The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.422 of 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 24th August, 2017 and 8th September, 2017 respectively passed by the learned Additional District Judge, Kantabanji in R.F.A. No.19/25 of 2014-16 confirming the judgment & decree dated 27th September, 2014 and 27th October, 2014 respectively passed by the learned Civil Judge (Senior Division), Kantabanji in C.S. No.136/130 of 2008-13. Bishnu Majhi; and Nilakantha Majhi ---- -versus- …. Appellants Raidhar Majhi & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - For Respondents - M/s.Prasanta Ku. Nayak, A.K. Mohapatra, S.S. Mishra and S.Dash, (Advocates) CORAM: MR. JUSTICE D.DASH Date of Hearing :02.11.2023 : Date of Judgment:13.11.2023 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment & decree dated 24th August, 2017 and 8th September, 2017 respectively passed by the learned Additional District Judge, Kantabanji in R.F.A. No.19/25 of 2014-16. Page 1 of 13 RSA No.422 of 2017 {{ 2 }}
Legal Reasoning
The Respondent No.1, as the Plaintiff, had filed C.S. No.136/130 of 2008-13 in the Court of the learned Civil Judge (Senior Division), Kantabanji seeking declaration of the WILL dated 05.02.19685 (Ext.F) as void and for further declaration of his right, title and interest over the suit land and permanent injunction against Defendant Nos.1 & 2. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff’s Case:- One Jabar Majhi was the Goiuntia of Village-Rengali and he had been allotted some Gounti land, which stood recorded in his name in the Holding No.13 of 1936 settlement. Jabar died in the year 1956 leaving behind his widow Sukrabari Majhi, who was then carrying the child of about four months. The Plaintiff is son of Jabar born after the death of Jabar. After the death of Jabar, his wife possessed the entire Gounti land and being a widow when she was unable to manage the land, she took the help of her nephew Dhubal Majhi for cultivation of the lands. For such service of Dhubal, the widow of Jabar had given him 8 to 9 acres of land from out of the Gounti land, which was exclusively recorded in his name under Holding No.26 of 1975 settlement. The rest Gounti land was recorded in the name of Sukrabari in RSA No.422 of 2017 Page 2 of 13 {{ 3 }} Holding No.69. In course of time, the Plaintiff grew up and he along with his mother Sukrabari cultivated the land under Holding No.69. In the year 1976, Sukrabari died. Dhubal died much thereafter in the year 1993. The Plaintiff, being the sole legal heir and successor of Jabar and Sukrabari, possessed the suit land under Holding No.69. The Plaintiff, being in need of money, on 26.05.1981, sold Ac.2.24 decimals of land in favour of one Godtia Majhi (Defendant No.3) by a registered sale deed. The said land was mutated in the name of the purchaser (Defendant No.3), who is now possessing the same by paying the land revenue to the State. It is stated that like all other years, in the agricultural season of 2008, the Plaintiff had cultivated the land under that Holding No.69 by raising paddy crops. When the matter stood thus, it came as a surprise to him in the month of October when he had been to the local Revenue Inspector’s Office to pay the land revenue for the land in his occupation as its owner, when he learnt that the same has been mutated in the name of Defendant No.1. On verification, it was found on the basis of the WILL dated 05.02.1968 (Ext.F), being projected by him to have been executed by Sukrabari, the Defendant No.1 has got the suit land mutated in his name in Mutation Case No.290/1115 of 20070 The Plaintiff claims that Sukrabari had never executed any WILL during her life time. The WILL, basing on which the Defendant No.1 has got the land mutated in his name is a forged RSA No.422 of 2017 Page 3 of 13 {{ 4 }} and fabricated document with a view to grab the entire suit land. It is stated that said document was created by Dhubal. The Plaintiff then filed Mutation Appeal No.1 of 2008, which was allowed and the order of mutation passed by the original authority was set aside. Accordingly, the record of right was corrected. However, on 23.11.2008, the Defendant No.1 challenged the title of the Plaintiff over the suit land for which the suit came to be filed. 