Civil Suit No. 334 of 2013 · The High Court · 2023
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.92 of 2023, RSA No.93 of 2023 & RSA No.94 of 2023 In the matter of Appeals under Section 100 of the Code of Civil Procedure, 1908 assailing the judgments and decrees dated 21st January 2023 and 4th February 2023 passed by the learned District Judge, Ganjam, Berhampur in RFA No.44 of 2020, RFA No.2020 and RFA No.10 of 2021 confirming the judgment and decree dated 19.03.2020 and 24.03.2020 passed by the learned 1st Additional Senior Civil Judge, Berhampur in Civil Suit No.334 of 2013. ---- Smt. B. Bharati Dora (In RSA Nos.92, 93 & 94 of 2023) …. Appellant -versus- Smt. B. Papamma & Another (In RSA Nos.92, 93 & 94 of 2023) …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): =============================================== For Appellant - Mrs.Prabhasi Nayak, For Respondents - Mr. S.S. Rao, Advocate. Sr. Advocate, (R-2), - Ms. S. Nayak, Advocate, (R-1) RSA Nos.92, 93 & 94 of 2023 Page 1 of 13 {{ 2 }}
Legal Reasoning
CORAM: MR. JUSTICE D. DASH Date of Hearing: 24.01.2024 :: Date of Judgment:08.02.2024 D.Dash,J. Since all these above noted Appeals filed by the Appellant under section 100 of the Code of Civil Procedure (for short called as ‘the Code’) arise out of the common judgment followed by decrees passed by the learned District Judge, Ganjam-Berhampur in RFA No.44 of 2020, RFA No.45 of 2020 and RFA No.10 of 2021, which had arisen from the judgment and decree passed by the learned 1st Additional Senior Civil Judge, Berhampur in Civil Suit No.334 of 2013; in disposing the suit as well as counter claim; those were head together for their disposal by this common judgment. 2. The Appellant as the Plaintiff had filed the suit for declaration of her right, title and interest over the land as described in the schedule of the plaint in mouza: Goilundi under Plot No.2362/4099 appertaining to Khata No.1166/4910 measuring an area Ac.0.042 decimals along with the Respondent No.1 (Defendant No.1) and partition of the said property between the Appellant (Plaintiff) and Respondent no.1 arraigned as Defendant No.1; to declare the Plaintiff (Appellant) and Respondent No.1 (Defendant No.1) as the lawful owners of the suit schedule property having the right, title, interest and possession, having equal share over the same; to declare the registered sale-deed dated 27.09.2013 as void having been Page 2 of 13 RSA Nos.92, 93 & 94 of 2023 {{ 3 }} obtained by practicing fraud as void and to partition the suit property between the Plaintiff (Appellant) and Respondent No.1 (Defendant No.1) in two equal halves. In the said suit, the Respondent No.2 (Defendant No.2) had filed counter claim asserting his right, title and interest over the suit property covered under the registered sale-deed dated 27.09.2013 vide RSD No.10601307426 standing in his name being executed by Respondent No.1 (Defendant No.1). The suit stood preliminarily decreed for partition between the Appellant and the Respondent no.1 (Defendant No.1) with further order of adjustment of the purchased property by the Respondent No.2 (Defendant No.2) towards the share of the Respondent No.1 (Respondent No.1) who is the vendor of Respondent No.2 (Defendant No.2) and the counter claim stood dismissed. After the disposal of the suit and counter claim as aforesaid, the Appellant being the unsuccessful Plaintiff being aggrieved and dissatisfied in view of the refusal of the Court to declare the registered sale-deed standing in favour of Respondent No.2 (Defendant No.2) as void and directing for adjustment of the said land towards the share of Respondent No.1 (Defendant No.1) in the partition filed the Appeal under section 96 of the Code which was numbered as RFA No.10 of 2021. The Respondent No.2(Defendant No.2) however carried two Appeals; one against the dismissal of the Counter Claim RSA Nos.92, 93 & 94 of 2023 Page 3 of 13 {{ 4 }} filed by him and the other one against the finding standing against him which are RFA No.44 of 2020 and RFA No.45 of 2020. The Appeals filed by the Respondent No.2 (Defendant No.2) and the Appeal filed by this Appellant as the aggrieved Plaintiff has been disposed by the common judgment followed by the decree which have been challenged in there three second Appeals filed by the aggrieved Plaintiff as the Appellant. 3. 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. 