The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.211 of 1987 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Karuna Mahakula …. Appellant -versus- Bancha Mahakula (since dead) & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Upendra Kumar Samal, Advocate. For Respondents - Ms. A.K. Dei, Advocate CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :09.01.2024:: Date of Judgment :19.02.2024 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.27 of 1981-I and he was the respondent before the 1st Appellate Court in the 1st Appeal vide T.A. No.10 of 1985- I. The respondents of this Second Appeal were the defendants before the Trial Court in the suit vide T.S. No.27 of 1981-I and they were the SA No.211 of 1987 Page 1 of 14 {{ 2 }}
Legal Reasoning
appellants before the 1st Appellate Court in the First Appeal vide T.A. No.10 of 1985-I. 3. The suit of the plaintiff (appellant in this 2nd Appeal) vide T.S. No.27 of 1981-I was a suit for partition and declaration. 4. The case of the plaintiff before the trial court in the suit vide T.S. No.27 of 1981-I as per the averments made in his plaint was that, the plaintiff and defendants are Hindus and they are guided and governed by the Mitakshara School of Hindu Law as prevalent in Orissa. According to the plaintiff, Butia Mahakul was his father. The said Butia Mahakul had two wives namely, Tavi and Duti. He (plaintiff) is the son of the second wife of Butia. The first wife of Butia i.e. Tavi died leaving behind her only son i.e. Nabaghana. That Nabaghana died leaving behind his wife Sulochana (defendant No.3) and one son i.e. Banchha (defendant No.1) and one daughter i.e. Jasoda (defendant No.2). The other defendants i.e. defendant Nos.4 to 6 are the purchasers of the suit properties from the defendant Nos.1 to 3. The suit properties were the properties of Butia Mahakul (father of the plaintiff). On the death of Butia Mahakul, the suit properties left by him (Butia) devolved upon plaintiff and Nabaghana. After the death of Butial Mahakul, the suit properties were recorded in the name of his two SA No.211 of 1987 Page 2 of 14 {{ 3 }} sons i.e. the plaintiff and Nabaghana along with the mother of plaintiff i.e. Duti jointly in the Hal Settlement R.o.R vide Khata No.168 described in Schedule-A of the plaint. When plaintiff wanted to possess his half share from the suit properties separately, then Nabaghana gave him approximately Ac.2.30 Decimals of land out of the suit properties i.e. out of Ac.11.81 Decimals by writing the same in a paper on dated 23.04.1978 to cultivate, but the suit properties were not partitioned between them through metes and bounds partition. As such, the suit properties were the joint and undivided properties of plaintiff and Nabaghana. When Nabaghana died leaving behind the defendant Nos.1 to 3 as his successors, then, the defendant Nos.1 to 3 succeeded to the half share of Nabaghana in the suit properties and accordingly, the defendant Nos.1 to 3 became the joint owners of the suit properties with the plaintiff. But, the defendant Nos.1 and 2 alienated 2.27 decimals of land from the joint and undivided Schedule A suit properties to defendant Nos.4 to 6 by executing and registering a sale deed on dated 27.03.1981. When the defendant Nos.1 and 2 alienated Ac.2.27 decimals from the suit properties to the defendant Nos.4 to 6 on 27.03.1981, then, the plaintiff approached the defendant Nos.1 to 3 for metes and bounds partition of his half share from the joint undivided suit properties, to which, they SA No.211 of 1987 Page 3 of 14 {{ 4 }} (defendant Nos.1 to 3) did not agree, for which, he (plaintiff) filed the suit vide T.S. No.27 of 1981-I against the defendants praying for partition of his half share from the suit properties and to declare the sale deed dated 27.03.1981 executed by the defendant Nos.1 and 2 in favour of the defendant Nos.4 to 6 as void and not binding upon him (plaintiff). The defendants having been noticed from the trial court in T.S. No.27 of 1981-I, challenged the suit of the plaintiff by filing their written statement jointly after taking their stands inter alia therein that: The mother of the plaintiff i.e. Duti had never married Butia Mahakul, because Duti is the wife of Shayama Sundar alias Buti and the plaintiff has born through Shyam Sundar and Duti but not through Butia Mahakul. The plaintiff has managed to record his name in the Hal R.o.R of the suit properties erroneously projecting him as the son of Butia Mahakul by taking settlement authorities into his confidence. Plaintiff has never stayed in the house of the defendant Nos.1 to 3 at any point of time. Plaintiff has also never enjoyed the suit properties at any point of time. Therefore, the plaintiff has no share at all over the suit properties. For which, the suit of the plaintiff is liable to be dismissed against them (defendants) as, the plaintiff has no interest in the suit properties and he (plaintiff) is non-suited. SA No.211 of 1987 Page 4 of 14 {{ 5 }} Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether, 7 numbers of issues were framed by the trail court and the said issues are: Issues 1. Whether the suit is maintainable? 