The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.176 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kartik Chandra Singh …. Appellant -versus- Sunil Chandra Singh (dead) and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Bhaskar Chandra Panda, Advocate. For Respondents - None CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :02.09.2025 :: Date of Judgment :17.09.2025 A.C. Behera, J. This second appeal has been preferred against the partially reversing judgment. 2. The appellant in this 2nd appeal was the defendant No.12 before the Trial Court in the suit vide T.S. No.250 of 1981 and respondent No.12 before the 1st Appellate Court in the 1st Appeal vide T.A. No.61 of 1994- I. The respondent No.1 in this second appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.250 of 1981 and appellant Page 1 of 15 before the 1st Appellate Court in the 1st Appeal vide T.A. No.61 of 1994- I.
Legal Reasoning
The respondent Nos.2 to 11 in this 2nd appeal were the defendant Nos.1 to 9 & 11 before the Trial Court in the suit vide T.S. No.250 of 1981 and respondent Nos.1 to 9 & 11 before the 1st Appellate Court in the 1st Appeal vide T.A. No.61 of 1994-I. 3. The suit of the plaintiff (respondent No.1 in this 2nd appeal) before the Trial Court vide T.S. No.250 of 1981 against the defendants (appellant and respondent Nos.2 to 11 in this 2nd appeal) was a suit for declaration, confirmation of possession and permanent injunction. 4. As per the averments made in the plaint of the plaintiff, the properties described in Schedule ‘Ka’ and ‘Kha’ of the plaint are the suit properties. Schedule ‘Kha’ properties are the part of the Schedule ‘Ka’ properties. The suit properties originally belonged to the grandmother of the plaintiff i.e. Saratmani Dasi. Saratmani Dasi had purchased the same in her name. For which, the suit properties were the purchased properties of Saratmani Dasi. Saratmani Dasi died in the year 1932 leaving behind his son Anil Singh (father of the plaintiff and one daughter Haramani). After the death of Saratmani Dasi, the suit properties left by her devolved upon her son Anil Singh (father of the plaintiff). The father of the plaintiff i.e. Anil Singh sold the suit properties to the plaintiff by executing and registering Page 2 of 15 the sale deed dated 03.09.1971 (Ext.2) for consideration of Rs.1,000/-. For which, the plaintiff is the exclusive owner and in possession over the suit properties. There was/is a well on the ‘Kha’ Schedule suit property, which is the part of ‘Ka’ Schedule suit properties. As such, the plaintiff is the owner of the entire ‘Ka’ Schedule suit property including the ‘Kha’ Schedule well. For which, the well situated on ‘Kha’ Schedule suit property is the personal and private well of the plaintiff. When, the defendant No.3 (elected councilor of Ward No.9 of Balasore Municipality) having his previous enmity with him (plaintiff) falsely claimed that, ‘Kha’ Schedule suit well belong to the Municipality and cut the fence around the well, then he (plaintiff) filed the suit vide T.S. No.250 of 1981 against the defendants including the Balasore Municipality and the villagers of Damadorpur and Manikhamb praying for declaration of his title over ‘Ka’ Schedule suit properties including ‘Kha’ Schedule well and for confirmation of his possession thereon, in alternative recovery possession, if he (plaintiff) found to be dispossessed from the suit properties during the pendency of the suit by the defendants and to injunct the defendants permanently from creating any sort of disturbances in his peaceful possession over the properties of both the Schedule, as the villagers of Damodarpur and Manikhamb (defendant No.2) are trying to create disturbances in his peaceful possession over the suit properties. Page 3 of 15 5. Having been noticed from the Trial Court in the suit vide T.S. No.250 of 1981, the defendant No.9 (father of the defendant Nos.12 as well as brother of the father of the plaintiff) filed his written statement denying the above allegations made by the plaintiff in his plaint taking his stands specifically that, his grandmother i.e. Saratmani Dasi had purchased the suit properties through two registered sale deeds and the said Saratmani Dasi died leaving behind his daughter Haramani @ Harubala. After the death of the Saratmani Dasi, the suit properties left by her devolved upon his daughter Haramani @ Harubala. The said Haramani @ Harubala