide T.S. No.140 of 1988 filed by the plaintiff, the defendant contested the same by filing his written statement denying the allegations alleged by the plaintiff against him taking his stands inter alia therein that: Achuta Das had 3 sons i.e. Dandasi, Ulla and Balaji. Dandasi had 8 sons and 2 daughters. He (defendant) is one among the 8 sons of Dandasi. Balaji died issuless. Bana @ Banamali Das was the son of Ulla Das. The plaintiff is the daughter of Ulla Das. As Balaji had no son, for which, Balaji had adopted him (defendant) as his son. The suit house was originally belonged to his common ancestor i.e. Achuta Das. The father of the defendant i.e. Dandasi and his two brothers i.e. Ulla & Balaji were separated in respect of their house and properties along with the suit properties and house. In such separation, the suit house had fallen into the share of Balaji Das. The said Balaji Das had adopted him (defendant) through an unregistered adoption deed dated 16.04.1956, for which, he (defendant) is the legally adopted son of Balaji Das and as well as the sole successor of Balaji Das. So, after the death of Balaji Das, the suit house has devolved upon him (defendant). Therefore, he (defendant) is the owner over the suit house being the sole successor of Balaji. The S.A. No.110 of 1995 Page 5 of 16 {{ 6 }} plaintiff had married to one Raghu Das before 1956, for which, she (plaintiff) has no right in the suit house because, the suit house belong to the family of the defendant. As Bana @ Banamali Das was inimical terms with him (defendant), for which, the said Bana @ Banamali Das might have created the false document being colluded with his sister (plaintiff) in order to harass him (defendant). Therefore, the plaintiff has no cause of action for filing the suit against him (defendant). Because, the plaintiff has no right, title, interest and possession in the suit house and properties. But, he (defendant) is the owner and in possession over the suit house and properties. For which, the suit of the plaintiff is liable to be dismissed against him (defendant) with cost. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 (five) numbers of issues were framed by the Trial Court in the suit vide T.S. No.140 of 1988 and the said issues are:- I S S U E S (i) Whether the right & title of the plaintiff over the suit house has been established under law? (ii) Whether the defendant has got any manner of right & title over the suit house? (iii)Whether the suit is maintainable and whether there is any cause of action for the suit? (iv) Whether the plaintiff is entitled to get recovery of possession? (v) To what other relief? S.A. No.110 of 1995 Page 6 of 16 {{ 7 }} 8. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendant, she (plaintiff) examined altogether 3 (three) numbers of witnesses on her behalf including her as P.W.1 and exhibited series of documents from her side vide Exts.1 to 9. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant examined 3 (three) witnesses from his side including him as D.W.1 and exhibited the documents vide Exts.A to B. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the Trial Court in all the issues in favour of the plaintiff and against the defendant, the Trial Court decreed the suit of the plaintiff vide T.S. No.140 of 1988 on contest against the defendant but without cost as per its Judgment and Decree dated 29.08.1991 and 19.09.1991 respectively and declared the title of the plaintiff over the suit house and directed the defendant to deliver the vacant possession of the suit house to the plaintiff within 2 months from the date of the Judgment assigning the reasons that, the vendor of the plaintiff i.e. Bana @ Banamali Das was the exclusive owner of the suit properties on the basis of the unchallenged R.o.R vide Ext.2 in his name. He has sold the suit house to the plaintiff by executing and registering the S.A. No.110 of 1995 Page 7 of 16 {{ 8 }} sale deed dated 22.08.1969 vide Ext.1 and on the basis of that sale deed vide Ext.1 the plaintiff is the owner over the suit house and she (plaintiff) had inducted the defendant in the suit house as a monthly tenant. But, the defendant has illegally stayed in the suit house without paying the rents of the same to the plaintiff. For which, the plaintiff is entitled to get the decree of declaration of her title over the suit house and also she (plaintiff) is entitled to get the decree of recovery of possession of the suit house from the defendant and the defendant should give the vacant possession of the suit house to the plaintiff. 10. On being dissatisfied with the aforesaid judgment and decree dated 29.08.1991 and 19.09.1991 respectively passed by the Trial Court in the suit vide T.S. No.140 of 1988 in favour of the plaintiff and against the defendant, he (defendant) challenged the same by preferring the First Appeal vide T.A. No.40/93(T.A.53/91-GDC) being the appellant against the plaintiff arraying her (plaintiff) as respondent. When, during the pendency of the 1st Appeal vide T.A. No.40/93(T.A.53/91-GDC), the defendant expired, then, in his place his LRs were substituted as appellant in the 1st Appeal vide T.A. No.40/93(T.A.53/91-GDC). 