The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.356 of 2008 An application under Section 100 of the Civil Procedure Code. Sauri Behera & Others …. Appellants -versus- Nilamani Behera & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant Mr. S.S. Mohapatra, on behalf of - Mr. B. Bhuyan, Advocate. For Respondent - Mr. Nirod Kumar Sahu, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :11.10.2023 :: Date of Judgment :10.11.2023 1. This appeal has been preferred against the confirming Judgment. The appellants were the plaintiffs in the suit vide T.S. No.204 of 1998 and were the appellants in RFA No.14 of 2003. The respondents were the defendants in the suit vide T.S. No.204 of 1998 and were the respondents in RFA No.14 of 2003. R.S.A No.356 of 2008 Page 1 of 14 {{ 2 }} 2. The suit vide T.S. No.204 of 1998 was a suit for declaration and permanent injunction. 3.
Legal Reasoning
The case of the plaintiffs against the defendants was that, their common ancestor was one Bhikei. The said Bhikei died leaving behind one son and one daughter namely, Dukhei & Sara. Dukhei died leaving behind his only daughter i.e. Radhi, who married to Karuni. Sara married Sobani. Out of the wedlock of Sara and Sobani, Chintamani was born. The branch of Radhi was extinct. For which, Chintamani succeeded to the undivided interest left by Radhi. Chintamani as swell as his father Sobani both died on the same day and their interest in the suit properties devolved upon Sara. After the death of the husband of Sara i.e. Sobani, Sara married for the second time to the younger brother of Sobani i.e. Abhina. Two sons were born through Sara and Abhina i.e. Nilamani (defendant No.1) and Bholi (Plaintiff). After the death of Sara, all the interest of Sara over the properties devolved upon her two sons i.e. Nilamani and Bholi and accordingly, Nilamani and Bholi possessed the suit properties along with other properties jointly as co-sharers and mutated all the properties left by Sara including the suit properties into their names and paid rents to the R.S.A No.356 of 2008 Page 2 of 14 {{ 3 }} Government. Nilamani was looking after the land affairs, as Bholi was illiterate. For which, in the revenue records, Nilamani had managed to record his father’s name as Sobani and so also had managed to record the father’s name of Bholi as Abhina. By taking the advantage of such recording in the revenue records of the suit properties, he (Nilamani, defendant No.1) created disturbances in the joint possession of the suit properties with Bholi and made inconveniences to Bholi. For which, without getting any way, Bholi approached the civil court by filing the suit vide T.S. No.204 of 1998 being the plaintiff against the defendants including the defendant No.1 (Nilamani) praying for the declaration that, the defendant No.1 (Nilamani) is the son of Abhina and to injunct the defendants permanently by restraining them from dispossessing him (Bholi) and from interfering with his joint possession over the suit properties in any manner along with other reliefs, to which he is entitled for. 4. But, during the pendency of the suit vide T.S. No.204 of 1998, the sole plaintiff i.e. Bholi expired, for which, his LRs were substituted as plaintiff Nos.1(a) to 1(e) in his place. 5. Having been noticed from the court in T.S. No.204 of 1998, the defendant No.1 (Nilamani) challenged the suit of the plaintiff by filing his written statement after taking his stands inter alia therein that, the suit of the plaintiff is not maintainable having no cause of action for the same. Page 3 of 14 R.S.A No.356 of 2008 {{ 4 }} The suit properties are not properly identified. The suit of the plaintiff is bad for non-joinder of necessary parties. The suit properties are grossly under-valued. He (defendant No.1) also disputed to the above family pedigree stated by the plaintiff in his plaint and pleaded in his written statement that, he (defendant No.1 Nilamani) was born out of wedlock of Sara and Sobani and he is the son of Sobani through Sara, but, he is not the son of Abhina through Sara. According to him, Bhikei was their common ancestor. That Bhikei had one son and two daughters namely, Dukhei, Sara and Hara. Sara had married Sobani. Sobani had two sons through Sara, they are Chintamani and Nilamani (defendant No.1). The share of Dukhei was purchased by his elder brother i.e. Chintamani through his father guardian sobani as per registered sale deed dated 04.06.1935. His elder brother Chintamani, died in the year 1936, while he was at the age of 08 years. One day after the death of his elder brother Chintamani, his father Sobani died leaving behind him (defendant