had gifted the suit properties to his son i.e. defendant No.12 (Kartik Singh) on dated 06.08.1983 (Ext.B) through a registered gift deed and had delivered possession thereof. For which, defendant No.12 is the exclusive owner over the suit properties, in which, the plaintiff has no interest and possession. The ‘Kha’ Schedule suit well stands on a the portion of C.S. Plot No.32 measuring an area 12' x 12', which land was given to Balasore Municipality (defendant No.1) and Balasore Municipality (defendant No.1) had dug the said ‘Kha’ Schedule well on the part of ‘Ka’ Schedule suit properties by the side of main village road and the said well has been using by general public. For which, the suit of the plaintiff is liable to be dismissed. Page 4 of 15 The defendant No.1 (Balasore Municipality) contested the suit of the plaintiff by filing its written statement taking its stands that, the two villages i.e. Damodarpur and Manikhamb are thickly populated villages. There was no well for the said villagers to get drinking water. For which, on the approach of Balasore Municipality, the father of the plaintiff i.e. Anil Singh by virtue of an agreement, he (Anil Singh) had given Ac.0.003 decimals from the ‘Ka’ Schedule suit properties i.e. ‘Kha’ Schedule property on dated 02.08.1939 to the Balasore Municipality for digging a well on the same for the public use and Balasore Municipality had dug the well on ‘Kha’ Schedule suit property in the year 1939. Even though, Balasore Municipality (defendant No.1) has not purchased ‘Kha’ Schedule suit property, on which ‘Kha’ Schedule well has been dug, but the Balasore Municipality has acquired possessory right and title over the same for its long use. The Balasore Municipality has no claim at all in respect of other land of ‘Ka’ Schedule suit properties except ‘Kha’ Schedule suit property on which well for public use is situated. For which, the claim of the plaintiff that, the ‘Kha’ Schedule well is the private well is false and baseless. Therefore, the suit of the plaintiff in respect of ‘Kha’ Schedule suit property is liable to be dismissed. The defendant Nos.4 to 8 in their written statement supporting the stands taken by the defendant No.1 (Balasore Municipality) stating additionally that, Balasore Municipality (defendant No.1) is maintaining Page 5 of 15 the well on ‘Kha’ Schedule suit property since the time of digging and they have no claim in respect of other part of ‘Ka’ Schedule property except ‘Kha’ Schedule property on which, Balasore Municipality has dug the well. Therefore, the suit of the plaintiff is not maintainable. Defendant No.12 (son of defendant No.9) filed his written statement along with a counter claim taking his stands that, Saratmani Dasi had purchased ‘Ka’ Schedule properties. As such, Saratmani Dasi was the exclusive owner of the same. After the death of Saratmani Dasi, her daughter Haramani succeeded the suit properties left by her (Saratmani Dasi). As, Haramani was his parental grandmother, for which, out of love and affection, Haramani gifted the suit properties to him through a registered gift deed dated 06.08.1983 (Ext.B) and since then, he (defendant No.12) had/has been possessing the same being the exclusive owner thereof. The father of the plaintiff i.e. Anil Singh had no right, title or interest over the suit properties. Likewise, the plaintiff has no right, title and interest in the suit properties. During major settlement operation, inspite of his objection, the suit properties have been erroneously recorded in the name of the plaintiff alone, for which, the same is liable to be corrected. Therefore, he (defendant No.12) filed his counter claim along with his written statement praying for a declaration that, the major settlement record of right in respect of the suit properties described in Schedule ‘Ka’ in the name of Page 6 of 15 the plaintiff is wrong and the same is to be corrected to his name. So, the suit of the plaintiff is to be dismissed and his counter claim is to be allowed. Against the above counter claim of the defendant No.12, the plaintiff filed his written statement denying the allegations alleged by the defendant No.12 in his counter claim taking his stands that, Saratmani Dasi had two daughters, namely, Hemalata and Haramani and only son Anil Singh (father of the plaintiff). On the death of Saratmani Dasi in the year 1932, as per law, the suit properties left by Saratmani Dasi devolved