2. Whether there is any cause of action for the suit? 3. Whether the suit is bad for non-joinder and mis-joinder of parties? 4. Whether the plaintiff is the son of Shyamasundar alias Buti Mahakur or he is the son of Butia Mahakul? 5. Whether the plaintiff was ever in possession of the suit land and whether he has any interest in the suit land? 6. Whether the joint recording of the plaintiff and defendant in respect of Hal Khata No.168 is correct? 7. To what relief or reliefs the plaintiff is entitled? In order to substantiate the aforesaid reliefs sought for by the plaintiff in his plaintiff against the defendants, he (plaintiff) examined 5 numbers of witnesses from his side including him as P.W.1 and relied upon series of documents on his behalf vide Exts.1 to 4. But, on the contrary, in order to defeat/nullify the suit of the plaintiff, they (defendants) also examined 5 numbers of witnesses on their behalf including the defendant No.1 as D.W.1 and relied upon 3 documents vide Exts.A to C from their side. 5. 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 defendants and Page 5 of 14 SA No.211 of 1987 {{ 6 }} decreed the suit of the plaintiff vide T.S. No.27 of 1981-I on contest against the defendants preliminarily for partition of the suit A Schedule properties in two equal parts allotting one such share to the plaintiff and also declaring the sale deed vide Ext. A executed by the defendant Nos.1 and 2 in favour of the defendant Nos.4 to 6 as null and void and the same is not binding on the plaintiff as per its Judgment and decree dated 29.04.1985 and 08.05.1985 respectively by giving observations on the basis of the reflections made in the documents vide Exts.1 to 4 and as well as the evidence of the parties that, plaintiff is the son of Butia through his second wife Duti. The suit properties were the properties of Butia, for which, the plaintiff is entitled for half share in the suit properties and the stands taken by the defendants that, the plaintiff is not the son of Butia, is not accepted. 6. On being dissatisfied with the aforesaid Judgment and Decree dated 29.04.1985 and 08.05.1985 respectively passed in T.S. No.27 of 1981-I in favour of the plaintiff and against the defendants, they (defendants) challenged the same by preferring the 1st Appeal vide T.A. No.10 of 1985 being the appellants against the plaintiff by arraying him (plaintiff) as respondent. SA No.211 of 1987 Page 6 of 14 {{ 7 }} After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal vide T.A. No.10 of 1985 of the defendants and set aside the Judgment and Decree passed by the trial court in favour of the plaintiff in T.S. No.27 of 1981-I and dismissed that suit of the plaintiff vide T.S. No.27 of 1981-I as per its Judgment and Decree dated 27.03.1987 and 04.04.1987 respectively assigning the reasons that, the documents vide Exts.1 to 4 relied by the plaintiff are not sufficient as per law to establish that, he (plaintiff) is the son of Butia through Duti and no plausible legally admissible oral evidence is available on behalf of the plaintiff to establish him as the son of Butia Mahakul. 7. On being aggrieved with the aforesaid Judgment and Decree passed on dated 27.03.1987 and 04.04.1987 respectively in T.A. No.10 of 1985 setting aside the Judgment and Decree passed by the trial court in T.S. No.27 of 1981-I in favour of the plaintiff for partition of the suit properties preliminarily allotting half share to him (plaintiff), he (plaintiff) challenged the same by preferring this 2nd Appeal being the appellant against the defendants by arraying them (defendants) as respondents. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. SA No.211 of 1987 Page 7 of 14 {{ 8 }} “Whether the decision of the lower appellate court in reversing the finding of the trial court to the effect that the plaintiff is the son of Butia through his wife duti is sustainable in law?” 8. 9.
