The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.12 of 1994 Mst. Prema Bhoi & others Appellants Mr. G. Mukherjee, Senior Advocate …. -Versus- Trinath Bhoi & others Respondents Mr. Ramakanta Mohanty, Senior Advocate …. And S.A. No.41 of 1994 Mitru Patra …. Appellant Mr. N.K. Sahu, Advocate -Versus- Trinath Bhoi & others Respondents Mr. Ramakanta Mohanty, Senior Advocate Mr. G. Mukherjee, Senior Advocate …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:20.12.2023 1. Since both the appeals arise out of a common cause of action inter se parties stand disposed of analogously. 2. S.A. No.12 of 1994: Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the behest of the plaintiffs S.A. Nos.12 &41 of 1994 Page 1 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others challenging the correctness of the impugned judgment promulgated in Title Appeal No.67 of 1977 by the learned District Judge, Balangir-Sonepur, Balangir to the extent, whereby, the decree in Title Suit No.20/25 of 1971-73 was partially modified in respect of Schedule ‘D’ property. 3. S.A. No.41 of 1994: So far as the present appeal is concerned, it
Legal Reasoning
is at the behest of defendant No.16 assailing the decision of the learned courts below with respect to Schedule ‘C’ property. 4. The plaintiffs instituted the suit in Title Suit No.20/25 of 1971- 73 for declaration of right and title over Schedule ‘C’ and ‘D’ properties morefully described in the plaint and for perpetual injunction restraining the defendants from entering upon the said lands or in the alternative for partition of Schedule ‘A’, ‘B’ & ‘C’ properties into three equal shares and to allot two sets of shares in their favour. The suit was contested and finally decreed vis-à- vis title of the plaintiffs declared in respect of Schedule ‘C’ & ‘D’ properties. The decision in the suit was challenged by defendant Nos.1 to 4 in Title Appeal No.67 of 1977, which as earlier mentioned, was allowed in part confining the title of the plaintiffs only in respect of ‘C’ schedule properties. Being aggrieved of, the plaintiffs filed the appeal in S.A. No.12 of 1994, whereas, defendant No.16 approached this Court in S.A. No.41 of 1994. The contention of the plaintiffs is that learned Lower Appellate Court was wrong in excluding half of ‘D’ schedule properties though confirmed the title with respect to ‘C’ schedule lands. As to defendant No.16, the challenges by him is with respect to Schedule ‘C’ properties said to have been sold and acquired by the predecessor-in-interest of the plaintiffs which has been confirmed in the suit with no appeal filed against it. So to say, the successor-in-interest of defendant No.16 has knocked the doors of this Court in S.A. No.41 of 1994 without any appeal being filed S.A. Nos.12 & 41 of 1994 Page 2 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others vis-à-vis Schedule ‘C’ properties. The moot question is, whether, the learned Lower Appellate Court was justified to exclude half of ‘D’ schedule properties claimed by the plaintiffs and confirmed title over ‘C’ schedule properties alleged to have been sold by defendant No.16 as the daughter of common ancestor having succeeded to the said interest through Kunja after death of the latter’s wife, namely, Bati Bhoiani, as both died issueless. 5. This Court by order dated 17th November, 2022 admitted the following substantial questions of law for determination, such as: (i)Whether the learned Lower Appellate Court was justified in reversing the finding of the fact returned by learned Trial court without taking into account the unchallenged evidence of P.W.2 in so far as Schedule ‘D’ properties are concerned? (ii) Whether the learned Lower Appellate Court erred by considering the presumption of correctness attached to the Record of Rights although the same is a rebuttable one? (iii) Whether the courts below rightly held the sale deed i.e. Ext.1 executed by defendant No.16 to be valid ignoring the fact that the same was at the instance of an illiterate pardanashin lady, when the burden of proof was lying with the plaintiffs having not been duly discharged?