upon the father of the plaintiff i.e. Anil Singh alone and the father of the plaintiff possessed the same being the exclusive owner thereof. He (father of the plaintiff) sold the suit properties to him (plaintiff through registered sale deed dated 03.09.1971 {Ext.2}). For which, he (plaintiff) is the exclusive owner of the suit properties and he (plaintiff) had/has been possessing the same. The R.o.R. of the suit properties in the Hal settlement has been prepared correctly in his name. When the father of the defendant No.12 failed in his attempt to get the suit properties, then he had managed to create the so called gift deed dated 03.09.1971 through Haramani in respect of the suit properties in favour of the defendant No.12, though Haramani had no interest in the suit properties, for no other reason, but in order to claim the suit properties illegally. Therefore, Page 7 of 15 the defendant No.12 has no interest over the suit properties. For which, the counter claim of the defendant No.12 is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 9 (nine) numbers of issues were framed by the Trial Court in the suit vide T.S. No.250 of 1981 and the said issues are:- ISSUES (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) Has the plaintiff any cause of action? Is the disputed land self acquired land of Saratmani and did the same devolve after her death on her daughter Haramani? Is the gift deed in favour of the defendant executed by Haramani valid? Is the Major Settlement entry is incorrect? Is the defendant in possession of the disputed land? Any other relief the plaintiff is entitled to? Is the suit well belong to Municipality and is being used by the public i.e. villagers of Manikhamb and Damodarpur? Is the plaintiff entitled to get the suit property by virtue of the sale deed executed by his father and for permanent injunction? Is the suit maintainable in its present form? 7. In order to substantiate the aforesaid relief(s) sought for by the plaintiff in the suit vide T.S. No.250 of 1981 against the defendants, the plaintiff examined four witnesses from his side including him as P.W.1 and exhibited series of documents on his behalf vide Exts.1 to 14. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined seven witnesses on their behalf including defendant Nos.5 and 7 as D.Ws.1 & 2 and relied upon series of documents from their side vide Exts.A to J. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered Page 8 of 15 issue Nos.1 to 5, 8 & 9 in favour of the plaintiff and answered issue Nos.6 & 7 against the plaintiff and basing upon the findings and observations made by the Trial Court in the issues, the Trial Court decreed the suit of the plaintiff vide T.S. No.250 of 1981 of the plaintiff in part on contest against the defendants as per its judgment and decree dated 30.08.1994 and 12.09.1994 respectively and declared that, the defendants are entitled to use the water of the suit well situated on ‘Kha’ Schedule suit property. Except plaintiff, defendant Nos.9 & 12, other defendants are not entitled to use rest portion of the ‘Ka’ Schedule suit properties except the well on ‘Kha’ Schedule suit properties and restrained all the defendants except defendant Nos.9 & 12 permanently from entering into the other portion of of ‘Ka’ Schedule suit property except the ‘Kha’ Schedule well and dismissed the counter claim of the defendant No.12 on contest assigning the reasons that, “the suit well belong to Balasore Municipality (defendant No.1) and the same has been using by the public i.e. villagers of Damadorpur and Manikhamb and the use of the same by the villagers of the Manikhamb and Damadorpur cannot be prohibited. The ‘Ka’ Schedule suit properties were the ancestral properties of the father of the plaintiff i.e. Anil Singh. After the death of Anil Singh, the suit properties devolved upon his two sons i.e. plaintiff and defendant No.9. For which, defendant No.9 has half share in the suit properties and the defendant No.12 being the son of defendant No.9, he has also interest therein. Therefore, the plaintiff is not entitled to get the declaration Page 9 of 15 that, he is the exclusive owner over the ‘Ka’ Schedule suit properties and he (plaintiff) also cannot injunct the defendant Nos.9 & 12 from using the ‘Ka’ Schedule suit properties, as they (defendant Nos.9 & 12) are the co- owners of the ‘Ka’ Schedule suit properties with him (plaintiff). Therefore, the relief i.e. declaration of title over the ‘Ka’ Schedule suit properties prayed for by the plaintiff was refused and relief i.e. permanent injunction against the defendant Nos.9 & 12 in respect of the suit properties was also refused and likewise the claim of the defendant No.12 in his counter claim that, he is the exclusive owner of the suit properties was refused and the preparation of M.S. R.o.R. of the suit properties exclusively in the name of the plaintiff is erroneous. Because, the same should have been prepared jointly in the name of the plaintiff and defendant No.9.” 