The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.332 of 2006 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Bishnu Charan Sahoo -versus- Tukumari Sahoo and others …. …. Appellant Respondents Appeared in this case:- For Appellant For Respondents : : Mr. P.K. Sahoo, Advocate None Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 29.01.2024 / date of judgment :14.03.2024 A.C. Behera, J. The 2nd 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.94 of 2002 and he was the respondent no.1 before the 1st appellate court in the 1st appeal vide R.F.A. No.72 of 2002. 3. The respondents of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.94 of 2002 and they were the // 2 // appellants and respondent nos.2 and 3 before the 1st appellate court in the 1st appeal vide R.F.A. No.72 of 2002. 4. The suit of the plaintiff(who is the appellant in this 2nd appeal) before the trial court in the suit vide T.S. No.94 of 2002 against the
Legal Reasoning
defendants(those are the respondents in this 2nd appeal) was a suit for declaration and eviction. 5. As per the case of the plaintiff before the trial court in the suit vide T.S. No.94 of 2002, Kurupa Sahoo was their common ancestor. The said Kurupa Sahoo died leaving behind his four sons, namely, Banamali, Dhani, Ghana and Chana. The 1st son of Kurupa Sahoo, i.e, Banamali Sahoo died in the year 1950 leaving behind his only daughter Lakhi. The 2nd son of Kurupa Sahoo, i.e. Dhani Sahoo died in the year 1940 leaving behind his widow wife Baja Bewa and one son, namely, Madana. Madana Sahoo died in the year 1983 leaving behind his widow wife Saraswati and two daughters, namely, Sukumari and Tukumari, i.e., defendant nos.3 and 1. The 3rd son of Kurupa Sahoo, i.e., Ghana Sahoo died leaving behind his only son Bishnu Sahoo(plaintiff). The 4th son of Kurupa Sahoo, i.e., Chana died leaving behind his two sons, namely, Basu and Kashi. // 3 // 6. The family pedigree/genealogy of Kurupa Sahoo as described above is depicted hereunder for an instant reference:- Kurupa _________________________________ Banamali Dhani Ghana Chana Lakhi Baja (wife) (widow) Madan ________________ Saraswati(wife) Bishnu Basu Kasi (plaintiff) _______________________ Sukumari(d-3) Tukumari(d-1) 7. The suit properties were the joint and undivided properties of the aforesaid four branches, i.e., the Branches of Banamali, Dhani, Ghana and Chana. Therefore, the successors of each branch had 1/4th share in the suit properties. The suit Plot No.320 is Ac.0.06 decimals, in which, the members of each branch had 1/4th share, i.e. Ac.0.015 decimals. The plaintiff belong to the branch of Ghana, for which, he had 1/4th share in the suit properties. The plaintiff has purchased the 1/4th share from the members of the branch of Banamali Sahoo, i.e., from Lakhi Sahoo and her husband through registered sale deed dated 17.01.1983. The plaintiff has also purchased the 1/4th of share from the members of the branch of Chana Sahoo through registered sale deed dated 30.07.1976 executed by // 4 // Basu Sahoo and Kashi Sahoo. Like-wise, the plaintiff has also purchased 1/4th share from the members of branch of Dhani Sahoo through registered sale deed dated 04.06.1981, i.e., from Baja Bewa, Saraswati Bewa, Tukumari and Sukumari. Tukumari and Sukumari are defendant nos.3 and 1 in the suit vide T.S. No.94 of 2002. 8. As, on the date of execution of the sale deed dated 04.06.1981, defendant nos.3 and 1 were minors, for which, their mother Saraswati Bewa had executed that sale deed for herself and as the mother guardian of minor defendant nos.3 and 1 and the said sale was executed for the legal necessity. After executing and registering the sale deed on dated 04.06.1981 and after receiving the consideration amount thereof from the plaintiff, the vendors thereof, i.e., the members of the branch of Dhani had delivered possession of their 1/4th share in the suit properties in favour of the plaintiff. Accordingly, the plaintiff has purchased the shares of three branches, i.e., the shares of the branches of Banamali, Chana and Dhani through registered sale deeds dated 17.01.1983, 30.07.1976 and 04.06.1981. After purchasing the shares of the aforesaid three branches, the plaintiff had become exclusive owner over the entire suit properties because, he had 1/4th share and he purchased in total 3/4th shares from the members of the branches of Banamali, Chana and Dhani. As such, the plaintiff being the exclusive owner of the suit properties, he (plaintiff) alone