Legal Reasoning
6. Heard learned counsel for the respective parties. 7. Mr. Mukherjee, learned Senior Advocate appearing for the plaintiffs submits that one Arjun Bhoi was the common ancestor succeeded by three sons, namely, Ani, Bansi and Kunja and daughter, namely, Bati Patrani and during partition, schedule ‘B’ and D (half) properties were allotted to Ani; half of Schedule ‘D’ to Bansi succeeded by the plaintiffs along with Schedule ‘A’ and ‘C’ properties said to have been purchased from defendant S.A. Nos.12 & 41 of 1994 Page 3 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others No.16; Schedule ‘C’ properties in favour of Kunja later sold to the predecessor-in-interest of the plaintiffs; and Schedule ‘C’ property succeeded by defendant No.16 being the share of Kunja, who died leaving behind wife, namely, Bati Bhoiani and when both died issueless. It is contended that amicable partition is admitted which is not in dispute though there has been no document in proof of the same but revealed from the notes of possession with respective shares mentioned therein. The dispute is over schedule ‘D’ properties and according to Mr. Mukherjee, the same has been wrongly mentioned in note of possession in favour of Ani. As regards, Schedule ‘C’ property, the claim is that Bati Patrani succeeded to it from Kunja, who died issueless and the same was transferred to Joni, namely, son of Bansi and hence, the plaintiffs being the successors of Jogi are entitled to both Schedule ‘C’ and ‘D’ properties apart from Schedule ‘A’ land which was allotted to Jogi at the time of separation. It is further contended that the shares allotted to the respective parties are admitted by learned Trial court but without any basis and when it was no one’s case, learned lower appellate court with an opinion that it was possible that a share is quantitatively less allotted to Ani declined to declared title over half of the same in favour of the plaintiffs and confirmed it to be the exclusive interest of defendant Nos.1 to 15, who are the successors-in-interest of Ani and the same is not tenable in law and while advancing such an argument, he refers to a decision of Bachhaj Nahar Vrs. Nilima Mandal and others AIR 2009 SC 1103. Such a contention is also advanced by referring to the oral evidence vis-à-vis Schedule ‘D’ properties known as ‘Talaimunda Bahal’ and in particular, the facts elicited during cross-examination of D.W.2 Furthermore, it is contended that learned Lower Appellate Court failed to take cognizance of the general principles laid down in the appreciation of oral evidence in conflict laid down and discussed by the Apex Court in S.A. Nos.12 & 41 of 1994 Page 4 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others Madhusudan Das Vrs. Narayanibai (Deceased) by LRs and others AIR 1983 SC 114 being oblivious of the fact that learned Trial court had the advantage to observe the witnesses while receiving evidence. As regards, the Schedule ‘C’ property, Mr. Mukherjee submits that execution of the sale deed by defendant No.16 is well proved and so held by both the learned courts below and in so far as the appeal in S.A. No.41 of 1994 is concerned, the same is not maintainable as such decision in the suit was not challenged in appeal. Hence, as per Mr. Mukherjee, learned Senior Advocate for the plaintiffs, learned Lower Appellate Court fell into serious error in excluding in Schedule ‘D’ (half) properties which is to be restored with confirmation of title. Mr. Mohanty, learned Senior Advocate appearing for defendant Nos.1 to 15 would submit that learned Lower Appellate Court committed no error to declare title with respect to Schedule ‘D’ properties entirely in favour of the defendants as the successors of Ani which has been with reference to the note of possession and hence, it should not be disturbed. It is contended that though there has been partition among the members of the family of common ancestor, namely, Arjun Bhoi, considering the reason assigned by learned Lower Appellate Court as to the qualitativeness of the lands and the fact that it was exclusively recorded in the name of Ani, such decision should not be interfered with. Mr. Sahu, learned counsel for defendant No.16 (successors of defendant No.16 as appellant in S.A. No.41 of 1994) submits that both the learned courts below failed to appreciate the fact that defendant No.16 was an illiterate and pardanashin woman and the burden of proof which must be discharged by the plaintiffs having not been duly performed, wrongly declared interest over and in respect of Schedule ‘C’ properties in favour of plaintiffs, who are successors of Jogi from the branch of Bansi. With the above contentions, the interest of the plaintiffs over Schedule ‘D’ properties is questioned and also S.A. Nos.12 & 41 of 1994 Page 5 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others with respect to schedule ‘C’ lands disputed by the successor of defendant No.16. The rival claims of the parties confined to the substantial question of law are to be examined and duly considered. 8. The status of Jogi as the legitimate son was questioned by the defendants. Likewise, the claim of defendant No.16 and the daughter of Arjun Bhoi was also challenged before learned Trial court. In so far as Jogi is concerned, who succeeds the interest of Bansi, it was claimed that he has born out of the wedlock but was accommodated in the family so as to avoid humiliation. As to defendant No.16, it has been claimed by the plaintiffs that he was not the daughter of Arjun Bhoi, the common ancestor. All such questions regarding status of Jogi, namely, the predecessor-in- interest of plaintiffs and defendant No.16 were duly examined by learned Trial court and it was held that both belong to the family of Arjun Bhoi in absence of any specific evidence to the contrary. The said decision has not been challenged anymore which was also confirmed in appeal by learned Lower Appellate Court, hence, therefore, the same not to be reopened. 