Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.333 of 2003 (From the judgment dated 05.04.2003 passed by the learned Ad hoc Additional District Judge (FTC), Jagatsinghpur in Title Appeal No.105 of 2001) Bipin @ Bipin Bihari Rout& Ors. …. Appellant (s) -versus- Kabita Swain …. Respondent (s) Advocates appeared in the case through Hybrid Mode: For Appellant (s) For Respondent (s) : : Mr. Arun Kumar Mishra, Adv. Mr. Panchanan Panigrahi, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-25.03.2025 DATE OF JUDGMENT:-11.04.2025 Dr. S.K. Panigrahi, J. 1. The Appellants challenge the judgment dated 05.04.2003 passed by the learned Ad hoc Additional District Judge (FTC), Jagatsinghpur in Title Appeal No.105 of 2001 remanding the Title Suit No.28 of 1995/ 53 of 2001 to the trial court i.e. the learned Civil Judge (Junior Division), Jagatsinghpur for a fresh trial. Page 1 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: (i) The present respondent, claiming to be a co-sharer of joint undivided landed properties, filed the suit T.S. No. 28/53 of 1995/2001 before the Civil Judge, Junior Division, Jagatsinghpur, impleading the present
Legal Reasoning
appellants as defendants. The present respondent sought a declaration that a Sale Deed dated 16.06.1990 was void and illegal, and prayed for partition of the suit property, claiming a 1/4th share therein. (ii) The present respondent contended that she is the daughter of Dhruba Rout and Padmabati, and the sibling of the present appellants. She claimed to have inherited Lot No. 1 of the schedule, which belonged to Dhruba Rout, and asserted that, upon the death of both her parents, she was entitled to a 1/4th share in the property. The present respondent further asserted that Plot Nos. 2808 measuring 0.05 decs. and 2819 measuring 0.07 decs. in Mouza Sanra originally belonged to Padmabati, who had been gifted the land by one Pasori Bewa. (iii) The present respondent further contended that the present appellant fraudulently obtained a registered Sale Deed from Padmabati on 26.06.1990. She claimed that Padmabati, being a pardanashin woman and illiterate, had been misled into executing the Sale Deed, under the false impression that she was signing a power of attorney for her care. The present respondent argued that the Sale Deed was void and that, Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 after the present appellants refused to partition the property, she was compelled to file the suit. (iv) The present appellants, as defendants, contended that they were the children of Dhruba Rout and Padmabati, while the present respondent was the natural daughter of Mohani Pal, their maternal uncle. They argued that due to Mohani Pal’s poor financial condition, Dhruba had brought the present respondent into their care, incurred expenses for her marriage, and that her natural father acted as the Karta in her marriage. The present appellants further contended that, after Dhruba’s death, they distanced themselves from the present respondent due to her ill-tempered behavior. They claimed that the present respondent had no right to challenge the Sale Deed executed on 26.06.1990 and, being a stranger, was not entitled to file for partition. (v) The Civil Judge, Junior Division, Jagatsinghpur, framed six issues in this case. Upon examining the material on record, including the present respondent’s school certificate, transfer certificate, and the testimonies of witnesses (four on behalf of the present respondent and three on behalf of the present appellants), the Court found no clinching or reliable evidence to substantiate the present respondent’s claim of being the daughter of Dhruba Rout. The witnesses, who were neither neighbors nor relatives of the deceased Dhruba Rout, did not possess any special knowledge relevant to the matter. In accordance with Section 50 of the Indian Evidence Act, the Court noted that the prerequisites for establishing the relationship between the present Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 respondent and Dhruba Rout through special knowledge were not fulfilled. (vi) The Civil Judge, Junior Division, Jagatsinghpur also noted that the school transfer certificate showed the present respondent was admitted to school on 08.07.1975, with a date of birth of 9.2.1967, and she left school on 01.04.1978. However, inconsistencies were found, including the birth date written as 09.02.1987 in words. The headmaster of the school was not examined, and no explanation was provided for this omission. In the absence of proof, the court could not establish the present respondent as the sister of Dhruba Rout. (vii) Further it was found that the co-villagers examined as witnesses did not possess special knowledge regarding the respondent’s relationship, and the present appellants’ witnesses, who were their neighbors, testified that the present respondent referred to Malati and Mohani Pal as her mother and father. (viii) The court concluded that the present respondent was not the natural daughter of Dhruba and Padmabati and, as a stranger to the family, was not entitled to share in the joint family property. (ix) Regarding the Sale Deed, the signatures of Padmabati and two witnesses, namely her husband Dhruba and Bhaskar Rout, were affixed on each page. The court found no convincing evidence to prove that Padmabati was pardanashin or illiterate. One of the present respondent’s witnesses even stated that Padmabati had been the secretary of the Mahila Samiti of Village Sanra. Additionally, another Sale Deed dated 31.07.1974, produced by the present appellants, Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49
