High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.59 OF 2014 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Kalahandi, Bhawanipatna in RFA No.3/54 of 2010-2013 in setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Bhawanipatna in C.S. No.7 of 2003. ……… Sujaya Shankar Singh Deo :::: Appellant -:: VERSUS ::- Smt. Puspa Kumari Devi & Others :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … Mr. S.K. Samantaray, Advocate For Respondents … Mr. A.P. Bose, Advocate ------ CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Judgment: 10.08.2023 --------------------------------------------------------------------------------------- D.Dash,J. 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 Additional District Judge, Kalahandi, Bhawanipatna in RFA No.3/54 of 2010-2013.
Legal Reasoning
The Respondent No.1 as the Plaintiff filed the suit for recovery of the suit property from one Prasanna Kumar Singh, who had been arraigned {{ 2 }} as the sole Defendant and for permanent injunction restraining him not to enter upon the suit property. During pendency of the suit, the sole Defendant having died, his legal representatives have been brought on record as Defendant No.1 (A) to 1 (E). The Trial Court dismissed the suit filed by the present Respondent No.1 (Plaintiff). Being aggrieved, by the said judgment and decree passed by the Trial Court dismissing the suit, the present Respondent No.1 as the unsuccessful Plaintiff being non-suited had carried the Appeal under section 96 of the Code. The First Appellate Court has allowed the Appeal The judgment and decree passed by the learned Civil Judge (Sr. Division), Bhawanipatna in Civil Suit No.7 of 2003 dismissing the suit have been set aside and the present Respondent No.1 who was the Appellant before the First Appellate Court and the Plaintiff in the Trial Court has been favoured with a decree directing this Appellant and Respondent Nos.2 to 5 (Defendants) to deliver vacant possession of the suit property to the Respondent No.1 (Plaintiff) and pay damage of Rs.200/- per month from the date of the suit till delivery of possession. 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. Plaintiff’s case is that she is a Paradanasin lady and has executed a general power of attorney in favour of her husband authorizing him to take Page 2 of 8 {{ 3 }} all such step safeguarding the interest of the Plaintiff. The Plaintiff is the lawful owner in respect of the suit properties described in schedule ‘A’ and ‘B’ of the plaint which was under Khata No.619, Plot No.3351-Ac.0.016 dec. (697 sq. ft.), Plot No.3352-Ac.0.033 dec (1437 sq. ft.) and Plot No.3353-Ac.0.139 dec. (6055 sq. ft.) as per the settlement of the year 1955-56 situated near Manikeswari High School Chowk, Bhawanipatna corresponding to the entries made in Yaddast No.283 (Unit No.7). The Plaintiff had purchased the said property from Prafulla Kumari Devi, W/o. Late Purusottam Singh of Bhawanipatna by Registered Sale Deed No.2176 dated 23.09.1983 for a consideration of Rs.20,000/- The Plaintiff having purchased the said property remained in exclusive possession of the same by residing in the suit house with her family standing over it and the vendor who was her mother-in-law also continued to stay with them. The Plaintiff had let out some portion of the house on rent to Orissa Forest Corporation Ltd. with effect from 01.02.1991 till 16.05.1992. The said house thereafter was given on rent to the Branch Office of M/s. Casion Finance and Investment Pvt. Ltd. for a period of three years from 01.07.1992 under an agreement. The tenant having vacated the suit property, the Plaintiff remained in exclusive possession of the same till 1996. She thereafter shifted to the newly constructed house of her son situated near Jayaprakash Evening College, Bhawanipatna. The Plaintiff, accordingly, kept the suit house under lock and key as there was dire need Page 3 of 8 {{ 4 }} of massive repair of that house. The Plaintiff had kept some house hold materials therein. It is stated that the residence of the original Defendants is adjacent to the suit property and taking advantage of the temporary absence of the Plaintiff, the Defendant trespassed over the suit property with his family members and caused damage to the suit house leading to heavy finance loss of the Plaintiff. It was said to have happened on 14.01.2003 when the Plaintiff was at Bonai and taking advantage of her absence, the original Defendant and his family members did all said unauthorized acts. Hence, the Plaintiff filed the suit seeking the relief as afore-stated. 4. The Defendant while traversing the plaint averments has categorically stated that said Prafulla Kumar Devi had no capacity to sale the suit property and it is the Plaintiff who had managed to create that document which is thus not binding on him. It is further claimed that the Defendant is in all along in possession of the suit property for which there was no occasion for the Plaintiff to let out the same or to keep the same under lock and key. It is further stated that the question of causing any damage of the said suit house by the Defendant does not arise. 