11. After hearing from both the sides, the First Appellate Court set aside the Judgment and Decree dated 29.08.1991 & 19.09.1991 S.A. No.110 of 1995 Page 8 of 16 {{ 9 }} respectively passed by the Trial Court in T.S. No.140 of 1988 in favour of the plaintiff and against the defendant and dismissed the suit of the plaintiff vide T.S. No.140 of 1988 as per its Judgment and Decree dated 04.03.1995 and 20.03.1995 respectively assigning the reasons that, the adoption of Dandasi to Jani family has not been proved. There is no material to show about the partition of the properties between Balaji and his brothers and as Balaji was possessing the suit house in his own title, for which, the title of the suit properties has not passed to Banamali alone even after the death of Ulla and Balaji, therefore, Banamali alone was not the title holder of the suit properties and house thereon. For which, the sale of the suit house made by Bana @ Banamali Das in favour of the plaintiff had not created any interest in favour of the plaintiff in respect of the suit house. The R.o.R. in the suit house in the name of Bana @ Banamali Das vide Ext.2 does not create any title of the suit house in favour of Bana @ Banamali Das, because, R.o.R does not create or extinguish any title and as the R.o.R vide Ext.2 was published on 01.08.1978 much after execution of the sale deed vide Ext.1 in favour of the plaintiff, for which, the R.o.R should not have been prepared in the name of Bana @ Banamali Das, if there had been sale of the suit house to the plaintiff. So, the suit of the plaintiff should not have been decreed by the Trial Court. Therefore, the First Appellate Court set aside the S.A. No.110 of 1995 Page 9 of 16 {{ 10 }} Judgment and Decree of the Trial Court and dismissed the suit vide T.S. No.140 of 1988 of the plaintiff. But, in that Judgment and Decree of the First Appellate Court in T.A. No.40/93(T.A.53/91-GDC), the 1st Appellate Court accepted to the findings of the Trial Court that, the defendant is not the adopted son of Balaji. 12. On being aggrieved with the aforesaid judgment and decree dated 04.03.1995 and 20.03.1995 respectively passed by the 1st appellate Court in T.A. No.40/93(T.A.53/91-GDC) against the plaintiff, she (plaintiff) challenged the same by preferring this 2nd Appeal being the appellant against the legal heirs of the defendant arraying them as respondents. 13. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.- (i) Whether the lower appellate court is correct in his approach while interpreting Exts.2,3,3/a and 3/b in regard to the title of the plaintiff? (ii) Whether the lower appellate court was justified in reversing the findings of the trial court while negativing the plea of adoption advanced by the defendant? 14.
Legal Reasoning
I have already heard from the learned counsels of both the sides. 15. As, the above two formulated substantial questions of law are interlinked having ample nexus with each other as per the judgment and decree passed by the Trial Court and First Appellate Court on the basis of the pleadings and evidence of the parties, then both the formulated S.A. No.110 of 1995 Page 10 of 16 {{ 11 }} substantial questions of law are taken up together analogously for their discussions hereunder: 16. In order to prove the title of the plaintiff over the suit properties, the plaintiff has relied upon the documents i.e. registered sale deed dated 22.08.1969 vide Ext.1 executed by Bana @ Banamali Das in her favour, the certified copy of the R.o.R. of the suit house vide Ext.2 in the name of Bana @ Banamali Das (vendor of the plaintiff), the rent receipts of the suit house vide Ext.3 to 3/b and the advocate notice vide Ext.4 issued by the plaintiff to the defendant. The defendant has claimed his title over the suit properties denying his tenancy under the plaintiff in his letter of reply through his advocate vide Ext.B relied by him (defendant). As per the contents of the Ext.B, he (defendant) has claimed his ownership and possession over the suit house on the sole ground of inheritance & succession after the death of Balaji as his adopted son stating therein that, Balaji was the exclusive owner of the suit house, getting the same through partition with his brothers. So, according to him (defendant), after the death of Balaji Das, the suit house has devolved upon him. For which, he (defendant) is the sole owner of the suit house. It is the concurrent findings of the Trial Court and First Appellate Court through appreciation of oral and documentary evidence of the S.A. No.110 of 1995 Page 11 of 16 {{ 12 }} parties that, the defendant has failed to establish him as the adopted son of Balaji Das. The said concurrent findings on facts by the Trial Court and First Appellate Court against the defendant that, he (defendant) is not the adopted son of Balaji Das has not been challenged/questioned by him (defendant) in this 2nd Appeal either by filing any cross objection or by agitating the same through argument during the course of hearing of this 2nd Appeal filed by the plaintiff. Therefore, the aforesaid unchallenged part of the findings of the Trial Court and First Appellate Court on facts against the defendant through appreciation of oral and documentary evidence of the parties that, the defendant is not the adopted son