4. Plaintiff’s Case:- The suit land is the self-acquired property of the father of the Plaintiff and husband of the Defendant No.1 namely, B. Kuresh Dora. He had purchased the said land by registered sale- deed dated 28.09.1977. He being the absolute owner was in possession of the same. He died leaving behind his widow, the Defendant No.1 and daughter, the Plaintiff as his successors. The suit land was succeeded by the Plaintiff and Defendant No.1 upon the death of B. Kuresh Dora and having half share each over the said property. There stands a two storied building over the said land which had been constructed by B. Kuresh Dora. The ground floor being used as hotel and the first floor was the lodging house. The monthly income towards rent from that building is around Rs.20,000/-. After the death of the father RSA Nos.92, 93 & 94 of 2023 Page 4 of 13 {{ 5 }} of the Plaintiff, as per the direction of the Joint Commissioner of Settlement and Consolidation, Berhampur in SRP Case No.569 of 2007, the suit land has been jointly recorded in the name of the Plaintiff and Defendant No.1. The Plaintiff and the Defendant No.1 being the daughter and widow of the original owner, they have been enjoying the building situated over the suit land. On 14.09.2013, Plaintiff got married and since then she resided in her in-laws house at Goutami under the jurisdiction of Sadar Police Station, Berhampur; and some time she was coming to look after the property. In course of time, Defendant No.1 did not pay any income of the building to the Plaintiff and she enjoyed everything whatever earned from the said property in suit. So, the Plaintiff requested the Defendant No.1 for partition of the suit land. The Defendant No.1 did not pay any heed to the same, and on the other hand she declared in the locality to have sold the entire suit land together with the building to the Defendant No.2. This was without the knowledge of the Plaintiff. It is stated that sale of the land made by the Defendant No.1 in favour of Defendant no.2 is void having come into being fraudulently and the activities carried out in that direction. 5. The Defendant No.1 filed the written statement. She denied the status of the Plaintiff to be her daughter. She claims herself to be legally married wife of B. Kuresh Dora. It is stated RSA Nos.92, 93 & 94 of 2023 Page 5 of 13 {{ 6 }} that neither she nor her husband B. Kuresh Dora had ever adopted the Plaintiff as their child. According to her, she is the only successor of B. Kuresh Dora and therefore, after the death of B. Kuresh Dora, she had sold Ac.0.21 decimals from out of land under that khata and plot by registered sale-deed by dated 27.09.2013 in order to meet his medical expenses to the Defendant No.2. The Plaintiff being a stranger is said to be having no right over the said suit property and thus no locus standee to file the suit in claiming the reliefs. 6. The Defendant No.2 coming to contest the suit, in his written statement, reiterated the version stand of the Defendant No.1 that the Plaintiff is not the daughter of B. Kuresh Dora and thus disputing her status submitted that taking advantage of the illiteracy of Defendant No.1, the Plaintiff had got the SRP Case No.569 of 2007 filed by her before the Joint Commissioner, Consolidation and Holdings and accordingly, has managed to obtain the patta. It is further stated that the Defendant No.1 being the exclusive owner of the suit land and building has sold the portion of the same to the Defendant No.2 on receipt of agreed valuable consideration and from that date of purchase i.e. 27.09.2013, the Defendant No.2 claims to be in possession of the said property. It is further stated that he has mutated the suit land in his name by the order passed in Mutation Case No.936 of 2013 and has been paying rent for the same regularly. He RSA Nos.92, 93 & 94 of 2023 Page 6 of 13 {{ 7 }} claims to be the exclusive owner having right, title, interest and possession over the said land. He lodged a counter claim. 7. In the written statement to the Counter Claim advanced by the Defendant No.2, the Plaintiff reiterating the version made in the plaint and refuting the case/claim of the Defendant No.1 based on the registered sale-deed stated that sale-deed executed by the Defendant No.1 in favour of the Defendant No.2 is void. 8. On the above rival pleadings, the Trial Court framed as many as eleven (11) issues. Upon examination of evidence and their evaluation, the issue as to the status of the Plaintiff has been answered in her favour holding her to be the daughter of B. Kuresh Dora and the Defendant No.1 and accordingly conclude that upon death of B. Kuresh Dora, his property have devolved upon his two successors i.e. Plaintiff and Defendant No.1. 