The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.311 of 1994 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sakila Majhi Shyam Majhi(dead) and others -versus- …. …. Appellant Respondents Appeared in this case:- For Appellant : Mr. S.K. Pattanaik, Advocate appearing on behalf of Mr. P.K. Patnaik, Advocate For Respondents : Ms. J. Sahoo, Advocate appearing on behalf of Mr. M. Mishra, Senior Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 27.06.2024 / date of judgment :12.07.2024 A.C. Behera, J. The 2nd appeal has been preferred against the confirming judgment. 2. The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.25 of 1989 and he was the appellant before the 1st appellate court in the 1st appeal vide T.A. No.08 of 1990. // 2 // 3. The respondents of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.25 of 1989 and they were the respondents before the 1st appellate court in the 1st appeal vide T.A. No.08 of 1990. 4.
Legal Reasoning
The suit of the plaintiff vide T.S. No.25 of 1989 against the defendants was a suit for declaration of title and recovery of possession through mandatory injunction. 5. The case of the plaintiff (appellant in this 2nd appeal) against the defendants (respondents in this 2nd appeal) as per his pleadings in the suit vide T.S. No.25 of 1989 was that, the parties to the suit belong to SANTAL by caste and they are governed by Mitakshara School of Hindu Law. The suit properties were originally belonged to Dharmal Majhi. That Dharmal Majhi died before Sabik Settlement of the year 1927 leaving behind his only son Bhika Majhi. After the death of Dharmal Majhi, the suit properties left by him devolved upon his son Bhika Majhi. So, in the Sabik Settlement of the year 1927, the suit properties were recorded in the name of Bhika Majhi under Sabik Khata No.24. The said Bhika Majhi had no issue of his own, for which, he (Bhika Majhi) adopted his cousin‟s son, i.e., Parau Majhi. Bhika Majhi died leaving behind his adopted son Parau Majhi as his only successor. Therefore, the suit properties left by Bhika Majhi devolved upon his son Parau Majhi. Page 2 of 18 // 3 // Parau Majhi filed a suit vide T.S. No.07 of 1987 in the court of Sub- judge, Mayurbhanj, Baripada praying for declaring him as the adopted son of Bhika Majhi. That suit vide T.S. No.07 of 1987 filed by Parau Majhi was decreed in his favour and he(Parau Majhi) was declared as the adopted son of Bhika Majhi. Parau Majhi had also no natural born child of his own, for which, he(Parau Majhi) adopted plaintiff Sakila Majhi as his son. That Parau Majhi died leaving behind the plaintiff as his only son and successor. For which, after the death of Parau Majhi, the suit properties left by Parau Majhi devolved upon the plaintiff. As such, he(plaintiff) is the exclusive owner over the entire suit properties. But, during the Hal Settlement Operation, the settlement authorities on being influenced by the defendants, erroneously recorded the suit properties in the name of the defendant nos.3, 4, 5, 6, 8 and 9, husband of the defendant no.7 and the plaintiff jointly indicating the name of the plaintiff as the son of his natural father Kandra Majhi. 6. On the basis of the said wrong entry of the names of the defendants in the Hal RoR, they (defendants) tried to occupy the suit properties forcibly and in the year 1989, they (defendants) forcibly cut and removed the paddy crops from the same raised by the plaintiff. So, without getting any way, the plaintiff approached the civil court by filing Page 3 of 18 // 4 // the suit vide T.S. No.25 of 1989 against the defendants praying for a declaration that, he (plaintiff) is the lawful owner over the suit properties and to direct the defendants to deliver the possession of the suit properties to him(plaintiff) along with other reliefs, to which, he (plaintiff) is entitled for. 7. Having been noticed from the trial court in the suit vide T.S. No.25 of 1989, the defendant nos.1, 2, 3, 4, 5, 7 to 9 contested the suit of the plaintiff by filing their written statements jointly and separately taking their stands identically denying the allegations alleged by the plaintiff in his plaint against them stating that, Parau Majhi had never adopted plaintiff as his son at any point of time. The plaintiff is all along living in his natural father‟s house. For which, the plaintiff is not the successor of Parau Majhi and he (plaintiff) has not inherited the properties left by Parau Majhi. As such, the plaintiff has no interest in the suit properties. According to them (defendants), the suit properties have been jointly recorded in the names of the defendant nos.3 to 6 and 8 and 9 along with husband of defendant no.7 and the plaintiff in the Hal Settlement. It was the specific stands of the defendants that, Bhika Majhi died leaving behind one son and one daughter, i.e., Parau Majhi and Malho Majhi(defendant no.9) as his successors. After the death of Bhika Majhi, the suit properties left by him (Bhika Majhi) devolved