No.1, Nilamani). Abhina had married first to a lady of Nayagarh and after the death of his first wife, he married to another lady namely, ulla and she (ulla) also expired subsequently. Thereafter, Abhina married to his widow mother Sara for the third time, which was much prior to 1956. Due to remarriage of his widow mother Sara to Abhina much prior to 1956, Sara R.S.A No.356 of 2008 Page 4 of 14 {{ 5 }} was divested from her all interests in the suit properties. Therefore, he (defendant No.1) has become the exclusive owner over the suit properties left by his brother Chintamani as well as his father Sobani. Therefore, the plaintiff is not entitled for the decree of declaration of his status (status of defendant No.1) as the son of Abhina and he (plaintiff) is not entitled for the decree of permanent injunction against him (defendant No.1) in respect of the suit properties. 6. The defendant Nos.4 to 6 and 13 and 16 filed separate written statements taking the identical stands like the defendant No.1 in their respective written statements. 7. The defendants i.e. defendant Nos.2,3,9 and 10 filed their written statements supporting the case of the plaintiffs. But the rest other defendants were set ex parte without filing any written statement. 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 9 Nos. of issues were framed by the trial court and the said issues are; Issues. “1. Is the suit maintainable in law? 2. Have the plaintiffs any cause of action to file the suit? 3. Is the suit bad for non-joinder of necessary party? 4. Is the suit properly valued? 5. Has this Court got pecuniary jurisdiction to adjudicate the suit? R.S.A No.356 of 2008 Page 5 of 14 {{ 6 }} 6. Whether Nilamani Behera is the son of Abhina Behera or Sobani Behera? 7. Whether the plaintiffs are entitled to a decree of permanent injunction against the defendants restraining them from interfering with their joint possession with them in respect of the suit properties? 8. Whether the vested right of Sara can be divested by her re-marriage? 9. To what other relief the plaintiffs are entitled?” 9. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, 5 witnesses were examined on behalf of the plaintiff including the plaintiff No.1(a) as D.W.5 and several documents were exhibited on their behalf vide Ext.1 to 8. On the contrary, the defendants examined 6 witnesses from their side including the defendant No.1 as DW 6 and proved some documents on their behalf vide Ext.A to F. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue No.6 against the plaintiffs and held that, defendant No.1 (Nilamani) is the son of sobani and he is not the son of Abhina and on the basis of such findings, the trial court answered rest other issues against the plaintiffs and finally, dismissed the suit of the plaintiffs on contest vide its Judgment and decree dated 29.01.2003 and 11.02.2003 respectively. R.S.A No.356 of 2008 Page 6 of 14 {{ 7 }} 10. On being dissatisfied with the said Judgment and decree of dismissal of the suit of the plaintiffs by the trial court, the plaintiffs challenged the same by preferring the 1st appeal vide RFA No.14 of 2003 being the appellants against the defendants by arraigning them (defendants) as respondents. After hearing from both the sides, the 1st Appellate Court dismissed the RFA No.14 of 2003 of the plaintiffs and confirmed to the Judgment and decree of dismissal of the suit passed by the trial court. On being aggrieved with the above confirming Judgment passed by the 1st Appellate Court in RFA No.14 of 2013, the plaintiffs challenged the same by preferring this 2nd Appeal against the defendants. 11. The 2nd Appeal has been admitted on formulation of the substantial questions of law about the sustainability and justifiability of the Judgments and decree of the trial court and the 1st Appellate Court. It appears from the recitals/reflections/indications in the sale deeds vide Exts.A,E & D of the year 1935, 1960 & 1982 by the parties to the said sale deeds (those were the successors of their common ancestor Bhikei and those have expired subsequent to the execution of the said sale deeds vide Ext.A,E & D including original plaintiff Bholi) that, defendant No.1 (Nilamani) is the son of Sobani and Bholi is the son of Abhina. The said admissions of Bholi in the sale deeds itself is an estoppel under law against the plaintiffs (those are the successors of Bholi) to challenge R.S.A No.356 of 2008 Page 7 of 14 {{ 8 }} subsequently by filing the suit in the year, 1998 praying for a declaration that, Nilamani (defendant No.1) is not the son of Sobani. The above recitals/reflections/indications in the aforesaid sale deeds, (those were