9. With respect to Schedule ‘C’ properties and acquiring interest therein by the plaintiffs through Jogi was one of issues framed by learned Trial court to find out and ascertain, whether, the execution of the sale deed was valid without any influence exerted on defendant No.16. The said issue was considered by learned Trial court with reference to oral and documentary evidence and considering the same which admittedly received in absence of defendant No.16 since dead, it was concluded that the execution was without any undue influence and taking advantage of the old age of the executant. On proof of consideration money being paid and possession delivered in respect of Schedule ‘C’ lands, it was held that Jogi acquired interest over the S.A. Nos.12 & 41 of 1994 Page 6 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others same having been transferred by defendant No.16. The decision on Schedule ‘C’ properties was not challenged before learned Lower Appellate Court instead it is being questioned before this Court in S.A. No.41 of 1994 by the successor of said defendant. In support of such execution of the sale deed dated 2nd November, 1970 the deed itself was marked as Ext.1 with examination of the scribe as P.W.3, according to whom, he read over and explained contents of the document to defendant No.16 who thereafter, put her LTI on each pages of the deed in his immediate presence. It is further deposed by P.W.3 that defendant No.16 had provided the plot details and other particulars about the lands which were incorporated in the deed for cross-examination of P.W.3 with further details on the execution of Ext.1 were elicited. 10. Mr. Sahu, learned counsel for the appellant (S.A. No.41 of 1994) would submit that though the genuineness of the transaction in respect of schedule ‘C’ properties was challenged but the learned Trial court unnecessarily shifted the burden unto defendant No.16 without keeping in view the settled principles of law and while claiming so, he refers to a decision of the Apex Court in the case of Mst. Kharbuja Kuer Vrs. Jangbahadur Rai and others AIR 1963 SC 1203. On the other hand, it has been challenged on the ground that there has been no undue influence or mischief committed while obtaining the sale deed from defendant No.16. Admittedly, defendant No.16 though examined as D.W.1, he does not have any direct knowledge regarding the alleged transaction. As per D.W.1, he had learnt from his mother that she had been taken to Bolangir by late Jogi and Birakishore Bhoi and signature was taken on a paper and was made to stay at Sulei for some days. D.W.1 also claimed that he served a notice on Jogi and his wife to cancel the sale deed, however, there is no such evidence on record in support of such claim. As revealed S.A. Nos.12 & 41 of 1994 Page 7 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others from record, Bati Patrani executed Ext.1 but there has been no evidence to show that she was in a free state of mind. In Mst. Kharbjuja Kuer (supra), the Apex Court held that in case of a Pardanashin lady, the law throws round her a special cloak of protection and in such a case, where she has been a party to a transaction under challenge, burden of proofs shall rest on the person, who relies on it and not with the other person, who questions it and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed but was explained to and was really understood by the executor. It is further observed therein that the court must be satisfied that a deed by such person of disability was not managed from her under duress but arose from free and independent will without any influence. The Court is well aware of the above settled legal position regarding the responsibility for the party relying upon any such transaction by an illiterate and pardanashin women. In so far as the case at hand is concerned, evidence was received by the learned Trial court on the alleged transaction with the scribe of Ext.1 examined as P.W.3. The manner of execution was described by P.W.3, according to whom, at the time of execution of Ext.1, he was informed by the executant that she was in need of money and hence, sold the lands. The deed was executed on 2nd November, 1970 and immediately thereafter, the suit was instituted. Admittedly, the executant was an illiterate lady but the parties are related to each other. The entire of schedule ‘C’ lands consist of Ac.14.80 decimal succeeded by defendant No.16 which was sold in one transaction for a consideration money of Rs.5000/-. Though P.W.3 claimed about execution of sale deed but there is no specific evidence on record to show as to what was the dire need for the executant to sale away such a huge extent of land. Mere examination of a scribe would not serve the purpose especially when the burden of proof heavily lies on the S.A. Nos.12 & 41 of 1994 Page 8 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others other side, namely, plaintiffs. An old lady, who is illiterate, is most likely to be influenced by her relations and in the present case, the evidence is not elaborate and inspiring enough to show and satisfy the need for execution of Ext.1 and circumstances confronted by Bati Patrani leading to the selling of such large extent of land at one go. That apart, the executant appears to have had no independent advice as made to suggest from the evidence on record. The settled legal position discussed hereinabove demands a strong proof of