5. The Trial Court on the above rival pleadings, framed 12 issues, which run as under:- “(a) Has the Plaintiff any cause of action to bring the suit? (b) Is the suit maintainable in this form? Page 4 of 8 {{ 5 }} (c) Is the Registered Sale Deed No.2176, dated 24.09.1983 executed by vendor, Prafulla Kumari Devi in favour of Plaintiff is genuine for consideration and has been acted upon? (d) Has the Plaintiff got exclusive right, title, interest and possession over the suit land/properly? (e) Are the Defendants in forcible possession of the suit land/ property? (f) If the Plaintiff entitled to the claimed damages? (g) To what relief if any, the Plaintiff is entitled to? 6. The Trial Court, upon examination of the evidence let in by the parties in the touchstone of the pleadings and their appreciation at its level while answering the issues having pointed out the following reasons has dismissed the suit. The reasons are:- a) The testimony of P.W.1 was found not acceptable in absence of corroboration as well as in absence of explanation in non- examination of power of attorney holder. b) The alleged registered Sale Deed No.2176 dtd.24.9.1983 in respect of the suit property having not been formally proved, though a certified copy thereof was produced vide Ext.2 lying foundation for proving such secondary without evidence. c) The vender of the alleged registered Sale Deed having no alienable title and possession in respect of suit property to transfer the same to the plaintiff. d) The contents of Ext.2 having been contained no term that there was delivery of possession and in absence of any such legal prove regarding delivery of possession from vender to Page 5 of 8 {{ 6 }} the vendee (plaintiff), no title is passed on strength of the same. e) Plaintiff has not come to the court with clean hands as she filed the suit on 30.1.2003 though she claims having dispossessed in the year 1996 and such delay having not been explained by her. 7. In the First Appeal filed by the Plaintiff, it has been held that the Plaintiff has established her claim over the suit property as its owner and was in possession of the same. The First Appellate Court, upon examination of the evidence on record has also held that the Plaintiff being the rightful owner of the property was in possession of the same and the Defendants have trespassed and as such the possession of the suit property by them is without any legal sanction and the Plaintiff is entitled to recover the possession of the suit property from them. One of the legal representatives of the original Defendant has now filed this Second Appeal arraigning the Plaintiff and other legal representatives of original Defendant as the Respondents. 8. The following substantial question of law stands for being answered:- “Whether in view of the judgment and decree passed in Title Suit No.21/1991 when the Plaintiff has been held to have purchased the suit property from Prafulla Kumari Devi by registered sale deed for valuable consideration and that sale deed having not been challenged by the Page 6 of 8 {{ 7 }} Defendants; the judgment and decree of the First Appellate Court decreeing the suit have to sustain. 9.
Legal Reasoning
Heard learned counsel for the Appellant and learned counsel for the Respondent No.1 at length. I have carefully read the judgments and decrees passed by the courts below. 10. The Plaintiff claims to have purchased the suit land from her mother- in-law (vendor) by registered sale deed dated 23.09.1983 (Ext.7), the Defendants have not challenged the same at any earlier point of time except attacking the same in this suit. The sole Defendant as the Plaintiff had filed Title Suit No.21 of 1991 against his co-sharers including Prafulla Kumari Devi, the vendor of the Plaintiff claiming partition of their joint family property which included the suit land. The suit had been dismissed ex parte with a finding therein that the property involved in the present suit is the exclusive property of Prafulla Kumari Devi which facts stand undisputed. The Yaddast document (Ext.9) reflects the said sale transaction in favour of the Plaintiff and that has also been recorded in the record of right of Bhawanipatna Nazul under Khata No.619 (Ext.12) showing the suit property in the name of the Plaintiffs-Vendor. That apart, the documents Ext.4 to Ext.6 which have been proved by the Plaintiff would show that a portion of the suit house had been let out by the Plaintiff. So with all those documents of title, the Defendants have not been able to establish any sort of rival claim over the suit property when the claim of Page 7 of 8 {{ 8 }} their predecessor-in-interest, i.e., original Defendant that it is the joint family property liable for partition has been negated in the suit filed by him. In that view of the matter, when the vendor of the Plaintiff had the alienable right over the property and she having executed the registered sale deed under Ext.7 neither the Defendants or their predecessor-in- interest have challenged the same on any specific ground by filing suit except questioning the authority as above which has been negated and it is only here they for the first time say that it is a created document; the finding of the First Appellate Court that the Plaintiff has the right, title and interest over the suit property and as such entitled to recover the possession of the suit land from the Defendants has to hold the field. The First Appellate Court, therefore, is found to have rightly decreed the suit granting the reliefs as stated therein to the Plaintiff. The substantial questions of law are accordingly answered, which leads for dismissal of the Appeal. 11. In the wake of aforesaid, the Appeal stands dismissed. No order as to cost. Signature Not Verified Digitally Signed Himansu Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 17-Aug-2023 16:42:32 (D. Dash), Judge. Page 8 of 8