executed much prior to the institution of the suit) about the status of defendant No.1 (Nilamani) as the son of Sobani and the status of the plaintiff Bholi as the son of Abhina are admissible as per Sub clause 5 and 6 of Section 32 of Indian Evidence Act, 1872. On that aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions: (i) 114 (2012) CLT Page—799—Sanjukta Mallik Vs. Bharati Sethi—Evidence— Appreciation. “While appreciating the evidence, the court must give importance to those materials which came into existence prior to the rising of cause of action. The documents which came into existence after the cause of action arose, such documents should be viewed with suspicion and such documents have far less probative view then, the materials which have come into existence much prior to the time, when the cause of action arose in the case.” (ii) AIR (38) 1951 Orissa—Page 337—Subarna Bissoiani Vs. Arjuno Bissoi—Evidence Act—- Section—32(5) “Unregistered gift deed is admissible with reference to collateral matters—Executant dead—Statement that, donee is his legally married wife is admissible under clause (5) of R.S.A No.356 of 2008 Page 8 of 14 {{ 9 }} Section 32—It raises presumption of marriage—Burden to prove contrary is on him, who so asserts.” 12. Here in this suit at hand, the aforesaid sale deeds vide Exts-A,E & D have been executed much prior to the institution of the suit and the executants thereof are not alive. The statements of the dead persons in the sale deeds vide Ext.A,E & D regarding the status of the plaintiff Bholi, defendant No.1 (Nilamani), Sara, Sobani and Chintamani is admissible and acceptable under law in view of the principles of law enunciated in the ratio of the aforesaid decisions. In two consolidation RoRs vide Exts.B & C, the consolidation authorities have specifically indicated that, defendant No.1 (Nilamani) is the son of Sabani and the plaintiff (Bholi) is the son of Abhina. The said consolidation RoR’s were prepared in the year 1990, which is much prior to the institution of the suit by the plaintiff (Bholi). Because, the suit was filed by Bholi in the year 1998. The above reflections by the consolidation authorities in the finally published R.o.Rs vide Exts.B & C in the year 1990 about the status of Nilamani (defendant No.1) as the son of Sobani and Bholi (plaintiff) as the son of Abhina have not been challenged before any competent higher forum of the consolidation either by Bholi or by his successors i.e. the present plaintiffs (those have been substituted in place of Bholi) R.S.A No.356 of 2008 Page 9 of 14 {{ 10 }} The law relating to the value of indication of status of a party in the finally published consolidation R.o.Rs like Exts.B & C has already been clarified in the ratio of the following decision: 2018 (2) CLR Page-951-Harekrushna Dash Vs. Sadasiva Dash-Consolidation RoR-Evidentiary Value-Indication of status of recorded owner therein. “In deciding the right title and interest in the property, the power also remains with the consolidation authority to decide the status of the party having direct nexus with claim/counter claim relating to the right title and interest over the property.” In view of the aforesaid settled propositions of law enunciated in the ratio of the decision referred to Supra, heavy weight gets attached to the reflection of father’s name of the plaintiff in the finally published RoRs by the consolidation authorities. Because, such finally published RoRs of the consolidation authorities have not been challenged since its publications. For which, the reflections made in the RoRs vide Exts.B & C by the consolidation authorities regarding the father’s name of the plaintiff and defendant No.1 is acceptable under law. It appears from the Judgment of trial court and 1st Appellate Court that, the voter identity card vide Ext.G has been issued by the Election Commission of India indicating that, the defendant No.1 (Nilamani) is the son of Sobani. On that aspect, the following decision can be referred to: R.S.A No.356 of 2008 Page 10 of 14 {{ 11 }} 2019 (1) OJR 358—Amina Bibi and others Vs. Sk. Md. Hanif & Others—Voter Identity Card and Aadhaar Card “When it is revealed from the voter identity card and Aadhaar card that, the names of the persons indicated therein are the LRs of the proforma defendant No.5, for which, there is no reason to disbelieve the voter identity card and Aadhaar card, which are public documents regarding their status as the sons and the LRs of the proforma defendant No.5.” 13. So, by applying the principles of law enunciated in the ratio of the aforesaid decision of the Hon’ble courts, it can also be held on the basis of the voter identity card vide Ext.G that, the defendant No.1 (Nilamani) is also the son of Sobani, but not the son of Abhina. 