upon Parau Majhi Page 4 of 18 // 5 // and Malho Majhi(defendant no.9) simultaneously. As Parau Majhi died issueless leaving behind his sister Malho(defendant no.9) as his only successor, then Malho Majhi(defendant No.9) became the owner of the entire suit properties. Accordingly, the defendant no.9 being the exclusive owner over the entire suit properties, she (defendant no.9) sold some portions thereof to defendant nos.1 to 8 by executing and registering different sale deeds and delivering possession thereof. Therefore, the defendants are the owners and they are in possession over the suit properties. For which, the plaintiff has no interest in the suit properties. The further case of the defendants was that, the judgment and decree passed in T.S. No.07 of 1987 declaring the plaintiff as the adopted son of Parau Majhi is not binding upon them(defendants). So, on the basis of that judgment and decree passed in T.S. No.07 of 1987, he (plaintiff) cannot be the lawful successor of Parau Majhi. Therefore, the plaintiff has no right, title, interest and possession over the suit properties. For which, the suit of the plaintiff is liable to be dismissed against them(defendants). 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eleven numbers of issues were framed by the trial court in the suit vide T.S. No.25 of 1989 and the said issues are:- Page 5 of 18 // 6 // I S S U E S 1. Is the suit maintainable? 2. Has the plaintiff any cause of action for the suit? 3. Is the suit barred by limitation? 4. Is the suit barred by waiver and acquisence? 5. Has the court any pecuniary jurisdiction to try the suit? 6. Whether the defendant nos.1 and 2 have purchased the suit land orally by delivery of possession from Parau Majhi on 16.01.1959? 7. Whether the defendants have perfected their title over the suit land by adverse possession? 8. Whether the plaintiff is the adopted son of Late Parau Majhi? 9. Whether the plaintiff has inherited the suit land and other lands of Late Parau Majhi? 10. Whether the defendant no.9 has inherited the property of Late Parau Majhi as his sister and whether she had sold some of the lands to the different persons? 11. Whether T.S. No.7/87 is binding on the defendants, who were not parties and proforma defendants? 9. In order to substantiate the aforesaid reliefs sought for by the plaintiff in the suit vide T.S. No.25 of 1989 against the defendants, he (plaintiff) examined two witnesses from his side including him as P.W.1 and relied upon the documents vide Exts.1 to 5. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined four witnesses from their side including the defendant nos.1, 8 and 9 as D.Ws.1, 2 and 3 respectively and relied upon the documents vide Exts.A to D on their behalf. Page 6 of 18 // 7 // 10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the trial court in all the issues against the plaintiff and in favour of the defendants, the trial court dismissed the suit of the plaintiff vide T.S. No.25 of 1989 on contest against the defendants with cost, as per its judgment and decree dated 28.04.1990 and 10.05.1990 respectively assigning the reasons that, the plaintiff is not the adopted son of Late Parau Majhi and the judgment and decree passed in T.S. No.07 of 1987 declaring the plaintiff as the adopted son of Parau Majhi is not binding upon the defendants and the defendant No.9 being the daughter of Bhika Majhi and sister of Parau Majhi, she (defendant no.9) had become the owner over the entire suit properties after the death of Parau Majhi, because, the suit properties left by Bhika Majhi devolved upon Parau Majhi and his sister(defendant no.9) simultaneously and when Parau Majhi died issueless, then, his share in the suit properties devolved upon his sister, i.e., defendant no.9 and she (defendant no.9) being the owner of the entire suit properties sold some portions thereof to the defendant nos.1 to 8. For which, the plaintiff is not entitled for the decree of declaration of his title over the Page 7 of 18 // 8 // suit properties and he(plaintiff) is also not entitled for the decree of recovery of possession of the suit properties against the defendants. 11. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.25 of 1989 passed by the trial court, he(plaintiff) challenged the same preferring the 1st appeal vide T.A. No.08 of 1990 being the appellant against the defendants arraying them (defendants) as respondents. 12. After hearing from both the sides, the 1st appellate court dismissed that 1st appeal vide T.A. No.08 of 1990 of the plaintiff on contest against the defendants as per its judgment and decree dated 20.08.1994 and 03.09.1994 respectively accepting the findings and observations made by the trial court against the plaintiff. 13. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal vide T.A. No.08 of 1990 of the plaintiff passed by the 1st appellate court, he(plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants arraying them (defendants) as respondents. 14. