(In the matter of an appeal under Section 100 of the Code v. Jogi Swain & Anr.

Judgment

23.12.2024 A.C. Behera, J. This second appeal has been preferred against the confirming judgment.

2. The appellant in this 2nd appeal i.e. Jhatu Swain was the defendant No.1 before the Trial Court in the suit vide T.S. No.140 of 1988 and sole appellant before the 1st appellate Court in the 1st appeal vide T.A. No.58 of 1994. S.A. No.366 of 1998 After the death of the appellant Jhatu Swain during the pendency of this 2nd appeal, his legal heirs have been substituted as appellant Nos.1(a) to 1(d) in his place. The respondent No.1 in this second appeal was the sole plaintiff in the suit vide T.S. No.140 of 1988 and respondent No.1 in the 1st appeal vide T.A. No.58 of 1994.

The respondent No.2 in this 2nd appeal was the defendant No.3 in the suit vide T.S. No.140 of 1988 and respondent No.3 in the 1st appeal vide T.A. No.58 of 1994.

3. The suit of the plaintiff (respondent No.1 in this second appeal, Jogi Swain) vide T.S. No.140 of 1988 before the Trial Court against the defendants (original appellant in this 2nd appeal i.e. Jhatu Swain and respondent No.2 along with one Chanchala Dei) was a suit for partition.

4. According to the plaintiff, the defendant Nos.1 & 3 are his brother and sister respectively. The defendant No.2 (Chanchala Dei) is the sister of his father. The suit properties are his ancestral properties.

5. In order to have a better appreciation and so also for an instant reference, the family pedigree of the parties according to the plaint is depicted hereunder:- S.A. No.366 of 1998 Genealogy Bhagabat Swain Fakira Swain Dhobei Swain Chanchala Dei (deft. No.2) Jhatu Swain (deft No.1) Jogi Swain (plaintiff) Rajani Dei (deft No.3)

6. As per the pleadings of the plaintiff, the parties to the suit are all Hindus and they are guided and governed by Mitakshara School of Hindu Law. According to the aforesaid genealogy, Bhagbat Swain was his common ancestor. Bhagabat Swain died leaving behind his only son i.e. Fakira Swain as his only successor. So, after the death of Bhagabat Swain, all the suit properties left by him devolved upon his son Fakira Swain. Fakira Swain died 35 years prior to 1988 i.e. in the year 1953 leaving behind his son Dhobei Swain and daughter Chanchala Dei (defendant No.2). After the death of Fakira Swain, all the suit properties left by him (Fakira Swain) devolved upon his son Dhobei Swain, as, Fakira Swain expired in the year 1953 prior to the coming into force of The Hindu Succession Act, 1956, because, a pre-Act daughter like Chanchala Dei (defendant No.2) had no right of succession by that time as per law. So, S.A. No.366 of 1998 all the suit properties left by Fakira Swain devolved upon his son Dhobei Swain and Dhobei Swain became the owner of the entire suit properties. When Dhobei Swain was the owner of the entire suit properties, the said Dhobei Swain died much after 1956 leaving behind his two sons and one daughter i.e. defendant No.1 (Jhatu Swain), Jogi swain (plaintiff) and Rajani Dei (defendant No.3). So after the death of Dhobei Swain, the suit properties left by him (Dhobei Swain) devolved upon his successors i.e. plaintiff, defendant No.1 and defendant No.3. Therefore, the suit properties are the joint and undivided properties of the plaintiff, defendant Nos.1 & 3. The suit properties have not at all been partitioned/divided between them (plaintiff, defendant Nos.1 & 3) till yet through any metes and bounds partition. After the death of Fakira Swain, the defendant No.1 being his eldest son, he (defendant No.1) was managing the family and he was looking after the possession and management of all the joint and undivided suit properties as the manager of the joint family, but suddenly, five days before filing of the suit, he (defendant No.1) declared in his village that, the defendant No.2 (Chanchala Dei) has executed a gift deed in respect of half of the suit properties in his favour on the strength of joint recording of her name in the suit properties with her brother Fakira S.A. No.366 of 1998 Swain in the major settlement R.o.R. In fact, the defendant No.2 (Chanchala Dei) had/has no interest in the suit properties being a pre-Act daughter. So, he (plaintiff) searched for the so-called gift deed and came to know that, the defendant No.1 has managed to execute a gift deed on dated 07.10.1988 illegally and fraudulently in his favour in respect of part of the suit properties only for his unlawful gain, though the cited donor of that gift deed i.e. defendant No.2 (Chanchala Dei) had/has no interest in the suit properties to transfer. For which, the said so-called gift deed dated 07.10.1988 shown to have been executed by the defendant No.2 in favour of defendant No.1 in respect of the suit properties is void ab initio and non-est in the eye of law. Therefore, he (plaintiff) requested his brother i.e. defendant No.1 for partition of his share from the joint and undivided suit properties, to which, the defendant No.1 did not agree. For which, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.140 of 1988 against the defendants praying for partition of his share from the suit properties.

