The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.93 of 2000 Surendra Khandei & Another …. Appellants Mr. P.R. Barik, Advocate -Versus- Raimani Das & Another …. Respondents Mr. R. Agarwal, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:18.12.2023 1. Instant appeal under Section 100 of the Civil Procedure Code, 1908 is at the behest of the appellants assailing the correctness of the judgment promulgated in Title Appeal No.91/29 of 1999-1992 by the learned Additional District Judge, Baripada, Mayurbhanj, whereby, the decree of the learned Sub-Ordinate Court, Udala in Title Suit No.22 of 1989 has been overruled and set aside on the grounds inter alia that the decision is against the weight of evidence and hence, not tenable in law.
Legal Reasoning
2. The deceased appellant No.1 as plaintiff instituted the suit in Title Suit No.22 of 1989 against the respondents for declaration of his right, title and interest and confirmation of possession over the Schedule A-1 and B-1 lands morefully described in the plaint. The said suit was contested by the respondents with WS filed. The appellant No.2 is the son of appellant No.1 (dead) and in the suit, he was pro-forma defendant No.3. Considering the pleadings of the parties, the learned Sub-Ordinate Judge, Udala framed as many as six issues and answered them all and decreed the suit on SA No.93 of 2000 Page 1 of 7 Surendra Khandei & Another Vrs. Raimani Das & Another contest. The respondents being unsuccessful filed Title Appeal No.91/29 of 1999-1992 which was allowed by impugned judgment dated 26th November, 1999 with conclusion that the decision of the Trial court is legally not sustainable. The appellants thereafter filed the present second appeal and challenged the findings of the learned Lower Appellate Court on various grounds. 3. This Court by order dated 25th July, 2002 formulated the substantial questions of law which are as follows: (i) Whether the learned Lower Appellate Court was correct in doubting the genuineness of Ext.1 which is admittedly more than thirty years old with production of a certified copy of the same from the custody of plaintiff in accordance with Section 65 of the Indian Evidence Act? (ii) Whether the learned Lower Appellate Court was justified to declare the sale deed dated 25th September, 1958 to be void when the same was not challenged by the defendants within the time of limitation?
Legal Reasoning
4. Heard Mr. Barik, learned counsel for the appellants and Mr. Agarwal, learned counsel for the respondents. 5. Mr. Barik, learned counsel for the appellants submits that the Lower Appellate Court fell into serious error in setting aside the decree in the suit. It is contended that the sale deed dated 25th September, 1958 was never challenged by defendant Nos.1 and 2. In other words, Mr. Barik submits that in absence of any challenge or dispute raised over and in respect of the transaction, learned Lower Appellate Court was not right in disbelieving the genuineness of the sale deed i.e. Ext.1 when admittedly same is more than 30 years old and foundation for the loss of original sale deed was laid as per Section 65 of the Indian Evidence Act. SA No.93 of 2000 Page 2 of 7 Surendra Khandei & Another Vrs. Raimani Das & Another Furthermore, according to Mr. Barik, the concerned SDO did not have the authority to pass any such order with regard to family settlement, inasmuch as, there has been no partition among the family members in the manner prescribed under Section 19 of the OLR Act which stipulates that the same can be effected before the Revenue Officer, so therefore, Ext.B could not have been relied upon and referred to by learned Lower Appellate Court which did not satisfy the statutory requirement as contemplated under the said Act. With the above grounds, Mr. Barik, learned counsel for the appellants would submit that the Trial court rightly accepted Ext.1 and disbelieving any such settlement vide Ext.B, decreed the suit, which was set aside in appeal. 6. On the contrary, Mr. Agarwal, learned counsel for the respondents justified the findings of Lower Appellate Court and submits that there was no legal necessity for alleged transaction and when the execution Ext.1 was doubted and rightly so, considering the settlement reached at between the parties through the order of the authority concerned, hence, therefore, the decision in appeal is not liable to be interfered with. It is contended that there has been discussion of all the material evidence by Lower Appellate Court and rightly considering the settlement, rendered the findings and dismissed the suit as a result. 7. The suit is for declaration of title and possession in favour of the plaintiff. The unsuccessful defendant Nos.1 and 2 filed appeal before the learned Lower Appellate Court which was allowed by the impugned judgment. In other words, the decision of the learned Trial court in the suit was set aside. The case of the plaintiff is that after the death of Kalindi, who died leaving behind no son, his widow Painta succeeded to the property as a limited owner and by registered sale deed dated 25th September, 1958, the latter sold the entire property to Surendra, Damodar SA No.93 of 2000 Page 3 of 7 Surendra Khandei & Another Vrs. Raimani Das & Another and Satrughana and delivered possession of the same and such disposal was on account of her legal necessity and soon after the said purchase, the brothers owned and possessed it and mutated the same and after the death of Damodar and Satrughana, the plaintiff continued to possess the same exclusively. It has been further pleaded that defendant No.2 managed to obtain the sale deed dated 12th September, 1980 from defendant No.3 in the name of defendant No.1 in respect of suit property under Schedule ‘A’ & ‘B’ exercising undue influence and without paying the consideration money and since there was no delivery of possession, defendant No.2 acquired no right over the same. The other facts with regard to the proceedings in Objection Case No.644 of 1982 and Objection Case No.1530 of 1986 and the final order in appeal have been pleaded. The defendant No.3 filed WS and denied the averments of the plaint. As earlier stated, relevant issues were framed on family partition in respect of the property left behind by Kalindi and with respect to the sale deed 25th September, 1958 and also to subsequent transaction dated 12th September, 1980 entered into by a sale deed executed by defendant No.3 in favour of defendant No.1, whether, to be genuine and valid. 