9. On being dissatisfied with the aforesaid judgment and decree passed by the learned Trial Court, the plaintiff challenged the same preferring the 1st appeal vide T.A. No.61 of 1994-I being the appellant against the defendants arraying them (defendants) as respondents. In that 1st Appeal vide T.A. No.61 of 1994-I, defendant No.12 filed cross-objection praying for recording of the suit land exclusively in his name. 10. After hearing from both the sides, the learned First Appellate Court allowed that First Appeal of the plaintiff in part modifying the judgment and decree passed by the learned Trial Court as per its judgment and decree dated 06.02.2002 and 22.02.2002 respectively and declared the Page 10 of 15 right, title and interest of the plaintiff over the entire ‘Ka’ schedule suit properties and confirmed his possession thereon except Schedule ‘Kha’ Schedule well clarifying that, the public at large including defendant Nos.9 & 12 shall use the water of ‘Kha’ Schedule well and restrained the defendants permanently from creating any sort of disturbance in appellant’s possession over ‘Ka’ Schedule land except ‘Kha’ Schedule well dug over it and dismissed the cross objection of the defendant No.12 on contest assigning the reasons that, “Ka’ Schedule suit properties originally belonged to Saratmani Dasi. Saratmani Dasi died in the year 1932 leaving behind his son Anil Singh and daughter Haramani. For which, the suit properties left by Saratmani Dasi devolved upon his son i.e. Anil Singh (father of the plaintiff), but not upon Haramani, as Haramani was a pre-Act daughter and she (Haramani) had no property right in the year 1932 i.e. by the time of the death of her mother Saratmani Dasi. For which, the father of the plaintiff i.e. Anil Singh being the exclusive owner of the suit properties, he had sold the same to the plaintiff in the year 1971 through the sale deed vide Ext.2. Therefore, the suit properties have become the property of the plaintiff exclusively and when the daughter of Saratmani Dasi i.e. Haramani had no interest in the suit properties, for which, the gift deed vide Ext.B executed by her (Haramani) in respect of the suit properties in favour of the defendant No.9 shall not transfer any interest of the suit properties in favour of the defendant No.12. Therefore, the defendant No.12 is not the owner of the suit properties. It is established that, the ‘Kha’ Schedule well was dug by Balasore Municipality (O.P. No.1) in the year 1939 over a portion of ‘Ka’ Schedule suit properties i.e. over ‘Kha’ Page 11 of 15 Schedule suit property for the use of public. Therefore, the public as well as the plaintiff and defendant Nos.9 & 12 cannot be restrained from using the water of the ‘Kha’ Schedule well.” 11. On being aggrieved with the aforesaid judgment and decree dated 06.02.2002 and 22.02.2002 respectively passed by the learned First Appellate Court in T.A. No.61 of 1994-I, the defendant No.12 challenged the same preferring this 2nd appeal being the appellant against the plaintiff arraying him (plaintiff) as respondent No.1 and arraying other defendants as respondent Nos.2 to 11. 12. This Second Appeal was admitted on formulation of the following substantial question of law i.e.:- “Whether the finding of the Court below that, the property left by Saratmani came to the hands of her son Anil Singh (father of the plaintiff) alone after the death of Saratmani Dasi prior to the year 1956 is in contravention of Article 147 of the Hindu Law?” 13. I have already heard only from the learned counsel for the appellant (defendant No.12), as none had appeared from the side of the respondents for participating in the hearing of this 2nd appeal. 