had/has been possessing the same exclusively and was/is paying // 5 // rent to Government regularly through proper rent receipts. The defendants have no manner of right, title, interest and possession over the suit properties. The defendants are strangers to the suit properties. The marriages of the defendant nos.1 to 3 were performed since long back and they (defendant nos.3 and 1) are residing in their respective in-laws houses. The plaintiff has his own house over the suit properties. But, on dated 15.06.1998, the defendant nos. 1 and 2 being the wife and husband respectively forcibly entered into the suit properties and resided inside the thatched house standing thereon, which was constructed by the plaintiff by getting the support of local unsocial persons. In spite of repeated requests of the plaintiff, the defendant nos.1 and 2 did not vacate the said thached house on the suit properties and ultimately, on 25.08.1998, the defendant nos.1 and 2 refused to vacate the same. So, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.94 of 2002 against the defendants praying for the decree of declaration of his right, title, interest and possession over the suit land and so also for the decree of mandatory injunction against the defendant nos.1 and 2 in order to direct the defendant nos.1 and 2 to vacate the suit premises and to deliver the possession of thached Chalia on the suit land to the plaintiff along with other reliefs, to which, he(plaintiff) is entitled for. // 6 // 9. Having been noticed from the trial court in the suit vide T.S. No.94 of 2002, the defendant nos.1 and 2 contested the suit of the plaintiff by filing their written statement jointly, but, whereas, the defendant no.3 was set ex parte. 10. In the joint written statement of the defendant nos.1 and 2, they denied the above so-called purchase of their shares in the suit properties by the plaintiff and as well as the possession of the entire suit properties by the plaintiff as stated by the plaintiff in his plaint. The specific stands of the defendant nos.1 and 2 in their written statement were that, the suit of the plaintiff is not maintainable. The plaintiff has no cause of action for filing the suit against them (defendants). The suit of the plaintiff is barred by law of limitation. The suit of the plaintiff is bad for non-joinder and mis-joinder of parties. 11. It was the specific case of the defendant nos.1 and 2 was that, the suit Plot No.320 under Khata No.201, Ac.0.06 decimals was originally belonged to Banamali Sahoo, Dhani Sahoo, Ghana Sahoo and Chana Sahoo and the said Banamali Sahoo, Dhani Sahoo, Ghana Sahoo and Chana Sahoo had 1/4th share each in the same. The above four sons of Kurupa Sahoo, i.e., Banamali Sahoo, Dhani Sahoo, Ghana Sahoo and Chana Sahoo had amicably/mutually distributed the suit Plot No.320 Ac.0.06 decimals between them for their convenience without any metes // 7 // and bounds partition. The plaintiff has not purchased the 1/4th share of the defendant no.1 and 3’s branch through registered sale deed dated 04.06.1981 from their widow grand-mother and mother, i.e., from Baja Bewa and Saraswati Bewa. Because, Baja Bewa and Saraswati Bewa as well as defendant nos.1 and 3 have neither executed nor transferred their 1/4th share in the suit Plot No.320 to the plaintiff by executing and registering any sale deed on dated 04.06.1981. The plaintiff has no thatch house of his own over the suit properties. The defendants are not the strangers to the suit properties. Because, the suit properties are the ancestral properties of the defendant nos.1 and 3, in which, they have definite share. Even after marriage of the defendant no.1, she (defendant no.1) along with her husband, i.e. defendant no.2 are residing in the ancestral house of the defendant no.1, i.e., on the suit land. Because, the defendant no.2 has been residing in the suit house as an ill attom son-in- law of Saraswati Bewa. They(defendant nos.1 and 2) were looking after their widow mother and widow grand-mother Saraswati Bewa and Baja Bewa till their respective deaths. So, the plaintiff is not entitled for the 1/4th share of the branch of the defendant nos.1 and 3 in the suit properties. When the defendants are possessing their 1/4th share in the suit properties and they are residing in the same and the plaintiff has not purchased the share of the members of the branch of defendant nos.1 and 3 in the suit Plot No.320 either from Baja Bewa or from Saraswati Bewa // 8 // or the defendant