Legal Reasoning
I have already heard from the learned counsels of both the sides. Ext.2 is the Hal R.o.R of the suit properties vide Khata No.168, which was published jointly in the name of Nabaghana Mahakul, the plaintiff Karunakar Mahakul as the sons of Butia Mahakul and Duti Mahakul (mother of the plaintiff) as the wife of Butia Mahakul. Ext.3 is the electoral roll (voter list) of the year 1970, in which, it has been reflected in Sl. No.81 that, Duti Mahakul (mother of the plaintiff) as the wife of Butia Mahakul. Ext.4 is the certified copy of the order passed by the Settlement Authorities during the stage of yadast in respect of the suit properties reflecting the genealogy of the plaintiff showing Nabaghana and the plaintiff as the sons of Butia Mahakul. The above reflected relationship of the plaintiff, Nabaghana Mahakul and mother of the plaintiff in the Hal R.o.R vide Ext.2 showing their relationship with Butia Mahakul was not accepted by the 1st Appellate Court in its Judgment and Decree passed in T.A. No.10 of 1985 by placing reliance in the ratio of the decision reported in 34 (1968) CLT Page 778: Jadumani Patra Vs. Padan Patra & Others assigning the SA No.211 of 1987 Page 8 of 14 {{ 9 }} reasons that, the settlement record of right has no evidentiary value in resolving any dispute regarding the relationship between the persons recorded therein. 10. Likewise, the 1st Appellate Court has also not accepted the reflected relationship of the plaintiff, his mother (Duti) with Butia Mahakul in the electoral roll and settlement papers vide Exts.3 and 4 assigning the reasons that, the said documents are not admissible under law. But, the admissibility of the status/relationship of the parties, on the basis of the settlement R.o.R and as well as other Government papers like electoral roll vide Exts.2 to 4 has already been clarified by the Hon’ble Courts in the ratio of the following decisions: (I) 1999 (2) Civ.C.C. 621 (Orissa) & 87 (1999) CLT 737— Sanatan Das & Others Vs. Smt. Ahalya Dei & Others (Para No.11) “Records of Rights—Evidentiary Value relating the relationship of the recorded owners thereof—Though Record-of- Rights may not create or extinguish title, the entries in the Record-of-Rights the raise a presumption relationship.” relating to to (II) 1988 (1) OCR 147—Smt. Anita Kumari Rath Vs. Bata Krushna Rath & Another (Para No.13) “Evidence Act, 1872—Section 35—Electoral Roll is a public document__Relevant under Section 35.” SA No.211 of 1987 Page 9 of 14 {{ 10 }} (III) 2012 (1) OLR 902—Dhruba Charan Panda Vs. State of Orissa & Others (Para No.14) “Electoral rolls—Evidentiary value—Electoral rolls are prepared by the enumerator, who move from house to house in the village and prepare the list by interviewing members of each house. Thereafter, provisional list is published and objections are invited, then only a final list is prepared. So, the entire process of preparing electoral rolls stands at a much higher footing, because, there had the constitutional sanction behind it for such preparation.” (IV) 2018 (II) OLR 1144—Sagiri Prusti and Others Vs. Sri Banamali Prusti and after him Mrutyunjaya Prusti & Others “Bereft of the R.o.R, there are other documents which go to show that ‘J’ has been maintained as son of ‘S’—When Government records are maintained to show the status of ‘J’ without fabricated the evidence of P.W.1 coupled with the documents clearly proved ‘J’ as the son of ‘S’ but not ‘R’.” (V) AIR 1956 (SC) 305—Harihar Prasad Singh & Another Vs. Deonarain Prasad & Others. (Para No.5) “Documents are ante litem motam, and as some of them are inter-parties and extend over a considerable period of time, they form cogent and strong evidence. (VI) 2012 (Suppl-2) OLR-259, 2012 (II) CLR 358 & 114 (2012) CLT 799—Sanjukta Mallik Vs. Bharati Sethi (Para No.8) “A document which came into existence after the cause of action arose, then such document should be viewed with suspicion. Such documents have far less probative value than the materials which have come into existence much prior to the time when the cause of action arose in the case. (VII) 82 (1996) CLT 44—Kshitish Chandra Mishra Vs. Smt. Sara Sahu & Another (Para No.17) “Ordinarily, a document which comes into being during the pendency of a litigation is of very little value for the party relying upon such document. SA No.211 of 1987 Page 10 of 14 {{ 11 }} (VIII) 1972 (1) C.W.R 318—Gour Chandra Moharana Vs. Purendra Moharana & Others (Para No.5). “Property jointly recorded in the names of all the 4 branches—This is quite consistent with the properties being joint.” When, the undisputed documents vide Exts.2,3 and 4, those have come into existence on being