The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 39 of 2024 An appeal under Section 100 Code of Civil Procedure. Nabin Chandra Bag ...… Appellant --------------- -Versus- Sunita Barik and Others ...… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s.P.K. Satapathy, P. Panda, B.K. Das & D. Pattanayak, Advocates For Caveator : M/s. T. Nanda, B.K. Panda & D. Kar, Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 6th August, 2024 SASHIKANTA MISHRA, J.
Legal Reasoning
This is an appeal by the defendant against a confirming judgment passed by learned District Judge, Bolangir on 30.11.2023 followed by decree in RFA No. 1 of Page 1 of 7 2022 whereby the judgment passed by learned Additional Senior Civil Judge, Balangir in C.S. No. 95 of 2017 on 23.11.2021 followed by decree, was confirmed. 2. For convenience, the parties are referred to as per their respective status before the trial court. 3. For better appreciation of the relationship between the parties, it would be useful to refer to the following genealogy:- Aram Chandra Bag Soudamini (daughter-dead) Nabin-(Defdt.1) Sunita Akshya (Daughter-P-1) (Son-Deft-2) (Son-P-2) Ashis 4. It is the case of the Plaintiffs that they are the successors of Soudamini, the daughter of the common ancestor, Aram Chandra Bag. Further the parties are Christians. It is claimed that the suit land was under peaceful possession of the common ancestor till his death in the year, 2008. After his death, the suit land was jointly possessed by his daughter Soundamini and the Defendant No.1-Nabin Chandra Bag. Said Soudamini died on Page 2 of 7 09.02.2012 whereupon Plaintiffs and Defendant No.2 succeeded to the suit land having joint possession over 1/2 share along with Defendant No.1, who also has 1/2 share. A suit was earlier filed, being C.S. No.68 of 2014, which was subsequently withdrawn. Since some area of the suit land was found to have been transferred to outsiders allegedly in a clandestine manner, the Plaintiffs having come to know of the same inquired into the matter and filed the suit for partition. 5. Defendant No.1 contested the suit by filing written statement. It is his case that he is the only child of the common ancestor Anam Chandra Bag and that Soundamini is just a foster daughter. Since the parties are Christians, the concept of adoption is not available as in case of Hindus.Taking advantage of the fact that Soundamini was treated as a foster daughter, her legal heirs and successors have wrongly raised claim over the suit land. 6. Basing on the rival pleadings, the trial Court framedthe following issues for determination:- Page 3 of 7 “1) Whether the suit is maintainable in the present from in view of withdrawal of the previous suit? 2) Whether there is any cause of action to file this suit? 3) Whether Soudamini was the natural daughter of late Aram Chandr Bag and the genealogy depicted in plaint is correct? 4) Whether the defendant no.l is the sole successor of late Aram Chandra Bag? 5) Whether plaintiffs along with defendant No.2 are jointly entitled to half share in the suit properties? 6) Whether the suit properties are partiable? 7) Whether the plaintiffs are entitled to any other reliefs?” 7. Taking up issue Nos. 3, 4 and 5 together for determination, the trial Court negatived the plea of the Defendant No.1 that Soudamini was not the natural born daughter of Aram Chandra Bag. Further, the plea that the Defendant No.1 alone was possessing the suit land after death of his father was also negative. On such finding, the suit was preliminary decreed with allotment of 1/2 share to plaintiff and Defendant no.2 on one side and Defendant No.1 on the other side. 8. Being thus aggrieved, the Defendant No.1 carried the Page 4 of 7 matter in appeal.The 1st Appellate Court, after considering the grounds raised, did not find any reason to interfere with the factual findings of the trial court. The appeal was thus dismissed. 9. Being further aggrieved, the Defendant No.1 has preferred the instant appeal.
Legal Reasoning
10. Heard Mr. P.K. Satapathy, learned counsel for the appellant and Mr. T.K. Nanda, learned counsel appearing for the respondents who appeared through Caveat. 11. Mr. Satpathy would assail the impugned judgments by submitting that both the courts below committed manifest error in relying upon a copy of the school admission register, marked Exhibit-6, to arrive at the finding that Soudamini was the natural born daughter of Aram Chandra Bag. Both the courts below further committed error in ignoring the fact that no other person from the family had come forward to adduce evidence to the effect that Soundamini was the natural born daughter of Aram Chandra Bag . 12. Having perused the impugned judgments and on a careful consideration of the contentions raised on behalf Page 5 of 7 of the Appellant, this Court finds that both the courts below have heavily relied upon Exhibit-6, which is a copy of the school admission register. Said register was proved by the Headmaster of school as P.W. 4. In the said document, the father’s name of Soundamini has been mentioned as Aram Chandra Bag. The certificate of the Secretary of the school is endorsed in the school admission register vide exhibit-6/a and that of the Headmaster is marked Exhibit-6/b. The handwritings of the Secretary and the Headmaster of the school, who had made the endorsement, were also proved to the satisfaction of the Court. As against such clear evidence, the Defendant No.1 could not adduce any evidence in rebuttal. As such, both the courts below found the plea taken by Defendant No.1 not acceptable. It is the settled position of law that the High Court sitting in second appeal would ordinarily be slow to interfere with concurrent findings of facts unless, it is demonstrated that such finding is either perverse or against the weight of evidence on record or otherwise not acceptable. From what has been narrated hereinbefore, this Court finds Page 6 of 7 that such is not the case at hand, so as to be persuaded to interfere with the impugned judgments. 13. Resultantly, this Court finds no reason to admit the second appeal, which is therefore dismissed. There shall
Decision
be no order as to costs. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Aug-2024 19:36:04 Page 7 of 7