nos.1 and 3 and when neither Baja Bewa, Saraswati Bewa nor the defendant nos.1 and 3 have transferred their 1/4th share in the suit properties through any sale deed to the plaintiff and when the defendant nos.1 and 3 are continuing as the co-owners of the suit properties and when they are in possession over their 1/4th share in the suit properties, then, the suit of the plaintiff for declaration of his exclusive right, title, interest and possession as well as for decree of mandatory injunction for eviction of defendants from the suit properties is not entertainable under law. Therefore, the suit of the plaintiff is liable to be dismissed with cost against them (defendants). 12. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether five numbers of issues were framed by the trial court in the suit vide T.S. No.94 of 2002 and the said issues are:- I S S U E S (i) Whether the suit is maintainable? (ii) Whether there is cause of action for the plaintiff to bring this suit against the defendants? (iii) Whether the plaintiff has got right, title, interest and possession over the suit property? (iv) Whether the plaintiff is entitled to the reliefs, prayed for? (v) To what other relief, if any, the plaintiff is entitled to? // 9 // 13. In order to substantiate the aforesaid reliefs sought for by the plaintiff in the suit vide T.S. No.94 of 2002 against the defendants, he (plaintiff) examined himself as P.W.1 and relied upon the documents vide Exts.1 to 7. But, on the contrary, in order to nullify/defeat the suit of the plaintiff, the contesting defendant nos.1 and 2 examined three witnesses on their behalf including the defendant no.1 as D.W.1 and relied upon the documents vide Exts.A to C. 14. 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 basing upon the findings and observations made by the trial court in suit vide T.S. No.94 of 2002 in favour of the plaintiff and against the defendants, the trial court decreed the suit of the plaintiff on contest against the defendant nos.1 and 2 and ex parte against the defendant no.3 but, without cost and declared the right, title, interest of the plaintiff over the suit properties and directed the defendant nos.1 and 2 to give the delivery of vacant possession of the suit properties along with thatched chalia standing thereon within two months to the plaintiff as per its judgment and decree dated 16.07.2002 and 30.07.2002 respectively, assigning the reasons that, the grand-mother and mother of defendant nos.1 and 3, i.e., Baja Bewa and Saraswati Bewa along with defendant // 10 // nos.1 and 3 have duly executed the sale deed dated 06.04.1981 vide Ext.3 in favour of the plaintiff, through which, they have transferred their 1/4th share in the suit Plot No.320 in favour of the plaintiff, for which, the defendants have no interest at all over the suit properties and the entire suit properties, i.e., the entire suit Plot No.320 is under the exclusive possession of the plaintiff and he(plaintiff) is the exclusive owner of the entire suit properties by purchasing the share of three branches and as he (plaintiff) has been dispossessed forcibly by the defendant nos.1 and 2 from the part of the suit properties, i.e., from the shares of Dhani’s branch on 15.06.1998, for which, he (plaintiff) is entitled for the decree of declaration of his right, title, interest and possession over the entire suit properties and he(plaintiff) is also entitled for the decree of eviction against the defendant nos.1 and 2. 15. On being aggrieved with the aforesaid judgment and decree dated 16.07.2002 and 26.07.2002 respectively passed by the trial court in the suit vide T.S. No.94 of 2002 in favour of the plaintiff and against the defendants, the defendant no.1 challenged the same by preferring the 1st appeal being the appellant against the plaintiff by arraying him (plaintiff) as respondent no.1 and also arraying the defendant nos.2 and 3 as proforma respondent nos.2 and 3 respectively. 