14. It is the undisputed case of the parties that, Sara (mother of the plaintiff and defendant No.1) had become widow much prior to the coming into force of Hindu Succession Act, 1956 i.e. much prior to 1956. 15. Sara being the widow of Sobani had married to Abhina for the Second time before the year 1956. When it is the undisputed case of the parties that, Sara being a widow had remarried Abhina (father of Bholi) much before 1956, then at this juncture, in order to be clarified about her right over the suit properties after her remarriage to Abhina, I thought it proper to refer the following decision of the Hon’ble courts. R.S.A No.356 of 2008 Page 11 of 14 {{ 12 }} 107 (2009) CLT Page—320-Murali Rana Vs. Jasoda Rana and another (Para-4)—Hindu Widows Remarriage Act, 1856—Hindu Succession Act, 1956—Hindu Law. “After death of husband, widow remarried before commencement of Hindu Succession Act, 1956— She lost her right of succession with her son born from 2nd husband. Only daughter born from 1st husband can succeed her father’s estate.” Here in this suit at hand, when the consolidation authorities have prepared the RoRs in respect of the suit properties indicating therein that, Nilamani (defendant No.1) is the son of Sobani and the said consolidation RoRs vide Exts.B & C were prepared in the year, 1990 i.e. much prior to institution of the suit deciding the right, title, interest and status of the parties and the said RoRs have not been challenged by Bholi and his sons and that consolidation RoRs have also not been set aside as yet, then, at this juncture, without setting aside the said consolidation RoRs, the suit for declaration and injunction filed by Bholi as a plaintiff is not entertainable under law. On that aspect, the propositions of law has already been clarified in the ratio of the following decisions: 2019 (1) CLR Page 1078—Bisakha Pradhan and Another Vs. Collector, Cuttack and Another—(Part-II) CPC—1908—Section 9 read with Specific Relief Act, 1963—Section 37 and 38—Injunction-permanent injunction R.S.A No.356 of 2008 Page 12 of 14 {{ 13 }} “In absence of prayer to set aside the RoR published by the consolidation Authority, the simple suit for injunction is not maintainable.” 2015 (1) CLR Page 360---Chintamani Kandi (dead) & his LRs. Para Dei and Others Vs. Arjuna Kandi & Others (Para-13) “RoR prepared by the consolidation Authority value thereof—Consolidation RoR is necessary to pronounce the Judgment, because the consolidation authority having decided appellant’s title in the suit land have recorded it in the name appellant. It proves the title and possession of the appellant over the suit land.” 16. Here in this suit at hand, when there is no prayer for setting aside the consolidation RoRs and when the consolidation authorities have prepared the RoRs much prior to the suit deciding the status and title of the parties and when defendant No.1 (Nilamani) has born from Sara through her first husband Sobani and when Sara being the widow wife of Sobani had remarried Abhina much prior to 1956 and when after her remarriage, the plaintiff (Bholi) had born from Sara through her second husband Abhina, then, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it cannot be held that, the findings and observations made by the trial court and as well as the 1st Appellate Court that, defendant No.1 (Nilamani) is not the son of Abhina, but he (defendant No.1 Nilamani) is the son of Sobani and plaintiff Bholi is the son of Abhina and the present plaintiffs (substituted legal heirs of Bholi) R.S.A No.356 of 2008 Page 13 of 14 {{ 14 }} are not entitled for the decree of permanent injunction cannot be held erroneous in any manner. 17. As per the discussions and observations made above, when it is held that, the Judgments and decrees of the trial court and as well as the 1st Appellate Court are not erroneous in any manner, for which, the question of interfering with the same through this 2nd Appeal filed by the appellants/plaintiffs does not arise. So, the 2nd Appeal filed by the plaintiffs must fail. 18. In the result, the appeal filed by the appellants is dismissed on contest, but without cost. 19. The Judgment and decree passed by the 1st Appellate Court in RFA No.14 of 2003 confirming the Judgment and decree of dismissal of the suit passed by the trial court are hereby confirmed. (A.C. Behera), Judge. Orissa High Court, Cuttack. 10th November, 2023//Rati Ranjan Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 13-Nov-2023 16:26:43 R.S.A No.356 of 2008 Page 14 of 14