9. Next answering the fate of the registered sale-deed executed by Defendant No.1 in favour of Defendant No.2, the finding has been rendered that it is valid one. The property covered under the sale to be the joint property of the Plaintiff and Defendant No.1 when Defendant No.1 alone has sold the land out of suit land to the Defendant No.2 without their being any partition of the suit land between the Plaintiff and Defendant No.1, it has been said that no title in respect of the RSA Nos.92, 93 & 94 of 2023 Page 7 of 13 {{ 8 }} specific property covered under the sale deed would pass to the hands of Defendant No.1 by virtue of that registered sale deed which thus has been held to be valid to the extent of the share of the Defendant No.1 over the suit property. The Defendant No.2 being the bonafide purchaser for value has been held entitled to that from out of interest of Defendant no.1 in the partition between the Plaintiff and Defendant No.1. Accordingly, the Trial Court passed the order for preliminary decree for partition of the suit property; while dismissing the Counter claim filed by the Defendant No.2, negating his claim of title over the specific property covered under the registered sale-deed, Ext.A. 10. The Trial Court finally passed the following orders: - “The suit be and the same is decreed partly and preliminarily on contest against the defendant no.2 and ex-parte against the defendant no.1, however, without any cost. The counter-claim of the defendant no.2 is dismissed on contest against the plaintiff and ex-parte against the defendant no.1, however without any cost. The suit schedule property is liable for partition in between the plaintiff and defendant no.1 and the purchased share of the defendant no.2 be carved out from the share of defendant no.1. The parties are directed to partition the suit schedule property by metes and bound amicably among them. In case of failure to the partition the same, either of the parties can approach before this Court to partition the suit schedule property by appointing a Survey Knowing RSA Nos.92, 93 & 94 of 2023 Page 8 of 13 {{ 9 }} Commissioner. The possession of the parties be considered while allotting the share of the parties.” 11. The First Appellate Court deciding the three (3) Appeals as noted above which had arisen from that judgment and preliminary decree passed by the Trial Court in disposing the suit and Counter Claim has held as under:- “19. Therefore, the findings and observations made by the learned Court below in para No.7 of the impugned judgment at the time of answering issue Nos.(ix) and (x) that, no title can be passed to the defendant no.2 by virtue of the sale deed vide Ext.A, executed by the defendant No.1 is held to be erroneous and illegal, because that particular finding of the learned Court below is not at all correct for the reasons stated above, as the defendant no.2 has interest on the suit land as a bona fide purchaser from defendant No.1 through sale deed vide Ext.A. When, as per the discussions and observations made above, it is held that, after the death of B. Kuresh Dora, the plaintiff and defendant No.1 had become the joint owner over the suit land and the building standing thereon and when the defendant No.1 has sold her share in the suit land/ property through registered sale deed vide Ext.A to the defendant No.2 and when the suit land/ property along with the building standing thereon had not been partitioned between the plaintiff and defendant No.1 at the time of execution and registration of the sale deed vide Ext.A by the defendant No.1 in favour of the defendant No.2 and RSA Nos.92, 93 & 94 of 2023 Page 9 of 13 {{ 10 }} when there is no materials in the record till yet to show about the division/ partition of the suit land and when it is held that, the defendant no.2 being the purchaser of the suit land from the defendant No.1 only, he (defendant No.2) alone is not the exclusive owner of the suit land, because, the plaintiff is a co-owner of the suit land / property, then at this juncture, the impugned judgment and decree passed by the learned Court below in decreeing the suit vide C.S. No.334/2013 of the plaintiff in part preliminary for partition of the suit property between the plaintiff and defendant No.1 and for carving out the share of defendant No.2 as a purchaser of Defendant No.1 from the share of the defendant No.1 and the dismissal of the counter claim of the defendant No.2 refusing to declare that the defendant No.2 refusing to declare that the defendant no.2 alone is the absolute owner over the suit property cannot be held erroneous of illegal. But, whereas, the findings and observations made by the learned Court below in para No.7 of the impugned judgment and decree that no title can be passed to the defendant No.2 by virtue of the sale deed to a specific portion as there is no partition is held to be erroneous. For which, the decisions relied upon on behalf of the appellant in RFA No.10 of 2021 indicated above in para No.13 of the judgment are held as inapplicable to this appeal at hand on facts and law, as per the discussions and observations made above. 