16. After hearing from both the sides, the 1st appellate court allowed that 1st appeal vide RFA No.72 of 2002 of the defendant no.1 in part on // 11 // contest and modified the judgment and decree of the trial court passed in T.S. No.94 of 2002 and declared the right, title, interest and possession of the plaintiff over Ac.0.045 decimals of land out of AC.0.06 decimals of land of suit Plot No.320 and refused the prayer of the plaintiff for declaration of his right, title, interest and possession over the rest Ac.0.015 decimals of land of suit Plot No.320 by clarifying that, the sale deed dated 04.06.1981 vide Ext.3 said to have been executed by Baja Bewa and Saraswati Bewa for them and on behalf of minor defendant nos.1 and 3 in respect of the suit properties in favour of the plaintiff is void and inoperative and the said deed vide Ext.3 does not confer any title in respect of the shares of the defendant nos.1 and 3 in the suit plot, i.e., in respect of Ac.0.015 decimals of land in favour of the plaintiff, for which, the plaintiff is not entitled to get the decree of recovery of possession against the defendants. Therefore, the defendant nos.1 and 2 cannot be directed to give the delivery of possession of the suit properties under their possession to the plaintiff and accordingly, the 1st appellate court passed the aforesaid judgment and decree in the 1st appeal vide R.F.A. No.72 of 2002 on dated 21.08.2006 and 04.09.2006 respectively in favour of the defendants and against the plaintiff assigning the reasons that, when the executants of the so-called sale deed dated 04.06.1981 vide Ext.3, i.e., Baja Bewa and Saraswati Bewa are illiterate widow ladies and when the defendants are seriously disputing / // 12 // denying the execution of the said sale deed vide Ext.3 by Baja Bewa, Saraswati Bewa and well as by defendant nos.1 and 3, then, at this juncture, heavy burden was lying upon the plaintiff to prove the due and proper execution of the said sale deed vide Ext.3 by the so-called executants thereof in respect of the suit properties in his favour as per law, but, the plaintiff has totally failed to discharge his such burden. So, for the failure by the plaintiff in proving the due and proper execution of that sale deed vide Ext.3 in his favour, it was held by the 1st appellate court that, the so-called executants of the sale deed vide Ext.3, i.e., Baja Bewa, Saraswati Bewa as well as two the minors, i.e. defendant nos.1 and 3 had never executed that sale deed within their knowledge for the transfer of their share in the suit properties in favour of the plaintiff. For which, the said sale deed dated 04.06.1981 vide Ext.3 was held as void and inoperative by the 1st appellate court. 17. On being aggrieved with the aforesaid judgment and decree dated 21.08.2006 and 04.09.2006 respectively passed by the 1st appellate court in R.F.A. No.72 of 2002 against the plaintiff and in favour of the defendants, he(plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants by arraying them(defendants) as respondents. 18. This 2nd appeal was admitted on formulation of the following substantial questions of law that is:- // 13 // (i) Whether the lower appellate court is justified in setting aside the judgment of court below with respect to the Ext.3(sale deed dated 04.06.1981), when defendant no.3 has not challenged the sale deed dated 04.06.1981 and when the judgment, the decree of the trial court is joint and indivisible? (ii) Whether the court below is correct in saying that the minor on attaining majority was not required to file the suit within three years of attaining majority under Article 60 of the Limitation Act? (iii) Whether the lower appellate court is justified in saying that, Ext.3 (sale deed dated 04.06.1981) was invalid and void, the same being without leave of District Judge, as required under law and when the same is not supported by legal necessity? 19. I have already heard from the learned counsel for the appellant only as none appeared from the side of the respondents for hearing of the appeal. 20. It appears from the sale deed dated 04.06.1981 vide Ext.3 that, Baja Bewa, Saraswati Bewa and defendant nos.1 and 3 are the executants of that sale deed vide Ext.3. The minor executants thereof, i.e., defendant nos.1 and 3 have been represented through their mother guardian Saraswati Bewa. In the pleadings and evidence, the defendants have seriously disputed the execution of the above sale deed dated 04.06.1981 vide Ext.3 by Baja Bewa, Saraswati Bewa and the defendant nos.1 and 3. 21. It is the admitted case of both the sides and it is also forthcoming from the deed vide Ext.3 itself that, Baja Bewa and Saraswati Bewa both // 14 // are old illiterate and widow ladies and they do not know read and write. They also do not know to put their signatures. 