8. It is not in dispute that the suit property originally belonged to Kalindi, late father of Kasu and Dasu who had predeceased his wife Painta leaving behind the daughters named above. The wife of Kalindi succeeded to the suit property as a limited owner and after death of Kasu and Dasu devolved upon the plaintiff, who is the son of Kasu. In fact, the plaintiff claimed absolute title over the schedule property on the strength of the registered sale deed dated 25th September, 1958 executed by wife of late Kalindi in his favour. The contesting defendants claimed title over the suit land through Dharani, son of Dasu and according to them, there was SA No.93 of 2000 Page 4 of 7 Surendra Khandei & Another Vrs. Raimani Das & Another an amicable family partition after death of Painta. In other words, the defendants challenged the sale deed dated 25th September, 1958 and pleaded that Painta was an illiterate lady and aged about 70 years by the time when the alleged sale deed was executed and thus, she had no independent understanding as to the nature of transaction and that apart, there was no legal necessity to alienate the interest absolutely in favour of the plaintiff and two of his brothers. The sale deed in question stands marked as Ext.1 and there is no denial to the fact that the wife of late Kalindi was 70 years when she executed the same. From the evidence of P.Ws.5 and 8, it was proved that Painta was old enough when the deed was executed. In case of execution of a deed by an illiterate woman, law is well settled that the party who relies on it must establish that she executed the same after knowing and fully understanding the nature of the transaction. On perusal of the evidence on record, the Court finds that it is not revealed as to what was the need and necessity for alienation of the property in question vide Ext.1. In other words, the legal necessity for the alleged sale could not be established and brought on record. In fact, Ext.1 is a certified copy of the sale deed and hence, secondary evidence was led by the plaintiff. The ground for accepting Ext.1 was that the original was lost and destroyed in fire. Considering the same, the learned Lower Appellate Court rejected the secondary evidence as the ground for such admission vis-à-vis Ext.1 was not satisfactorily proved. Furthermore, the execution with the full knowledge and understanding regarding transaction by Painta, who admittedly an illiterate women aged about 70 years, was disbelieved and also for the fact that there is conspicuous absence to proof of the legal necessity prevailing at the time of the alienation. SA No.93 of 2000 Page 5 of 7 Surendra Khandei & Another Vrs. Raimani Das & Another 9. Presumption under Section 90 of the Indian Evidence Act has been demanded by the plaintiff considering it to be more than 30 years old. As earlier stated, learned Lower Appellate Court declined to accept Ext.1 as it was a secondary evidence, which did not fulfill the essential conditions of Section 65 of the Indian Evidence Act. In other words, the foundation in respect of the sale deed dated 25th September, 1958 with secondary evidence could not be laid from the side of the plaintiff, hence, the same was not accepted with the presumption attached to by virtue of Section 90 of the Indian Evidence Act. In fact, the learned Lower Appellate Court referred to a decision of the Apex Court reported in AIR 1996 SC 1253 to hold that a presumption under Section 90 does not apply to a copy or a certified copy of a document even though 30 years old but if a foundation is laid for admission of secondary evidence in terms of Section 65 of the Indian Evidence Act by proof of loss or destruction of the original and such a document is produced from property custody, then only such presumption may be attracted. 10. In the suit partition of the property between Kasu and Dasu after death of their mother, namely, Painta is pleaded with reference to Ext.C, P.W.8 admitted about partition of the property of late Kalindi which was in connection with PG Case No.75 of 1980.The Court finds that such partition has not been challenged from the side of the plaintiff. In fact, with respect to the proceeding before learned SDO, Kaptipada, Udala in PG Case No.75 of 1980, joint partition between plaintiff and Dharani was claimed and in that respect, Ext.B has been referred to, which is a family settlement dated 30th March, 1992. Such settlement vide Ext.B was challenged on the ground that the same is not a registered one. So to say, Ext.B speaks about allotment of the suit property in an amicable settlement between D.W.4 and Surendra. SA No.93 of 2000 Page 6 of 7 Surendra Khandei & Another Vrs. Raimani Das & Another Considering the above facts, learned Lower Appellate Court held that there is nothing on record to doubt Ext.B and to hold that the settlement was beyond the knowledge and consent of the plaintiff and that apart the sale deed dated 25th September, 1958 and execution of the same could not be accepted in absence of legal necessity and also rejected the secondary evidence as no foundation was laid for its acceptance as per Section 65 of the Indian Evidence Act. The aforesaid findings of learned Lower Appellate Court do not suffer from any serious legal infirmity. In other words, the Court is of the conclusion that the learned Trial court though decreed the suit but miserably failed to take cognizance of the above aspects which was corrected in appeal and hence, the impugned judgment of learned lower Appellate Court dated 26th November, 1999 is not liable to be interfered with. 11. Hence, it is ordered. 12. In the result, the appeal is dismissed, however, in the circumstances, without any 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 SA No.93 of 2000 Page 7 of 7