14. In respect of the above formulated substantial question of law, the propositions of law has already been clarified in the ratio of the following decisions:- (i) In a case between State of Gujarat Vrs. Maliben Nathubhai (D) through LRs & Ors. reported in 2017 (I) CLR (SC) 710 that, original owner of the property dying intestate in 1947. Plaintiffs Page 12 of 15 claiming share in the property through their mother, widow of the original owner. Suit not maintainable (Paras 14 & 15). (ii) In a case between M. Sivadasan (Dead) through LRs and others Vrs. A. Soudamini (Dead) through LRs and others reported in 2024 (1) Civil Law Judgments (SC) 314 that, suit for partition filed by daughters of owner ‘O’ of property, who died in the year 1942. After his death, the property devolved on his male successor i.e. son ‘S’. Family settlement deed dated 12.03.1938. Relied upon both the parties showing that, land was specifically allotted to ‘O’ and his Son ‘S’. As such, the widow of ‘O’ i.e. mother of ‘S’ has no right over it, as ‘O’ had expired prior to the coming into force of the Hindu Succession Act, 1956. (iii) In a case between Chinthamani Ammal Vrs. Nandagopal Gounder & another reported in 2007 (I) CLR 838 (SC) that, Appellant’s father ‘K’ and respondent No.1 were brothers, members of a joint family. ‘K’ died in the year 1943. Mother of appellant left the family in or about 1945 and married another person. Appellant (daughter) after her marriage claimed a share in the property. Held, as ‘K’ died in the year 1943 as a member of undivided joint family and thus, appellant had derived no right, title and interest in the said property by Succession or otherwise. (iv) In a case between Jose Vrs. Ramakrishnan Nair and others reported in AIR 2004 (Kerala) 16 that, the expression "female Hindu" which occurs in Section 14(1) of the Hindu Succession Act, 1956 also would take in "daughter" also. (Para 9) Applying the propositions of law enunciated in the aforesaid decisions to this suit/appeal at hand, it is held that, when it is the undisputed case of the parties that, the suit properties were the properties of a widow, namely, Saratmani Dasi and undisputedly, the said Saratmani Dasi died prior to 1956 i.e. prior to the coming into force of the Hindu Succession Act, 1956 and when Saratmani Dasi died leaving behind his son Anil Singh (father of the plaintiff) and daughter Haramani and when Page 13 of 15 by the time of the death of Saratmani Dasi, her daughter Haramani had no right to property and when as per law as discussed above, after the death of Saratmani Dasi, the suit properties left by her (Saratmani Dasi) devolved upon her son Anil Singh (father of the plaintiff) alone and when Anil Singh being the exclusive owner of the suit properties sold the same to his son i.e. plaintiff in the year 1971 through R.S.D. dated 03.09.1971 (Ext.2), then, as per law, the plaintiff is the exclusive owner of the suit properties. For which, the recording of the suit properties in the M.S. R.o.R. exclusively in the name of the plaintiff cannot be held as erroneous. 15. When it is held that, Haramani (daughter of Saratmani Dasi) had no interest in the suit properties, for which, the gift deed dated 06.08.1983 (Ext.B) executed by Haramani in respect of the suit properties in favour of the defendant No.12 had not transferred any interest in respect of the suit properties in favour of the defendant No.12. On this aspect, the propositions of law has already been clarified in the ratio of the following decision:- In a case between Jhatu Swain (since dead through his LRs) Vrs. Jogi Swain and another reported in 2025 (1) CCC 26 (Orissa) that, donee cannot get better title through gift, than his/her donor. 16. As per the discussions and observations made above, when it is held that, the plaintiff is the exclusive owner of the ‘Ka’ Schedule suit Page 14 of 15 properties, then at this juncture, the question of interfering with the findings and observations made by the learned 1st Appellate Court in its judgment and decree through this 2nd appeal filed by the appellant (defendant No.12) does not arise. 17. Therefore, there is no merit in the 2nd appeal filed by the appellant (defendant No.12). The same must fail. 18. In result, the second appeal filed by the appellant (defendant No.12) is dismissed on merit, but without cost. The judgment and decree passed by the First Appellate Court in T.A. No.61 of 1994-I modifying the judgment and decree passed by the Trial Court is confirmed. Orissa High Court, Cuttack. 17.09.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2025 17:55:17 Page 15 of 15