22. It is the settled propositions of law that, in the matter of execution of any deed of conveyance, the requirements of law in case of Paradanashin lady also extend to an illiterate lady. So, when, there is execution of any sale deed like the so-called sale deed vide Ext.3 from the illiterate ladies like Baja Bewa and Saraswati Bewa, heavy burden lies upon the beneficiary of the deed for proving due execution of that deed by the illiterate lady vendors. The mere evidence that, the contents of the sale deed were read over and explained to the illiterate lady vendors and thereafter, they put their L.T.Is. thereon is not sufficient for proving due execution of the sale deed by them. Because, when one, who wants to rely on a document executed by any illiterate lady, he must establish that, the contents of the said document were read over and explained to that illiterate lady-executant and the signature or thumb mark was appended to it by that lady- executant after understanding the purpose and all the contents of the document/deed. 23. On that aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- // 15 //
Legal Reasoning
(i) 2014(II) OLR-283 : Apili Padhi vrs. Durga Prasad Padhi and another by referring AIR 1963(S.C.) 1203 : Smt. Kharbuja Kuer vrs. Jagbahadur Rai and others, AIR 1986(Orissa)-53 : Narayan Mishra and others vrs. Champa Dibya and others, 1993(II) OLR 568 : Kuma Dei vrs. Md. Abdul Latif—Indian Evidence Act, 1872—Section 101— Deeds—In the matter of execution of deeds of conveyance, the requirement of law in the case of a paradanashin lady also extends to an illiterate lady. In the case of execution of a deed by a paradanashin or illiterate lady, the burden of proof rests not with those, who attack, but, with those who rely on it. The mere evidence of that, contents of sale deed were read over and explained to the vendor and thereafter, she put her LTI is not sufficient to prove due execution of the sale deed, which has been executed by an illiterate women.(Para- 8). It is a special burden to prove that, the deed writer had made an endorsement on the sale deeds that, he had read over and explained the contents of the deeds and the executant put her LTIs admitting that, the contents of deeds were in accordance with her instructions.(Para-9) (ii) 2019(4) Civil Court Cases-294 (H.P.) : Smt. Mahesha Devi and others vrs. Smt. Satya Devi and others—Illiterate women—Rules regarding transactions by a paradanashin lady are equally applicable to an illiterate and ignorant women though she may not be a paradanashin lady. (Paras-17 to 19) (iii) 63(1987) CLT-567 : Musi Dei vrs. Labanya Bewa— Evidence Act, 1872—Section-101—Proof of execution of documents taken from paradanashin are equally applicable to documents taken from illiterate woman. 2018(1) CLR-1200 : Shankarshan Patel (since dead) (iv) through L.Rs. and Another vrs. Ashok Kumar Patel— Paradanashin ladies and poor ladies—The rule applicable to Pardanashin ladies on the ground of their ignorance and illiteracy should apply to the case of a poor lady, who is equally ignorant and illiterate, but, is not pardanashin.(Para 13) // 16 // (v) 2009(II) Civil Law Times (S.C.)-35 : Bellachi vrs. Pakeeram—SALE—Execution of—Illiterate paradanashin woman. Burden would be on vendee to prove that, deed of sale was genuine document.(Para-16) (vi) 2021(2) Civil Court Cases-749(Telengana) : Ameena Begum vrs. M/s. Koushik Co-op Housing Society and another—Evidence Act, 1872—Section 102—Burden of proof—Document executed by paradanashin women—It is presumed that, document executed by paradanashin women is not within her knowledge and burden of proving the same lies on person, who relies on that document. (Para-14) (vii) 2017(1) CLR-1218 : Rada Jagga Rao vrs. Rada Kakamma and others—Indian Evidence Act, 1872— Section 101—Burden of proof—In case of execution of a document by Paradanashin women or illiterate women—The burden is on the person who seeks to sustain a document executed by Paradanashin lady that, she executed it with true understanding of mind—Further it should be established that, it was not only her physical act, but also her mental act. (viii) 120(2015) CLT—148 : Sarojini Dei alias Das and Ors. vrs. Satya Prasad Pattnaik & Ors.—Indian Evidence Act—Section 101—Plaintiff, aged about 90 years, an illiterate Paradanashin lady—Defendant No.1(son of the Plaintiff) managed to execute the deed of partition on the pretext of executing a deed of power of attorney —Vendee must prove that, the contents of the documents were read over and explained to the executants —Neither the scribe nor any witness of the document examined to prove due execution of the deed of partition by the Plaintiff and the Plaintiff having fully understood its nature and contents affixed her signature —Held, the impugned Judgment dismissing the suit is set aside —The Suit of the Plaintiff is decreed declaring the partition deed as non-est in the eye of law.