The High Court
Case Details
A.F.R IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.38 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sri Ainthi Mallik (dead) & Others …. Appellant Tarini Mallik …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. U.K. Samal, Advocate. For Respondent CORAM: MR. JUSTICE A.C.BEHERA - Date of Hearing :19.07.2024:: Date of Judgment :07.08.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the partially reversing Judgment. 2. The appellants of this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No. 64 of 1983 and they were the appellants before the First Appellate Court in the 1st Appeal vide T.A. No.26 of 1989. The respondent of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.64 of 1983 and he was the respondent SA No.38 of 1997 Page 1 of 15 {{ 2 }}
Legal Reasoning
before the First Appellate Court in the 1st Appeal vide T.A. No.26 of 1989. The suit of the plaintiff (respondent in this 2nd Appeal) vide T.S. No.64 of 1983 against the defendants (appellants in this 2nd Appeal) was a suit for declaration, confirmation of possession and permanent injunction in alternative recovery of possession. 3. As per the case of the plaintiff before the Trial Court, the suit plot No.1746 under Khata No.291 was an anabadi land as per Sabik Settlement R.o.R and the same was under the Ex-Intermediary Estate of an Ex-Intermediary Paluni Dibya wife of Harekurshna Panda. The said Ex-Intermediary Paluni Dibya inducted 3 persons of one family i.e. Mali, Phagu & Pari in the suit properties as tenants for cultivation purpose by granting Hata Pata in their favour. On the basis of such induction through Hata Patta, Mali, Fagu & Pari possessed and cultivated the same. But, on dated 29.03.1955 Mali, Phagu & Pari sold that suit properties to Chakra Mallik (father of the plaintiff) by executing and registering a sale deed vide Ext.1 for a consideration of Rs.50/- and delivered the possession thereof. Thereafter, the purchaser Chakra Mallik reclaimed the suit properties and converted the same into homestead. While Chakra Mallik was the owner and in possession over the suit properties after purchasing SA No.38 of 1997 Page 2 of 15 {{ 3 }} the same from Mali, Phagu and Pari through Registered sale deed dated 29.03.1955 vide Ext.1, he (Chakra Mallik) died leaving behind the plaintiff as his son and successor. For which, the suit properties left by Chakra Mallik devolved upon the plaintiff. So, the plaintiff has been possessing the suit properties. In course of possession of the suit properties by the plaintiff, the suit properties have been settled in his favour through Lease Case No.5688 of 1976. On the basis of such settlement of the suit properties in favour of the plaintiff through lease case No.5688 of 1976, independent title of the plaintiff over the suit properties was created. But surprisingly, on dated 12.04.1983, the defendants tried to enter into the suit properties, for which, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.64 of 1983 against the defendants praying for declaration of his right, title and interest over the suit properties and for confirmation of his possession thereon and to injunct the defendants permanently from creating any sort of disturbance in his possession over the suit properties in alternative to recover the possession of the same from them (defendants), in case he (plaintiff) is found to be dispossessed from the same during the pendency of the suit by the defendants. SA No.38 of 1997 Page 3 of 15 {{ 4 }} 4. Having been noticed from the Trial Court in the suit vide T.S. No.64 of 1983 filed by the plaintiff, the defendants challenged the same by filing their written statement denying the allegations alleged by the plaintiff against them (defendants) taking their stands inter alia therein that: The Ex-Landlord had inducted Mali and Phagu as the tenant in respect of Ac.0.16 Decimals of land of suit plot No.1746, for which, Mali & Phagu had half share in that Ac.0.16 Decimals of land of suit plot No.1746. One Jasoda i.e. wife of Pari was inducted in respect of Ac.0.08 decimals of land of suit plot No.1746 and in respect of some undisputed lands of other plots by the Ex-Landlord. As Phagu and Mali were inducted as tenants in respect of Ac.0.16 decimals of suit plot No.1746 by the Ex-Landlord, for which, Mali had interest in respect of only Ac.0.08 Decimals of suit Plot No.1746 and Phagu had interest in respect of Ac.0.08 Decimals of suit plot No.1746. Defendant Nos.1 to 3 are the successors of Mali. The other defendants are the successors of Phagu and Pari. The State has recognized all the defendants as Raiyats of the entire suit properties of suit plot No.1746 by receiving rents from them regularly. Chakra (father of the plaintiff) neither had reclaimed the suit properties nor had converted the same into homestead land. No legal SA No.38 of 1997 Page 4 of 15 {{ 5 }} procedure was followed in lease case No.5688 of 1976 for leasing out the suit properties in favour of the plaintiff. Therefore, the plaintiff has no right, title, interest and possession over the suit properties. For which, the suit of the plaintiff against them (defendants) is liable to be dismissed with cost. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court in the suit vide T.S. No.64 of 1983 and the said issues are: ISSUES 1. land? 2. possession? 3. 4. 5. Has the plaintiff right, title, interest and possession over the suit Has the plaintiff acquired title over the suit land by way of adverse Is the sale deed dated 29.03.1955 a fraudulent one? Is the settlement in lease case No.5688 of 1976 valid and legal? To what relief or reliefs, the plaintiff is entitled? 6. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants, the plaintiff examined 5 numbers of witnesses including him as P.W.1 and relied upon the documents vide Exts.1 to 6 on his behalf. On the contrary, in order to nullify/defeat the suit of the plaintiff, they (defendants) examined 4 witnesses from their side including the defendant No.1 as D.W.1 and exhibited series of documents on their behalf vide Exts.A to E. SA No.38 of 1997 Page 5 of 15 {{ 6 }} 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court decreed the suit of the plaintiff on contest against the defendants answering issue Nos.1,2 and 3 in favour of the plaintiff and declared the right, title, interest of the plaintiff over the suit properties and confirmed his possession on the same and injuncted the defendants permanently by restraining them (defendants) from interfering into the possession of the plaintiff in the suit properties as per its Judgment and Decree dated 22.08.1989 and 08.09.1989 respectively assigning the reasons that, the sale deed dated 29.03.1955 vide Ext.1 executed by Mali & Fagu in favour of the plaintiff cannot be held to be vitiated by fraud, because that sale deed is not a fraudulent one and on the basis of purchase of the suit properties from Mali & Fagu through registered sale deed dated 29.03.1955 vide Ext.1, he (plaintiff) has acquired his right and title in respect of Ac.0.16 Decimals of land out of total Ac.0.20 Decimals of suit plot No.1746 and he (plaintiff) has perfected his title through adverse possession over rest Ac.04 Decimals of land over suit plot No.1746 and on the basis of his possession over the same since 29.03.1955, the plaintiff has right, title, interest and possession over the entire Ac.0.20 Decimals of suit plot No.1746. But, in issue No.4, it was held by the Trial SA No.38 of 1997 Page 6 of 15 {{ 7 }} Court against the plaintiff that, the settlement of the suit properties in favour of the plaintiff through lease case No.5688 of 1976 is not legal and valid. 8. On being dissatisfied with the aforesaid Judgment and Decree 22.08.1989 & 08.09.1989 respectively passed by the Trial Court in favour of the plaintiff and against the defendants, the defendants challenged the same by preferring the 1st Appeal vide T.A No.26 of 1989 being the appellants against the plaintiff arraying him (plaintiff) as respondent. After hearing from both the sides, the First Appellate Court dismissed the 1st Appeal of the defendants in part on contest as per its Judgment & Decree dated 29.08.1996 and 12.09.1996 respectively and partially modified the Judgment and Decree passed by the Trial Court in T.S. No.64 of 1983 and declared the right title and interest of the plaintiff only in respect of Ac.0.16 Decimals out of Ac.0.20 Decimals of suit plot No.1746 and confirmed his possession only in respect of Ac.0.16 Decimals out of Ac.0.20 Decimals of suit plot No.1746, but dismissed the suit of the plaintiff in respect of rest Ac.0.04 Decimals of suit plot No.1746 assigning the reasons that, as the plaintiff has purchased Ac.0.16 Decimals out of Ac.0.20 Decimals of suit plot No.1746 through Registered Sale Deed dated 29.03.1955 vide Ext.1 from Mali & Fagu, for SA No.38 of 1997 Page 7 of 15 {{ 8 }} which, he (plaintiff) has right, title & interest and possession in respect of that Ac.0.16 decimals out of Ac.0.20 Decimals of land of suit plot No.1746, but, he (plaintiff) has not been able to establish his title over the rest Ac.0.04 Decimals of suit plot No.1746 by way of adverse possession due to non-proving the essentials of adverse possession. For which, the plaintiff has right, title, interest and possession only in respect of that Ac.0.16 Decimals out of Ac.0.20 Decimals of suit plot No.1746. Therefore, his possession over Ac.0.16 Decimals of land out of Ac.0.20 Decimals of land over suit plot No.1746 was confirmed by the 1st Appellate Court. 9. On being aggrieved with the aforesaid part dismissal of the appeal of the defendants by the First Appellate Court, they (defendants) challenged the same by preferring this 2nd Appeal being the appellants against the plaintiff arraying him (plaintiff) as respondent. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. 