4. The Defendant Nos.1 & 2, in their written statement, without disputing the fact that Jabar was the Gountia of Village- Rengali and the land under Holding No.13 was his Gounti land and also not disputing Sukrabari to be the wife of Jabar and the death of Jabar to have taken place in the year 1956, have, however, denied the sonship of the Plaintiff in stating that the Plaintiff is not the son of Jabar. According to them, after the death of Jabar, as Sukrabari was then young, she developed elicit relationship with one Markand Majhi and out of the said relationship, Sukrabari conceived and the Plaintiff was born in the year 1965. It is further stated that after the birth of the Plaintiff, since the family members protested to that elicit relationship between Markand and Sukrabari; Markand, snapping with his relationship with Sukrabari, got married to another. It is further stated that their father was not cultivating RSA No.422 of 2017 Page 4 of 13 {{ 5 }} the land of Sukrabari in order to help Sukrabari. According to them, Jabar died at an early age and Dhubal, who happens to be the nephew of Sukrabari, was helping Sukrabari at the time of her need. Since the Plaintiff was not the son of Jabar, Sukrabari, anticipating her death, in order to avoid future dispute in relation to the properties, had voluntarily executed the WILL on 05.02.1968 in presence of the witnesses. After the death of Sukrabari in the year 1976, Dhubal, being the absolute owner, possessed the entire suit land under Khata No.69 openly, peacefully and continuously to the knowledge of the Plaintiff till his death in the year 1992 and thereafter, the Defendant No.1, being his successor, has been possessing the same as before. It is further stated that the registered sale deed dated 26.05.1981 executed by the Plaintiff in favour of Defendant No.3 is a sham transaction and has never been acted upon in as much as that there has been no delivery of possession of the suit land by the Plaintiff to Defendant No.3 and accordingly, he is not in possession of the same. It is next stated that the Plaintiff was having no salable right over the suit land and, therefore, Defendant No.3 has derived no title under that sale deed. The sale deed is stated to be void and not binding on Defendant Nos.1 & 2. RSA No.422 of 2017 Page 5 of 13 {{ 6 }} They denied that the land under Holding No.26 was given by Sukrabari to Dhubal in lieu of his service. Rather, they assert that the said land was purchased by Dhubal from Sukrabari paying valuable consideration under a registered sale deed. One Damayanti Majhi was the legally married wife of Dhubal and Defendant No.1 was born out of that wedlock whereas Defendant No.2 is the son of Dhubal through Belamati with whom he had the illicit relationship. Dhubal, during his life time, had allotted a portion of land out of Holding Nos.26 and 27 in favour of Defendant No.2. So, during mutation of the suit land in the name of Defendant No.1, no objection was raised. It is further stated that against that order of mutation of the land in their favour, when the Appellate Authority, being moved by the Plaintiff, has set aside the mutation order, the matter has been taken to this Court by carrying a writ petition, which has been numbered as W.P.(C) No.12574 of 2009. The Defendant No.1 has filed a counter-claim seeking declaration that the registered sale deed dated 26.05.1981 executed by the Plaintiff in favour of Defendant No.3 is null and void and for declaration of his right, title and interest over the suit land, which includes the land covered under the registered sale deed dated 26.05.1981 as also confirmation of his possession over the same and permanent injunction. RSA No.422 of 2017 Page 6 of 13 {{ 7 }} 5. The Defendant No.3, in his written statement, has asserted the Plaintiff to be only son of Sukrabari and as such, he is the only legal heir and successor of Sukrabari. It is said that the Plaintiff, while possessing the said land, has sold the same in his favour for valuable consideration and he, having been delivered with the possession of the sold land to him, is continuing to possess the same and, therefore, has the right, title, interest and possession of the suit land, being its owner by virtue of his purchase from the Plaintiff. 6. The Plaintiff, in the written statement to the counter-claim filed by Defendant No.1, has reiterated the facts, which have been averred in the plaint. 