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.,:- “(i) Whether the courts below are justified in holding that, the judgment and decree passed in T.S. No.07 of 1987 could not bind defendant-respondent nos.1 and 2, when the said Page 8 of 18 // 9 // decision declaring the status of plaintiff/appellant as an adopted son of Parau Majhi is a judgment in rem and binding against all, even if, defendant/respondent nos.1 and 2 are not party to that proceeding? the suit (ii) When the defendant nos.1 and 2 alleges to have defendant/respondent purchased no.9(Malho), who was the party and defendant in the said suit, then whether the courts below correct in holding that, the said judgment is a judgment-in-personam and hence, the same is not binding against the defendant nos.1 and 2? from land (iii) Whether the courts below are justified in holding that, the defendants have acquired title over the suit land by way of adverse possession in absence of any proof regarding animus to possess the said land adversely and in the absence of any specific time as to when they started possessing the said land adversely? (iv) Whether the courts below are justified in holding that „Malho‟ (defendant no.9), who is the sister of Parau has inherited facts and circumstances of the case as per Hindu Succession Act, 1956, when the parties belong to Schedule Tribe Community?” the properties under the peculiar 15. As, the above four formulated substantial questions of law are inter-linked having ample nexus with each other according to the findings and observations made by the trial court and 1st appellate court in their respective judgment and decree, then, in order to have the just decision of this 2nd appeal, the above four formulated substantial questions of law are taken up together analogously for their discussions hereunder:- It is the undisputed case of the parties that, Bhika Majhi was the owner of the suit properties. Both the parties, i.e., plaintiff and defendants are claiming their title and possession over the suit properties through Bhika Majhi. Page 9 of 18 // 10 // When the plaintiff has claimed the suit properties as the grand-son of Bhika Majhi stating him as the son of Parau Majhi, at the same time, the defendant no.9 has claimed the suit properties as the daughter of Bhika Majhi. The plaintiff has relied upon the judgment and decree passed in T.S. No.07 of 1987(Ext.4) in order to establish him as the adopted son of Parau Majhi, to which, the defendants are disputing on the plea that, the said judgment and decree passed in T.S. No.07 of 1987(Ext.4) is not binding upon them. It appears from the Ext.4 that, the defendants nos.3, 4, 5, 6, 7, 8 and 9 in the present vide T.S. No.25 of 1987 were the defendants(parties) in that suit vide T.S. No.07 of 1987 filed by the plaintiff and that suit vide T.S. No.07 of 1987 has been decreed ex parte against all the defendants including defendant nos.3, 4, 5, 6, 7, 8 and 9, wherein the plaintiff Sakila Majhi has been declared as the adopted son of Parau Majhi as per its ex parte judgment and decree dated 31.03.1988 and 15.04.1988 respectively. Accordingly, the said judgment and decree passed in T.S. No.07 of 1987 vide Ext.4 declaring the plaintiff as the adopted son of Parau Majhi has been passed in presence of the defendant nos.3, 4, 5, 6, 7, 8 and 9. That judgment and decree passed in T.S. No.07 Page 10 of 18 // 11 // of 1987 vide Ext.4 in favour of the plaintiff has not been varied/altered or set aside till yet by any competent court of law. 16. The law regarding the enforceability and binding effect of an ex parte judgment and decree like the decree passed in T.S. No.07 of 1987 vide Ext.4 has already been clarified by the Hon‟ble Courts and Apex Court in the ratio of the following decisions:- (i) 96(2003) CLT-151: Kunjabihari Pradhan vrs. Jayanti Pradhan—Judgment—Binding effect of—A judgment delivered by a Court between the parties on relevant issue is binding on the parties, so long as that judgment and decree holds the field. In that context, it is immaterial, whether that judgment was passed on contest or ex parte.(Para-12) So, in view of the principles of law enunciated in the ratio of the aforesaid decision of the Hon‟ble Courts, the judgment and decree passed in T.S. No.07 of 1987 vide Ext.4 declaring the plaintiff as the adopted son of Parau Majhi is binding upon the defendant nos.3, 4, 5, 6, 7, 8 and 9 as per Section 35 of the Specific of Relief Act, 1963, which is also ultimately binding upon the defendant nos.1 and 2, even though they were not the parties to that suit. Because, they (defendant nos.1 and 2) have stepped their shoes into the suit through defendant no.9 being the vendees of the suit properties from defendant no.9. The defendant nos.3 to 8 are also the vendees of the suit properties from the defendant no.9. Page 11 of 18 // 12 // Therefore, the findings and observations made by the trial court in issue no.11 that, it is not established by the plaintiff that, he is the adopted son of Parau Majhi is held to be unsustainable under law. For which, in other words, it is held that, the plaintiff has lawfully established as per its unchallenged judgment and decree passed in T.S. No.07 of 1987 vide Ext.4 that, he is the adopted son of Parau Majhi. 