In the matter of appeal under Section-100 of the Code of Civil Procedure assailing v. Patunuru Sandesh Pqiro & Anptltefy • • • •
Case Details
T HIGH COURT OF ORISSA : CUTTACK RSAN0.469 OF 2015 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned District Judge, Ganjam, Berhampur in RFA No. 11/14 in confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Berhampur (Ganjam) in C.S. No.4 /11. Patnuru SaratCh. Palm @ Sarat Ch. Patro. Appellant • • VERSUS Patunuru Sandesh Pqiro & Anptltefy • • • • Respondents. Advocate(s) who appeared in this ease by hybrid?arrangement , (virtual/p|iy«ch^^^^^ - 'V ! ' For Appellant r*- I^s Bharat Jali, v> A. 1 : i For Respondents
Legal Reasoning
CORAM: MR. JUSTICE D.DASH : \ f ; if V /;!;!AiK. Parida, B.N. Tripathy ;'-A,p(Adyocate). I / \ rr^ i 7 Date of Hearing: 26.08.2022 • • • • Date of Judgment: 06.09.2022 D.DashfJ. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned District Judge, Ganjam, Berhampur in R.F.A. No.l 1 of 2014. By the same, the Appeal filed by the present Appellant being the aggrieved Plaintiff in Civil Suit No.4 of I {{2}} 2011 of the Court of the learned Civil Judge (Senior Division), Berhampur, Ganjam under section 96 of the Code has been dismissed. Thereby, the judgment and decree passed in the suit refusing to declare the sale deed in question as null and void have ben confirmed. 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 Trial Court. 3. Plaintiffs case is that fhe propefty described in the schedule of the plaint is the joint family ancestral property. It is further stated that Defendant No. 1, 'who-happens tp;^b^ brother without the consent and knowledge of the Plaintiff . has: alienated the suit property by registered sale deed in favour oftherDefendant No.2. So/ it is stated that ft " •o/'/, f' such sale of undivided propertyTis TMegal and void. The Plaintiff, therefore, has prayed for ddclarihg thaf sale deed as null and void. 4. The Defendant No.l, who is the brother of the Plaintiff No. 1 and Defendant No.3, who is the purchaser of the suit land in their written statement have assert'pd that the suit property is the self-acquired I property of the Defendant No.l and the Plaintiff has no interest over the said property, which has been rightly sold by Defendant No.l to Defendant No.2. t Page 2 of 5 {{3}} 5. The Trial Court on the above rival pleadings having framed in total five issues has answered the vital issues, i.e., Issue Nos.3 and 4 against the Plaintiff in firstly holding that the suit property is not the joint family undivided property and secondly that the sale made by the Defendant No.l in favour of the Defendant No.2 vide registered sale deed is valid. Recording such findings, the Trial Court has dismissed the suit and the Plaintiff thus being non-suited having carried the Appeal have also failed in that move. \ 4 ? / 6. Learned counsel; for the Appellant submitted that the Plaintiff is \ / the younger brother of DefehdanL ^ it is,his\ evidence that , [ recording of the suit land in the name, of the Defendant No.l in the i- ,jV IV ! record of right,is nbt'binding upon him'and that has-'been created by Defendant No.l typracticing fraud? He ^submitted that/With the evidence available on record, the CourtsV-belot^haye'i recorded a perverse finding that the suit land is not the ancestral jbiht family properties of the parties and that finding ought to have been recorded in favour of the Plaintiff and accordingly, the record of rights (Exts.5 and 6) ought to have been found to have been created for the purpose of depriving the Plaintiff and others and consequently, the sale deed standing in favour of the Defendant No.2 ought to have been declared as null and void. He, Page 3 of 5 {{4}} therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 7. Keeping in view the submissions made, I have carefully gone through the judgments passed by the Courts below. 8. Admittedly the suit properties have been recorded in the name of the Defendant No.l as it reveals from the record of right (Exts.5 and 6). Except the bald pleading that the suit property is the joint family ancestral property of, the Plaintiff andvPefendant No.l, no other document has been prqved m support of the- saine in tracing out its history as also/hpf ft rther eVidenPefthasf been let . in to show to the satisfaction of the court that such;; ptpperty had been purchased out of the surplus income pf he joint familjt; riuGleus. It is liof eVen stated as to what was the total, extent of joint’rfamily property and how much was remaining the surplus jincome' hfterfmeeting all the expenses. No such further evidence has been let in. Therefore, the Plaintiff having failed to i discharge the burden jof proof lying on him in establishing that the property in question ' is not the self-acquired/absolute property of Defendant No.l, no fault can be found with the concurrent finding of the I Courts below as regards the nature of said property. With the above 1 finding of the Courts below remaining uninterfered, the Courts below y Page 4 of 5 {{5}} are found to have rightly refused to declare the sale deed executed by the Defendant No.l in favour of Defendant No.2 as null and void. For the aforesaid discussion, this Court is not in a position to accept the submission of the learned counsel for the Appellant (Plaintiff) that there surfaces any substantial question of law to be answered meriting admission of this Appeal. 9.
Decision
In the result, the Appeal stands dismissed. No order as to cost. j / V5 ' ; • ! ’■ /;■ / 'V. V yp)^pash), judge. - j u /; / •v ■ ■•I - V r'. •' r^’VV = ‘. : . i ■ /1-', N " ' I ■ ; s Y) ;.i ^ I Himansu Page 5 of 5