7. The Trial Court, on the above rival pleadings, sitting over to decide the suit and counter-claim, has framed as many as ten issues, which read as under:- “i. Whether the suit is maintainable? ii. Whether the plaintiff has any cause of action for the suit? iii. Whether the plaintiff was born in the year 1956 and is the son of Jabar Majhi or he was born in the year 1965? iv. Whether the willnama dated 05.02.1968 said to have been executed by Sukrabari in favour of Dhubal Majhi is valid and genuine? RSA No.422 of 2017 Page 7 of 13 {{ 8 }} v. Whether the suit is barred by limitation? And vi. Whether the plaintiff is entitled to the reliefs? vii. Whether the counter claim is maintainable? viii. Whether there is any cause of action for the counter claim? ix. Whether the sale deed dated 24.05.1981 executed by the plaintiff in favour of defendant no.no.3 is null and void? and x. Whether defendant no.1 is entitled to the reliefs?”. 8. Rightly, first coming to answer issue no.iii as to the status of the Plaintiff, which he claims to be the son of Jabar born in the year 1956 and is denied by by Defendant Nos.1 & 2, on detail discussion of the evidence and their evaluation, the answer has been given in favour of the Plaintiff. Coming to the issue with regard to the validity of the WILL (Ext.F), the Trial Court, having undertaken the exercise of analysis of evidence on record as to the proof of execution and attestation said WILL, concluded that the WILL is shrouded with many such suspicious circumstances, which have not been dispelled by propounder and thus the issue has been answered against the acceptance of the WILL. 9. The suit having been dismissed, the Defendant Nos.1 & 2, having carried the First Appeal, have been unsuccessful. RSA No.422 of 2017 Page 8 of 13 {{ 9 }}
Legal Reasoning
10. Mr.P.K.Nayak, learned counsel for the Appellants (Defendant Nos.1 & 2) submitted that the Courts below have committed the error by rejecting the WILL dated 05.02.1968 (Ext.F) executed by Sukrabari in favour of Dhubal, the father of Defendant Nos.1 & 2. According to him, the evidence on record, being enough in support of the proof of due execution and attestation of the said WILL, the finding of the Courts below, in culling out the some silly circumstances and depicting those to be suspicious is perverse. Then he submitted that as per the evidence, since the father of Defendant Nos.1 & 2 are staying on the disputed land since 1975 till his death and thereafter, the Defendant Nos.1 & 2 have been staying over there on the strength of the said WILL without any hindrance, the Courts below ought to have held that they have acquired the title by virtue of adverse possession. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 11. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties, as placed. 12. The Courts below, as it appears, on a detail discussion of the evidence and their assessment from every possible angle, have arrived at a conclusion that the Plaintiff is the son of Jabar RSA No.422 of 2017 Page 9 of 13 {{ 10 }} and Sukrabari. The Defendants’ case that Sukrabari had given birth to the Plaintiff after the death of Jabar having conceived through Markand in view of their relationship, has been found to have been not at all been established. The concurrent finding of fact as to the status of the Plaintiff, has emerged that he is the son of Jabar and Sukrabari. On going through the evidence on record; the Court’s below in returning said finding are found to have out at all overlooked any such material evidence on record or to have read any such material extraneous to the evidence on record. Therefore, the said finding is held to be just and proper outcome. 13. Next, coming to the WILL, which has been projected by the Defendant Nos.1 & 2 so as to non-suit the Plaintiff to deprive him of the right, title and interest over the suit land, which he claims being the son of Jabar and Sukrabari and has been so held in his favour, which has been affirmed; let us have a glance at the WILL, which has been admitted in evidence and marked Ext.F. The WILL has been proved through D.W.2. He has stated that in the year 1968, Sukrabari bequeathed all her properties in favour of her nephew Dhubal. According to his evidence, the WILL was written by one Sisunath Bhoi and it was executed in presence of Budha Bhoi and Jugsai Bhoi. He states to have been present when the WILL came into being. These two