1. Whether the court below have committed serious illegalities and irregularities in holding that, fraud has not been practised during the execution of the sale deed under Ext.1? 2. Whether the Judgment and Decree passed by the Trial Court and the First Appellate Court are sustainable under law being SA No.38 of 1997 Page 8 of 15 {{ 9 }} passed on no evidence and the findings being imaginary one? 3. Whether the First Appellate Court has committed illegality to declare the title of the plaintiff over Ac.0.16 Decimals of land out of Ac.0.20 Decimals of land of suit the First plot No.1746 and whether Appellate Court has committed illegality in confirming the plaintiff over Ac.0.16 Decimals of land out of Ac.0.20 Decimals of suit plot No.1746? the possession of 4. Whether the sale deed dated 29.03.1955 does not create any title in favour of the plaintiff in respect of the suit properties? 10. I have already heard from the learned counsel for the appellants (defendants) only, as, none appeared from the side of the respondent (plaintiff) to participate in the hearing of the 2nd Appeal. 11. As, the above four formulated substantial questions of law are interlinked having ample nexus with each other as per the Judgments and Decrees passed by the Trial Court and First Appellate Court, then, all the substantial questions of law are taken up together analogously for their discussions hereunder: It is the concurrent findings on facts by the Trial Court and 1st Appellate Court through appreciation of oral and documentary evidence of the parties that, the sale deed dated 29.03.1955 vide Ext.1 in respect of SA No.38 of 1997 Page 9 of 15 {{ 10 }} Ac.0.16 decimals out of Ac.0.20 decimals of suit plot No.1746 has been executed by Mali & Fagu in favour of the plaintiff. The plaintiff has prayed for declaration of his right, title and interest over entire Ac.0.20 Decimals of land of suit plot No.1746 and also has prayed for confirmation of his possession thereon. But, the First Appellate Court has declared the right, title and interest of the plaintiff only in respect of Ac.0.16 Decimals of land out of Ac.0.20 Decimals of land of suit plot No.1746 on the basis of the sale deed dated 29.03.1955 vide Ext.1 in favour of the plaintiff and has confirmed his possession only in respect of Ac.0.16 Decimals out of Ac.0.20 Decimals of land of suit plot No.1746. It is the concurrent findings of the Trial Court and First Appellate Court that, the plaintiff has not purchased the entire Ac.0.20 Decimals of suit plot No.1746 from its owner i.e. from the defendants through registered sale deed dated 29.03.1955 vide Ext.1. For which, as per law, after purchasing part of the suit plot No.1746, the plaintiff has become a co-owner of suit plot No.1746 with the defendants. On this aspect the propositions of law has already been clarified in the ratio of the following decisions: i. JBR Vol-XVII(1982) Part-II Page-43 : Sudam Das vrs. Krushna Mahakur. SA No.38 of 1997 Page 10 of 15 {{ 11 }} “When one of the co-sharers sells his share, the purchaser will become the co-sharer in place of the seller. If he wants to record some particular plot of land in his name, he has to make partition suit to the court or persuade the other co-sharers to distribute the land among themselves.” ii. iii. iv. 2018 (1) Civ.C.C. 546 (Punjab & Haryana): Gurdeep Singh & Ors. Vs. Kulwant Singh. Co-Sharers—Sale of specific portion of land—No co-sharer recorded to be in possession of any specific portion of joint land— Partition between co-sharers not taken place—Sale of even specific portion of land would amount to sell of only a share in the joint land—As vendors were not in exclusive possession of any portion of the joint land, they could not delivery possession of any such portion and recital regarding delivery of possession would create only symbolic possession of purchaser. 2017 (4) Civ.C.C. 014 (H.P): Girdhari Lal Vs. Amin Chand. Co-Sharers—Till the land is partitioned amongst the co-sharers, all the co-sharers are entitled to use every inch of land and they are owners in possess of entire land. 2018 (Supp.) Civ.C.C. 749 (H.P):Ashok Kapoor Vs. Murtu Devi. Co-Sharers—Every co-sharer is owner in possession of every inch of joint estate. 12. When, as per sale deed dated 29.03.1955 vide Ext.1, the plaintiff has not purchased the entire suit plot No.1746, but he has purchased part thereof from some of the joint owners thereof i.e. from Mali & Fagu not from Pari and when the suit plot No.1746 has not been divided between the plaintiff and defendants through partition, then, in view of the ratio of the aforesaid decisions, the plaintiff and the defendants are the co-owners of the suit plot No.1746. SA No.38 of 1997 Page 11 of 15 {{ 12 }} It is the settled propositions of law that, when a purchaser of the joint properties like the plaintiff in this suit/appeal at hand become a co- owner of the suit properties with the defendants, in that case, the purchaser like the plaintiff cannot be entitled for the decree of declaration of his title over the entire suit properties. Because, he (plaintiff) is not the owner of the entire suit properties. For which, the suit for declaration of title filed by the plaintiff over the entire suit properties without filing a suit for partition is not maintainable under law. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions: I. II. III. 2024 (2) CCC 166 (Ori.): Tankadhar Pradhan & Others Vs. Bimala Naik @ Dei (dead) & Others. Specific Relief Act, 1963—Sections 34 & 5—Joint properties— plaintiffs are the purchasers of the share of Dayanidhi Pradhan from the joint properties. So, the plaintiffs are not entitled for the declaration of their title over the entire suit properties and they are also not entitled for the declaration of their possession over the entire suit properties, as the defendants are the co-owners of the suit properties with the plaintiffs. (Para No.12) 2019 (Supp.) Civ.C.C. 586 Madrass: S.Selvarajan (Died) vs R.Saraswathi (Died). Specific Relief Act, Section 34—Suit for declaration-Joint property—Suit for declaration without filing suit for partition in respect of undivided property is not maintainable. (Para No.26) 1999 (2) Civ.C.C. 511 A.P.:K. Venkata Subba Vs. Bairagi Ramaiah. Specific Relief Act, 1963 Section 34—Suit for declaration-Joint property—Relief cannot be granted if disputed property is in excess of title deed of plaintiff. Plaintiff cannot succeed on SA No.38 of 1997 Page 12 of 15 {{ 13 }} weakness of defendant’s case. Plaintiff must establish his own case on the strength of his own title deed. Title deed of plaintiff not extending to disputed site. Plaintiff, therefore, not entitled to relief of declaration and injunction. 13. Here in this suit/Appeal at hand, when the title deed vide Ext.1 (on the basis of which, the plaintiff has prayed for declaration of his title and possession over the entire suit properties) is not extending to the entire suit properties and when, as per law, after purchasing part of the suit properties from some of the joint owners of the suit properties i.e. from some of the defendants, the plaintiff has become a co-owner of suit plot No.1746 with the defendants, then, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the suit for declaration of right, title, interest and possession filed by the plaintiff over the entire suit properties and confirmation of his possession thereon cannot be entertainable under law. Because, the plaintiff has no title and possession over any specific/definite/identified part of the suit properties, until, the same is partitioned and allotment of specific share from the same in his favour through partition. For which, the prayer of the plaintiff for declaration of his right, title, interest and confirmation of his possession over the entire suit properties are not entertainable under law. So, the plaintiff is not entitled for the decree of declaration of his right, title, interest and confirmation of his possession over the SA No.38 of 1997 Page 13 of 15 {{ 14 }} unidentified (undemarcated/unspecified) Ac.0.16 Decimals out of Ac.0.20 Decimals of suit plot No.1746. For which, the plaintiff is not entitled for any relief as prayed for by him. Therefore, the Judgment and Decree passed by the Trial Court in declaring the right, title & interest of the plaintiff over the entire suit properties and confirmation of his possession thereon as well as the decree of declaration of title of the plaintiff by the First Appellate Court in respect of Ac.0.16 Decimals out of Ac.0.20 Decimals of suit plot No.1746 and confirmation of his possession thereon through partial modification of the Judgment and Decree passed by the Trial Court can never be sustainable under law. 14. When, for the reasons stated above, the suit of the plaintiff is not entertainable under law for the reliefs prayed for by him in respect of the entire suit properties, then at this juncture, the entire suit of the plaintiff should have been dismissed by the Trial Court as well as by the First Appellate Court but, the said two courts have not done so. For which, there is justification under law for making interference with the same through this 2nd Appeal filed by the appellants (defendants). 15. Therefore, there is merit in the appeal of the appellants (defendants). The same must succeed. SA No.38 of 1997 Page 14 of 15 {{ 15 }} 16. In result, the 2nd Appeal filed by the appellants (defendants) is allowed on merit, but without cost. The Judgments and Decrees passed by the Trial Court and First Appellate Court in T.S. No.64 of 1983 and T.A. No.26 of 1989 are set aside. 17. The suit be and the same filed by the plaintiff (respondent in this 2nd Appeal) vide T.S. No.64 of 1983 is dismissed on contest against the defendants, but without cost. Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:07.08.2024 (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 16-Aug-2024 14:37:03 SA No.38 of 1997 Page 15 of 15