7. The defendant No.3 (sister of the plaintiff and defendant No.1) was set ex parte in the suit without filing written statement. The defendant No.2 filed her written statement supporting the case of the plaintiff stating that, the defendant No.1 has created the so called gift deed dated 07.10.1988 practising fraud without her knowledge. In S.A. No.366 of 1998 fact, she (Chanchala Dei-defendant No.2) has not executed the so called gift deed dated 07.10.1988 within her knowledge in favour of defendant No.1. She (defendant No.2) had/has no interest in the suit properties. She (defendant No.2) is not entitled to get any interest from her father’s ancestral properties i.e. from the suit properties, as her father Fakira Swain expired much prior to 1956. For which, after the death of her father Fakira Swain, her brother Dhobei Swain became the owner over the entire suit properties being the sole successor of his father as per law, but her name i.e. the name of defendant No.2 has been erroneously recorded with her brother Dhobei Swain jointly in the Hal R.o.Rs of the suit properties. In fact, she (defendant No.2) had/has no interest in the suit properties. The defendant No.1 challenged the suit of the plaintiff by filing his written statement taking his stands inter alia therein that, his father’s father i.e. Fakira Swain had expired after 1956, for which, Chanchala Dei (defendant No.2) as the daughter of Fakira Swain had half share in the suit properties, because, after the death of Fakira Swain, the suit properties devolved upon Dhobei Swain and Chanchala Dei (defendant No.2) equally. He (defendant No.1) was looking after Chanchala Dei (defendant No.2). So, out of love and affection, Chanchala Dei (defendant No.2) gifted away her half share in the suit properties in his favour by S.A. No.366 of 1998 executing and registering the gift deed on dated 07.10.1988. For which, he (defendant No.1) had/has been possessing more amount of suit properties than the plaintiff getting the same in his share through division/partition of the suit properties between him (defendant No.1) and plaintiff. So, the question of re-partition of the suit properties through this suit does not arise. For which, the suit of the plaintiff for partition of the suit properties is not maintainable under law. Therefore, the suit of the plaintiff is liable to be dismissed against him (defendant No.1).

8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 (five) numbers of issues were framed by the Trial Court in the suit vide T.S. No.140 of 1988 and the said issues are:- ISSUES (i) (ii) (iii) (iv) (v) Whether the suit is maintainable? Whether the plaintiff has any cause of action to file the suit? Whether the Registered deed of gift deed dated 07.10.1988 executed by the defendant No.2 is valid, genuine and legal? Whether the plaintiff is entitled to get the relief claimed? Whether there was any partition between the parties?

9. In order to substantiate the aforesaid relief i.e. partition sought for by the plaintiff in respect of the suit properties, he (plaintiff) examined four witnesses from his side including him as P.W.1. On the contrary, the defendants examined three witnesses on their behalf including defendant No.2 (Chanchala Dei) and defendant No.1 S.A. No.366 of 1998 (Jhatu Swain) as D.Ws.1 & 2 respectively and relied upon two documents from their side vide Exts.A & B.

10. 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 defendant No.1 and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiff and against the defendant No.1, the Trial Court decreed the suit of the plaintiff on contest against the defendant Nos.1 & 2 and ex parte against the defendant No.3 preliminarily for partition of the suit properties between plaintiff, defendant Nos.1 & 3 ignoring the gift deed dated 07.10.1988 vide Ext.B shown to have been executed by defendant No.2 (Chanchala Dei) in favour of defendant No.1 in respect of half of the suit properties observing/holding that, the gift deed dated 07.10.1988 vide Ext.B as void and non-est as per its judgment and decree dated 23.04.1994 and 30.04.1994 respectively assigning the reasons that, the suit properties are the joint and undivided properties of the plaintiff, defendant Nos.1 & 3, in which, the defendant No.2 (Chanchala Dei) had/has no interest. The suit properties have not at all been partitioned/divided between plaintiff, defendant Nos.1 & 3 till yet through any metes and bounds partition. When, the father of the defendant No.2 i.e. Fakira Swain expired prior to the coming into force of S.A. No.366 of 1998 The Hindu Succession Act, 1956, then as per law, she (defendant No.2) had/has no interest in the suit properties being a pre-Act daughter. Therefore, she (defendant No.2) was/is not competent under law to transfer any interest in the suit properties in favour of any one including defendant No.1, as she (defendant No.2) had/has no interest in the suit properties. For which, the so called gift deed dated 07.10.1988 vide Ext.B does not create any interest in respect of the suit properties in favour of the defendant No.1, because the defendant No.2 (donor) had/has no interest in the suit properties. In addition to that, due execution of the gift deed vide Ext.B has also not been proved by the defendant No.1.

11. On being dissatisfied with the aforesaid judgment and decree dated

23.04.1994 and 30.04.1994 respectively passed by the Trial Court in T.S. No.140 of 1988 ignoring the gift deed dated 07.10.1988 vide Ext.B with specific findings and observations that, the gift deed dated 07.10.1988 vide Ext.B shown to have been executed by the defendant No.2 in favour of the defendant No.1 is void ab initio and non-est in the eye of law, the defendant No.1 challenged the same by preferring the first appeal vide T.A. No.58 of 1994 being the appellant against the plaintiff and defendant Nos.2 & 3 arraying them as respondents.