(paras 21 to 23) (ix) 2018(I) OLR-406 : Jagi Majhi(since dead) through L.Rs. vrs. Srimat Hansda, 1988(I) OLR-270 : Parbati vrs. Baidehi—Document—If a document is executed by an illiterate and/or Purdanashin women, onus is heavy on the // 17 // person getting advantage under the document to establish that, the contents of the document were read over and explained to her, she understood them and had independent advice at the relevant time and that the execution of the document was not only a physical act, but also a mental act. (Para – 12) (x) AIR 1990 (Ori)- 64 : Rankanidhi Sahu vrs. Nandakishore Sahu—Evidence Act, 1872—Sections 101 to 104—Execution of document—Execution of documents taken from Pardanashin women are equally applicable to documents taken from illiterate women. In a case of execution of a document by an illiterate Paradanasin woman, burden is heavy on the person getting advantage under the document to establish that the contests of the document were read over and explained to her, she understood them, she had independent advice at the relevant time and that the execution of the document was not only a physical act, but also a mental act. (xi) AIR 1983(Orissa)-172 : Brundaban Misra v. Iswar Swain—Further in a case of execution of a document by an illiterate Paradanashin woman, burden is heavy on the person getting advantage under the document to establish that the contents of the documents were read over and explained to her, she understood them, she had independent advice at the relevant time and that the execution of document was not only a physical act, but also mental Act. (1988) 66 Cut LT- 495 : Khalli Pana v. Rahas Patro. (xii) AIR 1990(Orissa)(Vol-77)-70 : Bhagabat Prasad Das vrs. Haimabati Devi and others—T.P. Act, 1882—Section 3—Execution of sale deed—Claim to title of property conveyed under sale deed—Proof of Execution—Evidence of attesting witness(D.W.3) is not sufficient to prove due execution of the sale deed by Sarada. He (D.W.3) nowhere says that Sarada(an illiterate widow lady) understood the contents of the deed before she touched the pen of the scribe signifying the execution of the document. Thus, proper execution of sale deed not proved. (Para-10) (xiii) AIR 1983 (Orissa)-135 : Smt. Manohari Devi and others vrs. Chaudhury Sibanava Das and others—Indian Evidence Act, 1872—Hindu Law—Joint Family property— Alienation—For legal necessity—Duty of the purchaser to // 18 // make bonafide enquiry as to the existence of legal necessity or family benefit or had acted honestly.(Para-8) 24. When, undisputedly the executants of the so-called sale deed dated 04.06.1981 vide Ext.3 are poor, illiterate and old widow ladies and the plaintiff is claiming benefit through that deed vide Ext.3 and when the defendant nos.1 and 2 have seriously challenged/disputed the due and proper execution of that deed vide Ext.3, then at this juncture, in view of the propositions of law enunciated in the ratio of the decisions referred to(supra), heavy burden lies upon the plaintiff to prove the due and proper execution of the said deed vide Ext.3 through proper pleadings and evidence as per law by bringing materials into the record that, Ext.3 was written by the deed writer as per the versions/instructions of the illiterate widow lady executants and after completion of its writings, the contents thereof were read over and explained to them by the deed writer in presence of the witnesses, to which, the executants understood properly and admitted to be correct and then after understanding the contents thereof and admitting to be correct, they put their L.T.Is. knowing fully well that, they are transferring their properties covered under that Ext.3 to the vendee(plaintiff) and there must be a certificate indicating the above details in the deed by the deed writer in the deed. But, here in this suit at hand, there is no pleadings at all on behalf of the plaintiff that, the contents of the so-called sale deed vide Ext.3 // 19 // were read over and explained to the old illiterate widow lady executants, i.e., Baja Bewa and Saraswati Bewa and they put their L.T.Is. on the same after understanding the contents thereof and knowing it fully well and admitting the same to be as correct that, they are selling the properties covered in that deed vide Ext.3 to the plaintiff. 