of Balaji Das has already been reached in its finality, which is binding upon the parties including the defendant. It is the concurrent findings of the Trial Court and First Appellate Court that, the R.o.R of the suit house vide Ext.2 was published on dated 01.08.1978 exclusively in the name of the vendor of the plaintiff i.e. Bana @ Banamli Das. The said R.o.R. in the name of Bana @ Banamali Das has not been varied/altered or set aside through any challenge by anybody including the defendant before any forum. Accordingly, the R.o.R of the suit house exclusively in the name of the S.A. No.110 of 1995 Page 12 of 16 {{ 13 }} vendor of the defendant i.e. in the name of Bana @ Banamali Das as per Ext.2 has remained unchallenged. The authenticity and genuineness of the sale deed executed by Bana @ Banamali Das in respect of the suit house on dated 22.08.1969 vide Ext.1 in favour of the plaintiff for due consideration amount has also been unchallenged (unquestioned). When, the defendant is claiming his title over the suit properties as the adopted son of Balaji Das and when the concurrent findings of the Trial Court and First Appellate Court on facts through appreciation of oral and documentary evidence of the parties that, the defendant is not the adopted son of Balaji Das has already been reached in its finality, then, at this juncture, it cannot be held that, the defendant is the successor of Balaji Das. It is the settled propositions of law that, issues of Civil Matters are to be decided on a balance of probabilities. The standard of proof in civil trial is pre-ponderance of probabilities and the same standard of proof for proving their respective cases through pre-ponderance of probabilities lies equally upon both the sides. On this aspect, the propositions of law has already been clarified in the ratio of the following decision of the Apex Court: S.A. No.110 of 1995 Page 13 of 16 {{ 14 }} (i) 100 (2005) CLT 147 (SC): Sona Bala Bora & Others civil Vs. Jyotindra Bhatacharjee—Suit—Issues of matter—To be decided on a balance of probabilities. (Para No.21) 17. So, as per law, on appreciation of evidence of both the sides by the Court, the case of which side shall become more probable, the case of that side shall be accepted under law. It is very fundamental in law that, burden of proving any entry in the R.o.R as wrong is on person, who seeks rectification. On this aspect, the propositions of law has already been clarified in the ratio of the following decision: (i) (28) A.I.R. 1941 Privy Council 99: Heirs of Prince Mohamed Selim Vs. Attorney General of Palestine—Record in— Rectification—Onus of proving that entry is wrong is on person who seeks rectification. Rights—Entry of Here in this suit at hand, when the unchallenged R.o.R. of the suit house vide Ext.2 stands exclusively in the name of the vendor of the plaintiff i.e. Bana @ Banamali Das and when the sale deed (executed by the recorded owner i.e. Bana @ Banamali Das in favour of the plaintiff i.e. sale deed No.1985 dated 22.08.1969 vide Ext. 1 in respect of the suit house) has remain unchallenged/unquestioned and when the plaintiff has claimed her ownership and title over the suit properties on the basis of purchase of the suit house from the recorded owner i.e. Bana @ Banamali Das through Ext.1 and when the claim of the defendant as the owner of S.A. No.110 of 1995 Page 14 of 16 {{ 15 }} the suit house on the basis of his adoption by Balaji Das has already been discarded by the Trial Court and First Appellate Court, then, at this juncture, on appreciation of evidence of both the sides by applying the principles of preponderance of probabilities for ascertaining the title in the suit properties between the parties, the case of the plaintiff has become more probable/believable/acceptable than the case of the defendant. 18. Therefore, by accepting the findings and observations made by the Trial Court in its Judgment and Decree and discarding the findings and observations made by the First Appellate Court for the reasons assigned above, it is held that, the plaintiff has right, title and interest over the suit properties, but the defendant has no title in the same. 19. When, as per the discussions and observations made above, the Judgment and Decree passed by the Trial Court is sustainable under law, but, whereas the Judgment and Decree passed by the First Appellate Court has become unsustainable under law, then, at this juncture, there is justification under law for making interference with the Judgment and Decree passed by the First Appellate Court through this 2nd Appeal filed by the appellant (plaintiff). 20. Therefore, there is merit in the 2nd Appeal of the appellant (plaintiff). The same must succeed. S.A. No.110 of 1995 Page 15 of 16 {{ 16 }} 21. In result, the second appeal filed by the appellant (plaintiff) is allowed on contest, but without cost. The judgment and decree passed by the First Appellate Court in T.A. No.40/93(T.A.53/91-GDC) is set aside. The judgment and decree passed by the Trial Court in T.S. No.140 of 1988 is confirmed. Orissa High Court, Cuttack. 13.08. 2024//Rati Ranjan Nayak// Senior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 16-Aug-2024 14:37:03 S.A. No.110 of 1995 Page 16 of 16