12. After hearing from both the sides, the First Appellate Court dismissed that First Appeal vide T.A. No.58 of 1994 of the defendant S.A. No.366 of 1998 No.1 and confirmed to the findings of the Trial Court that, the gift deed dated 07.10.1988 executed by Chanchala Dei (defendant No.2) in favour of the defendant No.1 in respect of the suit properties is void ab initio and non-est in the eye of law, but modified the shares of the plaintiff, defendant Nos.1 & 3 in the suit properties as per its judgment and decree dated 28.10.1998 and 12.11.1998 respectively.

13. On being aggrieved with the said judgment and decree of the dismissal of the First Appeal vide T.A. No.58 of 1994 of the defendant No.1 passed by the First Appellate Court, he (defendant No.1 Jhatu Swain) challenged only to the above specific/particular finding of the Trial Court and 1st Appellate Court that, the gift deed shown to have been executed by Chanchala Dei (defendant No.2) in favour of him (defendant No.1) on dated 07.10.1988 vide Ext.B in respect of half of the suit properties as void ab initio and non-est in the eye of law preferring this 2nd appeal being the appellant without challenging the other findings of the 1st Appellate Court.

14. When, during the pendency of this second appeal, the appellant (defendant No.1- Jhatu Swain) expired, then his legal heirs were substituted in his place as appellant Nos.1(a) to 1(d).

15. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- S.A. No.366 of 1998 (i) Whether the findings of the learned Court below is perverse due to non-application of material evidence i.e. the settlement records vide Ext.A, Ext.A/1 and Ext.A/2 recorded the name of Chanchala (defendant No.2), which are sufficient to draw presumption and is consistent with the theory that her father Fakira died after 1956 and as such, she as a successor has been recorded? (ii) Whether the Courts below are correct to put the onus on the defendant No.1 to prove death of Fakir after 1956, when the plaintiff challenges the gift made by Chanchala on the ground that Chanchala (defendant No.2) has no right to make gift as her father died before 1956?

16. I have already heard from the learned counsels of both the sides.

17. In order to make the gift deed dated 07.10.1988 vide Ext.B shown to have been executed by defendant No.2 (Chanchala Dei) in favour of the defendant No.1 in respect of the half of the suit properties as valid and lawful and in order to nullify the above concurrent findings of the Trial Court and 1st Appellate Court that, the said gift deed dated 07.10.1988 vide Ext.B is void ab initio and non-est, the learned counsel for the appellants relied upon the following decisions: (i) 2020 (II) OLR (SC) 569—Vineeta Sharma Vs. Rakesh Sharma & Others. (ii) AIR 2004 Punjab & Haryana 353—Hazara Singh & Another Vs. Faqira (D) by L.R. and Others.

18. According to the pleadings of the parties, judgments and decrees of the Trial Court and 1st Appellate Court, when the above formulated substantial questions of law are interlinked having ample nexus with each other, then both the substantial questions of law are taken up together analogously for their discussions hereunder. S.A. No.366 of 1998

19. It is the concurrent findings of facts by the Trial Court and First Appellate Court taking into account the pleadings and appreciating the oral and documentary evidence of the parties that, the father of defendant No.2 (Chanchala Dei) i.e. Fakira Swain expired much prior to the coming into force of The Hindu Succession Act, 1956 leaving behind his one son and one daughter i.e. Dhobei Swain and Chanchala Dei (defendant No.2). Dhobei Swain is the father of the plaintiff, defendant Nos.1 and 3 and the said Dhobei Swain expired much after coming into force of The Hindu Succession Act, 1956. It is the settled propositions of law that, High Court has no jurisdiction to disturb the concurrent finding of facts made by the trial Court and First Appellate Court, even, the said finding of facts are on wrong appreciation of evidence. For which, the High Court has no jurisdiction to entertain a Second Appeal on findings of facts, even though, such finding of facts is erroneous. Because, re-appreciation of evidence by the High Court in a 2nd appeal in order to arrive at a different conclusion then the conclusion drawn by the Trial Court and First Appellate Court is quite restricted as per mandate of Section 100 of the CPC, 1908. Therefore, as per law, even a wrong finding of facts by the Trial Court and 1st Appellate Court, the same is not sufficient to constitute a point of law in the 2nd Appeal. S.A. No.366 of 1998 On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions. (a) In a case between Ramathal And Ors. vs K.Rajamani (Dead) Through Lrs And Anr. Reported in 2024(1)Civ.L.Judgment (SC) 243 (at Para No.31) it has been held by the Apex Court by appreciating the provisions of law envisaged in Section 100(4) of the CPC, 1908 that, High Court has no jurisdiction to disturb pure and concurrent findings of facts, that too, on wrong appreciation of evidence.