prepared by the Government officials in due discharge of their official duties much prior to the rising of cause of action in the suit vide T.S. No.27 of 1981-I at hand indicating that, the plaintiff (appellant in this 2nd Appeal) is the son of the original recorded owner of the suit properties i.e. Butia through his second wife Duti and when the defendants have not challenged/objected the said Exts.2,3 & 4 in spite of the invitation of the objections for the preparation of the same by the Government agencies and when as per the propositions of law enunciated in the aforesaid decisions, presumption under law relating to the correctness of the reflected relationships of the parties indicated in Exts.2,3 & 4 is provided and when there is no sufficient legally admissible evidence on behalf of the defendants to rebut such presumptions regarding the status of the plaintiff as the son of Butia through Duti, then, at this juncture, the decision of the 1st Appellate Court passed in T.A. No.10 of 1985 reversing the Judgment and Decree of the trial court passed in T.S. No.27 of 1981 cannot be sustainable under law. SA No.211 of 1987 Page 11 of 14 {{ 12 }} For which, the Judgment and decree passed by the 1st Appellate Court is interferable through this 2nd Appeal filed by the plaintiff. Therefore, by accepting to the findings and observations made by the trial court in its Judgment and Decree passed in T.S. No.27 of 1981 by reversing the Judgment and decree passed by the 1st Appellate Court in T.A. No.10 of 1985, it is held being in agreement with the views of the trial court that, the plaintiff in T.S. No.27 of 1981-I i.e. Karunakar Mahakul is the son of Butia Mahakul through his second wife Duti. As the original owner of the suit properties i.e. Butia Mahakul has died leaving behind his two sons i.e. Nabaghana Mahakul and the plaintiff, for which, after the death of the Butia Mahakul, the suit properties have devolved upon Nabaghana Mahakul and the plaintiff and as Nabaghana Mahakul died leaving behind the defendant Nos.1 to 3 as his successors, for which, the defendant Nos.1 to 3 are jointly entitled for half share and the plaintiff Karunakar Mahakul alone is entitled for the half share from the suit properties described in Schedule A of the plaint. As the defendant Nos.4 to 6 are the purchasers of the suit properties through the sale deed dated 27.03.1981 from the defendant Nos.1 and 2, for which, they (defendant Nos.4 to 6) are entitled to be allotted their purchased properties from the shares of defendant Nos.1 and SA No.211 of 1987 Page 12 of 14 {{ 13 }} 2. Because, the said sale deed dated 27.03.1981 executed by the defendant Nos.1 and 2 in favour of the defendant Nos.4 to 6 is not void, but, that sale deed is not binding upon plaintiff (Karunakar Mahakul). When it is held that, the Judgment and Decree passed by the 1st Appellate Court in T.A. No.10 of 1985 are not sustainable under law and the same is interferable through this 2nd Appeal filed by the appellant (plaintiff), for which, the 2nd Appeal filed by the appellant (plaintiff) is to be allowed in part.
Decision
In the result, the 2nd Appeal filed by the appellant is allowed in part on contest, but without cost. 11. The Judgment and Decree passed by the 1st Appellate Court in T.A. No.10 of 1985-I are set aside. The suit be and the same filed by the plaintiff (appellant) vide T.S. No.27 of 1981-I is decreed preliminarily for partition on contest against the defendants, but without cost. 12. Out of the suit properties described in Schedule A of the plaint, the plaintiff is entitled for half share and the defendant Nos.1 to 3 are jointly entitled for half share subject to adjustment of the properties sold by the defendant Nos.1 & 2 to the defendant Nos.4 to 6 through the registered SA No.211 of 1987 Page 13 of 14 {{ 14 }} sale deed dated 27.03.1981 from the shares of the respective defendant sellers thereof. The parties may amicably affect partition of the suit properties in proportion to their respective shares as indicated above within a period of 3 months hence, failing which, any of the parties may apply to the court for making the decree final. In the final decree proceeding, the Civil Court Commissioner to be appointed by the court shall make the division of the suit properties amongst the parties by allotting their respective shares in their favour in accordance with the apportionments made above and while so partitioning, he shall respect to the possession and convenience of the parties. Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:19.02.2024 (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 26-Feb-2024 17:37:20 SA No.211 of 1987 Page 14 of 14