execution from the side of the party relying upon a deed executed by an old illiterate and pardanashin lady. In the instant case, the Court does not find evidence on record to be worthy and safe enough to reach at a conclusion that it was under normal circumstances that the sale deed was executed without the executor being under any undue influence or duress. In other words, the Court is of the considered view that the learned courts below completely lost sight of the aforesaid aspect of law while accepting Ext.1 to be a validly executed sale deed. 11. Mr. Mukherjee leaned Senior Advocate for the plaintiffs raised an objection as to be maintainability of S.A. No.41 of 1994 with respect to schedule ‘C’ properties on the premise that the decision of learned Trial court was not challenged in appeal. Mr. Sahu, learned counsel for defendant No.16 would submit that as substantial question of law is involved, notwithstanding no appeal was filed against the decree in the suit, the second appeal is maintainable. Since partition is the alternate relief sought for in the suit, which includes schedule ‘C’ properties, the Court does not find any reason not to entertain the second appeal even though defendant No.16 chose not to approach learned Lower Appellate Court. Hence, therefore, the Court with due respect S.A. Nos.12 & 41 of 1994 Page 9 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others fails to accept the contention of Mr. Mukherjee, leaned Senior Advocate on the preliminary objection raised. 12. With respect to Schedule ‘D’ properties, no doubt there has been no direct evidence on partition but it has been admitted by the parties and the fact that note of possession in respect thereof stands exclusively in favour of Ani which has been challenged by the plaintiffs, who claims for half of the share therein along with Schedule ‘A’ & ‘C’ properties. Learned Lower Appellate Court modified the decree and confirmed title over schedule ‘D’ properties entirely in favour of Ani considering the RoR with note of possession in support of him. There is no denial to the fact that Schedule ‘D’ lands are shown to be in exclusive possession of Ani and successors, namely, defendant Nos.1 to 15. The circumstances under which the notes of possession stood recorded vis-à-vis schedule ‘D’ properties are not revealed from the record. The evidence with regard to such exclusive interest in respect of Schedule ‘D’ properties being possessed by all allottees is not disclosed. Admittedly, in case of partition, the properties would be succeeded by Ani and Bansi since Kunja, the other son of Arjun Bhoi died issueless whose interest in Schedule ‘C’ properties was succeeded by defendant No.16. The contention is that Schedule ‘D’ properties are to be divided in two equal shares and cannot exclusively be settled with Ani, the predecessor-in-interest of defendant Nos.1 to 15 which is disputed on the ground and with reference to the note of possession in RoR. As previously stated, no evidence is forthcoming to show that there was any specific reason to record the possession vis-à-vis Schedule ‘D’ properties in favour of Ani. It is also admitted fact that the share of Ani is unequal and extent of land allotted to him is also much higher than others. The learned Lower Appellate Court was of the opinion that quantum of lands fell into the shares of Ani, Bansi S.A. Nos.12 & 41 of 1994 Page 10 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others and Kunja are to be examined qualitatively. However, the Court is of the considered view that there is no evidence on record either to show that larger extent of land was allotted to Ani since its quality or yield to be poor. It is not supported by any evidence or material on record to justify the reason behind allotting a higher share to Ani. The decision of learned Lower Appellate Court therefore does not receive support by any evidence led by and from the side of defendant Nos.1 to 15. As rightly pointed out by Mr. Mukherjee, learned Senior Advocate for the plaintiffs that learned Lower Appellate Court made out a third case which was no one’s and committed an error which is sought to be justified referring to the decision in Bachhaj Nahar (supra). It is settled law that a third case cannot be made out when neither parties put forth for it. So therefore, the conclusion of the Court is that the learned Lower Appellate Court in absence of any evidence with regard to qualitativeness of the lands could not have reached at a decision that the higher and unequal share of Ani to be justified, though, there is a note of possession with respect to Schedule ‘D’ properties in his favour and the same shall have to be shared and accordingly allotted. Consequently, the substantial questions of law stand answered. 13. Hence, it is ordered.
Decision
14. In the result, the appeal in S.A. No.12 of 1994 stands allowed against the contesting respondents. As a necessary corollary, the impugned judgment in Title Appeal No.67 of 1977 to the extent and with reference to Schedule ‘D’ properties stands set aside with the modification of the decree in Title Suit No.20/25 of 1971-73 vis-à-vis shares determined in respect thereof. The other appeal in S.A. No.41 of 1994, for the reasons discussed hereinabove, with respect to Schedule ‘C, properties, the same stands allowed thereby setting aside the findings and decision of learned courts S.A. Nos.12 & 41 of 1994 Page 11 of 12 Mst. Prema Bhoi & others Vrs. Trinath Bhoi & others below with the conclusion against the validity of Ext.1. In the circumstances, the parties are directed to bear their respective costs. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 22-Dec-2023 18:06:56 S.A. Nos.12 & 41 of 1994 Page 12 of 12