17. When, there is no dispute that, the defendant no.9(Malho Majhi) is not the daughter of Bika Majhi, then automatically, it is established that, the father of the plaintiff, i.e., Parau Majkjhi and defendant no.9(Malho Majhi) are the son and daughter of Bhika Majhi. For which, as per law, after the death of Bhika Majhi, the suit properties left by him devolved upon father of the plaintiff, i.e., Parau Majhi and defendant no.9-Malho Majhi simultaneously, even though, they belong to Scheduled Tribe Community. Because, it is the own case of the appellant(plaintiff) as per Para no.1 of his plaint that, “they(parties) belong to Santal by caste and are Hindus and they are governed by Mitakshara School of Hindu Law,” to which, the defendants have not denied. It has been observed by our parent High Court, that is Patna High Court in Langa Manjhi and others vrs. Jaba Majhian and others reported in AIR 1971 (Patna)-185 (at Para Nos.10 to 18), taking the Section 2(2) of the Hindu Page 12 of 18 // 13 // Succession Act, 1956 into consideration as per the available materials in the record of that case that, “Scheduled Tribe SANTALS have become sufficiently Hinduised, for which, they are governed by the Hindu Law in the matter of succession and inheritance and not by Santhal Tribal Law.” In Lobishwar Manjhi vrs. Pran Manjhi reported in (2000) 8 SCC 857(at Para no.6), the Apex Court after interpreting the Section 2(2) of the Hindu Succession Act, 1956 has held that, “though the parties belong to SANTAL TRIBE, but, they are Hinduised following the Hindu Traditions, for which, Sub-section (2) of Section 2 of the Hindu Succession Act, 1956 will not apply to exclude them (parties) from application of the Hindu Succession Act, 1956 in the matter of their succession and inheritance.” 18. Here, in this suit/appeal at hand, when, the parties have admitted in their respective pleadings that, though they belong to SANTAL by caste, they are Hindus and they are guided by Mitakshara School of Hindu Law, then in view of the principles of law enunciated in the ratio of the above decisions of Hon‟ble courts and Apex Court, Section 2(2) of the Hindu Succession Act, 1956 shall not apply to exclude them(parties) from application of Hindu Succession Act, 1956 in the matter of succession and inheritance. Therefore, it is held that, though, they(parties) to the suit belong to Scheduled Tribe Community, having their Sub-caste SANTAL, but, Hindu Succession Act, 1956 is fully applicable to them in the matter of their succession and inheritance. Page 13 of 18 // 14 // So, the properties left by Bhika Majhi devolved upon his son and daughter, i.e., Parau Majhi(father of the plaintiff) and Malho Majhi(defendant no.9) simultaneously. For which, Parau Majhi and Malho Majhi entitled for half share each in the suit properties after the death of Bhika Majhi. When Parau Majhi died leaving behind the plaintiff (Sakila Majhi) as his son and successor, then his half share in the suit properties devolved upon the plaintiff(Sakila Majhi) Accordingly, after the death of Bhika Majhi, Parau Majhi and defendant no.9 were the joint owners of the suit properties and after the death of Parau Majhi, his adopted son, i.e., plaintiff and defendant no.9 had become joint owners of the suit properties. Section 44 of the T.P. Act, 1882 authorizes a co-owner to alienate his/her share in the joint and undivided properties. When, the defendant no.9 has alienated some parts of the suit properties to the defendant nos.1 to 8 and when the defendant no.9 had her half share in the suit properties, then the said alienations of the suit properties made by the defendant no.9 in favour of other defendants cannot be held as illegal and void. 19. On this aspect, the propositions of law has already been clarified by the Hon‟ble Courts and the Apex Court in the ratio of the following decisions:- Page 14 of 18 // 15 //
Legal Reasoning
(i) 1974(I) C.W.R. 222 : Gananath Sahu & Another Vs. Smt. Bulli Sahu & Others (Para No.10), AIR, 1973(SC) 2451 : Gorakh Nath Dube Vs. Hari Narin Singh & Others, 2009(I) CLR 560 : Harekrushna Mahakud Vs. Radhanath Mahakud & Others—T.P. Act, 1882, Section 54—Transfer of property more than the transferor‟s interest in lands jointly held with others is not invalid in toto. It would be valid and operative to the extent of the transferor‟s interest in the lands. (ii) vrs. Guna Mohanty & Others(Para No.11. 