20. Therefore, the appeals filed by the appellant (who was the defendant No.2 in C.S. No.334/2013) vide RFA No.44/2020 and RFA No.45/2020 are to be decree in RSA Nos.92, 93 & 94 of 2023 Page 10 of 13 {{ 11 }} part. But the RFA No.10/2021 filed by the Plaintiff / appellant is to be dismissed in full.” 12. All these above three (3) Second Appeals filed by the Plaintiff have been admitted to answer the following substantial question of law:- “Whether passing of title to Defendant No.2 by virtue of the sale deed when the property is in the jointness would be valid?. 13. Heard Mrs. Prabhasi Nayak, learned Counsel for the Appellant and Mr. S.S. Rao, learned Senior Counsel for the Respondent No.2 at length. 14. Keeping in view the submissions made, I have perused the judgments passed by the Courts below. I have also gone through the Trial Court record containing the plaint, written statement and the evidence both oral and documentary let in by the parties. 15. The status of the Plaintiff as the daughter of B. Kuresh Dora has been concurrently found by the Courts below in her favour and the challenge made by the Defendants questioning the locus-standi of the Plaintiff to institute the suit has been negated. It appears from the judgment of the Courts below that on detail scrutiny of the evidence both oral and documentary let in by the parties, such a finding has been arrived at. This Court finding no such perversity with the same as it is not seen to be RSA Nos.92, 93 & 94 of 2023 Page 11 of 13 {{ 12 }} based on no evidence or contrary to the evidence on record, it holds that said finding is well in order. With such finding standing in favour of the Plaintiff against the Defendant Nos. 1 and 2, indisputably upon the death of owner of the suit property namely, B. Kuresh Dora, the Plaintiff and Defendant No.1 succeeded to the same in equal share. The defendant No.1 having executed registered sale-deed in favour of the Defendant No.2 by selling the land measuring Ac.0.21 decimals from out of total land of Ac.0.42 decimals by registered sale-deed dated 27.09.2013, the Plaintiff’s challenge to the said sale deed as to have been fraudulently obtained by the Defendant No.2 from Defendant No.1 has not been accepted by the Courts below. The Defendant No.1 being the vendor of the said sale deed in her written statement has admitted to have sold the property for a valuable consideration in order to meet her necessities, as to defray the medical and other day today’s expenses. Such admission of the Defendant No.1 in the pleading shatters the plea of the Plaintiff that the Defendant No.2 had obtained the sale deed by practicing fraud upon Defendant No.1, when there is also no such evidence in support of such plea of the Plaintiff to outweigh the admission the Defendant No.1 which she has made against her own proprietary interest. 16. It is the settled position of law that the alienation of joint property by a co-owner/ co-sharer would only remain valid to RSA Nos.92, 93 & 94 of 2023 Page 12 of 13 {{ 13 }} the extent of the share of the co-owner/ co-sharer subject to its adjustment at the time of partition. The vendor however cannot claim to have been clothed with right, title and interest of the specific property covered under the said transaction. Thus, when Defendant No.1 has sold the property within her share to the Defendant No.1, it would not be permissible to say the sale deed executed by Defendant No.1 in favour of Defendant No.2 is illegal and void. It being the settled position of law even if there is alienation of specific portion of the suit land by co- owner/ co-sharer by way of sale, the same will amount to alienation of the share of the co-owner/ co-sharer from the suit land, the substantial question of law stands answered accordingly. The final order passed by the Trial Court in passing the preliminary decree for partition entitling the Plaintiff to half share over the suit property with adjustment of the extent of purchased land of the Defendant No.2 towards the share of Defendant No.1 by carving out the same in respecting possession and convenience as far as possible and practicable while allotting the share in the field stand confirmed. 17. In the result, the Appeals stand dismissed. However, there shall be no order as to cost. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 09-Feb-2024 10:57:17 Narayan (D. Dash), Judge. RSA Nos.92, 93 & 94 of 2023 Page 13 of 13