25. There is also no evidence during trial on behalf of the plaintiff that, the sale deed vide Ext.3 were written as per the instructions of the old illiterate lady executants thereof, i.e., Baja Bewa and Saraswati Bewa and after scribing that deed vide Ext.3, the contents thereof were read over and explained to them and after understanding the contents thereof to be correct, they (Baja Bewa and Saraswati Bewa) put their L.T.Is. on the same knowing fully well that, they are selling their properties covered in that deed to the plaintiff. Neither the scribe (deed writer) of the deed vide Ext.3 nor any witness of that Ext.3 has been examined on behalf of the plaintiff to prove the due execution of that deed vide Ext.3 by the old widow illiterate Baja Bewa and Saraswati Bewa and they have put their L.T.Is. on the same after fully understanding the true nature of that deed vide Ext.3. 26. As such, the pleadings and evidence of the plaintiff are not sufficient in conformity with the law enunciated in the ratio of the // 20 // aforesaid decisions for proving due and proper execution of the sale deed vide Ext.3 by the old illiterate lady widow executants thereof in favour of the plaintiff, for which, in the judgment and decree passed by the 1st appellate court, it has been properly held that, the said deed vide Ext.3 is void and inoperative. Therefore, the above findings and observations made by the 1st appellate court holding that, the deed vide Ext.3 relied by the plaintiff concerning the purchase to the interests of the members of the branch of Dhani Sahoo in the suit Plot No.320 as void and inoperative cannot be held as erroneous under law. 27. As per the discussions and observations made above, when it is held that, the findings and observations made by the 1st appellate court in the judgment and decree passed in the 1st appeal vide R.F.A. No.72 of 2002 holding that, the sale deed dated 04.06.1981 vide Ext.3 said to have been executed by Baja Bewa and Saraswati Bewa for themselves and Saraswati Bewa as the guardian of the minor defendant nos.1 and 3 in favour of the plaintiff in respect of their 1/4th shares in the suit properties, i.e., in respect of Ac.0.015 decimals as invalid, void and inoperative are not erroneous, then at this juncture, the question of interfering with the said findings of the 1st appellate court through this 2nd appeal filed by the plaintiff does not arise at all. 28. When, it is held above that, the so-called sale deed vide Ext.3 dated 04.06.1981 is non-est in the eye of law, then, non-challenge to the // 21 // same only by the defendant no.3 cannot make that deed valid and also cannot enure any benefit in favour of the plaintiff. As such, there is no significance to the non-challenge to that deed vide Ext.3 by defendant no.3. 29. On analysis of the facts and circumstances of this suit/appeal at hand coupled with the law as discussed above, when it has already been held that, the plaintiff (Bishnu Charan Sahoo) has candidly failed to prove the due and proper execution of the so-called sale deed vide Ext.3 by the widow illiterate lady executants, i.e., Baja Bewa and Saraswati Bewa and as well as defendant nos.1 and 3 in respect of the suit properties in his favour, then at this juncture, the 1st appellate court is correct in its view that, a minor within three years of attaining the majority was not required to file a suit as per Article 60 of the Indian Limitation Act to cancel or set aside that deed vide Ext.3, because, that deed vide Ext.3 is non-est in the eye of law. 30. As per the discussions and observations made above, when it is held that, the judgment and decree passed by the 1st appellate court against the plaintiff and in favour of the defendants are not erroneous in any manner, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellant(plaintiff) does not arise. // 22 // Therefore, there is no merit in the appeal of the appellant (plaintiff). The same must fail. 31. In the result, the 2nd appeal filed by the appellant(plaintiff) is dismissed on merit, but without cost. The judgment and decree dated 21.08.2006 and 04.09.2006 respectively passed by the 1st appellate court in R.F.A. No.72 of 2002 reversing/modifying the judgment and decree passed by the trial court in T.S. No.94 of 2002 are confirmed. Judge Orissa High Court, Cuttack The 14th of March, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: Authentication Location: OHC, CUTTACK Date: 14-Mar-2024 15:24:30