116(2013) CLT 209 : Manoj Kumar Nayak & Another 2009(I) CLR-560 :Harekrushna Mahakud vrs. Radhanath Mahakud and others—T.P. Act, 1882, Section 54—Sale of joint property by one co-owner—Validity thereof—It is well settled that, transfer by one of the co-owners remains valid to the extent of the share of the transferor. (iii) 2024(2) CCC(Orissa) 172—Tankadhar Pradhan and others vrs. Bimala Naik @ Dei (dead) and others—T.P. Act, 1882 Section 54—Alienation by a co-owner (Co-sharer) shall be valid to the extent of his/her share. (iv) 2010 (IV) Civ. C.C. 05 (Punjab & Haryana) : Balwinder Singh vrs. Gurcharan Singh—T.P. Act, 1882, Section 54— Alienation out of the joint property by a co-sharer would amount to alienation of the property out of the share. Even, the alienation of any specific Khasra number or specific portion, the same amounts to alienation of the share, which is subject to adjustment at the time of partition. JBR Vol-XVII(1982) Part-II Page-43 : Sudam Das vrs. (v) Krushna Mahakur. “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. No particular plot of land can be mutated in his name, unless other co-sharers consent to it or a decree from the civil court is obtained indicating his share.” 20. When, the defendant no.9 being the co-sharer of the suit properties with the plaintiff, she(defendant no.9) has alienated some portions of the Page 15 of 18 // 16 // suit properties to the defendant no.9, then, in view of the propositions of law enunciated in the ratio of the aforesaid decisions, the plaintiff as well as the defendants are the co-sharers (co-owners) of the suit properties as per law. 21. Here, in this appeal at hand, when the plaintiff has prayed for declaration of his right, title and interest over the entire suit properties and also has prayed for mandatory injunction against the defendants in order to direct them (defendants) to deliver the possession of the entire suit properties to him(plaintiff) and when as per the discussions and observations made above, it has been held that, the defendant nos.1 to 9 are the co-sharers(co-owners) of the suit properties with the plaintiff, then at this juncture, the plaintiff is not entitled for the decree for declaration of his title over the entire suit properties. 22. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) 2019(Suppl.) Civil Court Cases-586 (Madras) : S. Selvarajan (died) and others vrs. R. Saraswathi (died) and others—Specific Relief Act, 1963, Section 34—Suit for declaration—Joint property—Suit for declaration without filing suit for partition, in respect to undivided properties is not maintainable. 23. Likewise, the plaintiff is also not entitled for the decree of recovery of possession of the suit properties against the defendants. Page 16 of 18 // 17 // Because, as per law, one co-owner is to be treated as having his/her right in every part and parcel of the joint properties. When as per law, the defendants have their legal right to possess the suit properties and they are in possession over the same being the co- owners with the plaintiff, then at this juncture, the plaintiff is also not entitled to get the decree for recovery of possession of the suit properties from the defendants, as they (defendants) are the co-owners of the suit properties with the plaintiff. For which, the judgment and decree passed by the trial court as well as 1st appellate court in dismissing the suit of the plaintiff cannot be held erroneous, though the part finding of the trial court as well as the 1st appellate court that, the plaintiff is not the adopted son of Parau Majhi has been held as unsustainable under law. Because, it has been held above that, the plaintiff is the adopted son of Parau Majhi, in view of the judgment and decree passed in T.S. No.07 of 1987 (Ext.4), as in that, judgment and decree, it has been declared that, the plaintiff is the adopted son of Parau Majhi, which is fully binding upon the defendants. 24. As per the discussions and observations made above, though the part finding of the trial court and 1st appellate court concerning the finding that, the plaintiff is not the adopted son of Parau Majhi is interferable, but the final result of the trial court and 1st appellate court Page 17 of 18 // 18 // regarding the dismissal of the suit of the plaintiff is not interferable. So, the appeal of the appellant(plaintiff) shall succeed in part. 25. In result, the 2nd appeal filed by the appellant(plaintiff) is allowed in part. 26. The judgment and decree of the dismissal of the suit vide T.S. No.25 of 1989 passed by the trial court and the confirmation of the same by the 1st appellate court refusing the prayers of the appellant/plaintiff for declaration of his exclusive title over the entire suit properties and recovery of possession of the suit properties against the respondents/defendants are confirmed. Whereas, the part finding of the trial court and the confirmation of the same by the 1st appellate court in respect of issue no.8 that, the appellant/plaintiff has failed to prove that, he is the adopted son of Late Parau Majhi is set aside and held that, the plaintiff is the adopted son of Parau Majhi. Judge Orissa High Court, Cuttack The 12th of July, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 16-Jul-2024 11:02:07 Page 18 of 18