witnesses, namely, Budha Bhoi and Jugsai are dead. The Defendant No.3 has RSA No.422 of 2017 Page 10 of 13 {{ 11 }} come to the witness box as he is the son of one of the attesting witness, namely, Jugsai and nephew of Budhia. It is true that when the attesting witnesses are dead and thus the direct evidence as to the attestation is not available, a party, under the obligation to prove due execution and attestation of the WILL, can very well do so through other evidence. Thus, here the evidence of D.W.2 is of utmost importance. When D.W.2 says that he was present all through during when the WILL was scribed and executed by Sukrabari and attested by witnesses, his version during cross-examination has axed everything at their roots. He states that by execution of the said document (Ext.F), Sukrabari adopted Dhubal as her son and that fact was written in that document with further pious wish of Sukrabari that Dhubal would perform her obsequies and enjoy all her properties. So, when this D.W.2 has stated that the very object of executing Ext.F by Sukrabari was to place Dhubal in the pedestal of her adopted son, even if we for a moment accept that she had expressed her wish and desire that Dhubal would get all her properties, the document (Ext.F) cannot be said to be having all the trappings of a WILL in the eye of law. Furthermore, this D.W.2 has not stated that the document had been scribed under the instruction of Sukrabari and that the contents of the document was read over and explained to her by the scribe and she having ascertained those contents to have been truly and correctly RSA No.422 of 2017 Page 11 of 13 {{ 12 }} written, had put her LTI therein that to in presence of those two attesting witnesses and that they thereafter singed thereon, which is most important and bound to be shown in view of the challenge to the document as required under section 63 of the Indian Succession Act read with section 68 of the Evidence Act. Moreover, the scribe of the so-called document (Ext.F) has not been examined nor there comes any explanation for his non- examination. In that Ext.F, it finds mention that Sukrabari was not having any son. But as already found out, in answering the previous issue that the Plaintiff was her son. Thus said factual statement made in the so-called WILL appears to be false. Accepting for a moment that the Plaintiff was born to Sukrabari not through Jabar but through someone else, then he being in any case the son of Sukrabari, there is no explanation as to why Sukrabari, being the mother would exclude her son when she had given birth to after carrying for ten months in her womb, nurtured and grown and instead prefer her nephew Dhubal to enjoy her properties to the deprivation of her son, the Plaintiff. A mother in doing so must have very strong reason and that much of hatred or ill-feeling towards her son which is wholly wanting the proof in this case. The Courts below have also found other suspicious circumstances surrounding the WILL. By saying that the comparison of the LTI of Sukrabari in different document does not tally to the naked eye, doubt has been raised to the RSA No.422 of 2017 Page 12 of 13 {{ 13 }} genuineness of the WILL (Ext.F). Besides the above, there stands the circumstance that despite the death of Sukrabari in the year 1976, the so-called WILL (Ext.F) has seen the light of the day only in the year 2007 when an application for mutation for the lands was filed by the Defendant No.1 although the fact remains that the propounder under the WILL (Ext.F), namely, Dhubal died in the year 1992 much after the death of Sukrabari in the year 1976, which is not explained away. In view of all these above, this Court finds that the Courts below, keeping in view all the settled principles of law holding the field, have rightly discarded the so-called WILL (Ext.F) projected by Defendant Nos.1 & 2 in order to rob the Plaintiff of his right, title, interest and possession over the suit land, being the sole legal heir and successor of Sukrabari. 14. In the wake of aforesaid, this Court finds no such substantial question/s of law standing for being answered in this Appeal, meriting its admission. 15.
Decision
In the result, the Appeal stands dismissed. There shall be no order as to cost. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 15-Nov-2023 11:20:14 RSA No.422 of 2017 (D. Dash), Judge Page 13 of 13