Legal Reasoning
indicated that Padmabati had previously sold land to one Srinath Mohanty, contradicting the claim of illiteracy. The court concluded that the Sale Deed executed on 26.06.1990 was not void or illegal under Section 17 read with Section 28 of the Indian Registration Act. The registration of the deed was not vitiated by any fraudulent activity. (x) Furthermore, the court observed that the present respondent had sought the declaration of the Sale Deed as void but had failed to value the suit accordingly, nor had the court fee been paid on such valuation. The Sale Deed was executed in 1990, but the suit was filed in 1995, after the statutory period of limitation had expired. In light of the facts and discussions, the court concluded that the Sale Deed executed on 26.06.1990 was not void or illegal. (xi) The matter was subsequently appealed before the Ad-hoc Additional District Judge, Jagatsinghpur, in Title Appeal No. 105 of 2001. (xii) The appellate court observed that there was no close relative examined on behalf of the present appellant. It noted that the present respondent had filed a compromise petition, which was not accepted by the court. However, the appellate court directed that the suit be remanded to the lower court, giving the present respondent an opportunity to prove her relationship with Dhruba Rout by producing additional witnesses under Section 50 of the Indian Evidence Act. (xiii) Aggrieved by this order, the present appellants assert that the remand is contrary to law and should be set aside. Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 II. SUBMISSIONS ON BEHALF OF THE APPELLANTS: 3. (i) Learned counsel for the Appellants earnestly made the following submissions in support of his contentions: The Appellants submitted that the judgment passed by the Ad-hoc Additional District Judge, Jagatsinghpur, is manifestly contrary to law and liable to be set aside. The Lower Appellate Court failed to apply its judicial mind appropriately, having disposed of the appeal in a cursory and superficial manner, without proper appreciation of the pleadings, evidence on record, and settled legal principles. (ii) The Appellants further submitted that the Lower Appellate Court did not record any finding of perversity, illegality, or material irregularity in the judgment of the Trial Court. In the absence of such a finding, the remand of the matter was wholly unjustified and unsupported by cogent reasons. (iii) The Appellants submitted that the Trial Court had afforded full opportunity to the Respondent to provide evidence. The burden of proof squarely lay upon the Respondent to prove her case. Once that burden was not discharged, the Court was under no obligation to allow her to fill the lacunae by way of remand. The impugned order facilitating such a course is legally unsustainable and warrants interference. (iv) The Appellants further submitted that the direction issued by the Lower Appellate Court to provide an opportunity to the Respondent to establish her relationship with Dhruba Rout is devoid of legal justification. The appellate court’s assumption that such opportunity Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 was not earlier afforded is contrary to the record and the Trial Court proceedings. (v) The Appellants submitted that the manner in which the appeal was disposed of by the Lower Appellate Court is inconsistent with the settled principles governing the exercise of first appellate jurisdiction. As the final court of fact, the first appellate court was duty-bound to examine the evidence in detail and render a reasoned judgment, which it failed to do. (vi) The Appellants submitted that the judgment of the Lower Appellate Court is whimsical, arbitrary, and unsustainable in law. The court failed to evaluate the evidence on record or apply settled principles. The remand order, issued without adequate reasons, is more akin to an administrative directive than a judicial pronouncement, and hence,
Decision
the impugned judgment is liable to be set aside. III. SUBMISSIONS ON BEHALF OF THE RESPONDENT: 4. (i) The Learned Counsel for the Respondent earnestly made the following submissions in support of his contentions: The Respondent submitted that the Appellants have not approached this Court with clean hands. It was contended that the Appellants deliberately suppressed material facts and thereby obtained an interim stay order from this Court. (ii) The Respondent further submitted that she has a meritorious case on record. However, due to the interim stay order passed by this Court, she has been deprived of effective adjudication for over two decades. Title Suit No. 28/53 of 1995/2001, instituted by her before the Court of Page 7 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 the Civil Judge (Junior Division), Jagatsinghpur, has remained pending for the past 23 years, thereby denying her access to timely justice. (iii) The Respondent submitted that the suit schedule property comprises two lots. Lot No. I belonged to Dhruba Rout, who died leaving behind the present Appellants and the Respondent, being his son and daughters, respectively as his legal heirs. Accordingly, they succeeded jointly to the said property, each entitled to an equal share. Lot No. II originally belonged to Pasori Bewa, mother of Dhruba Rout, who gifted the same to Padmavati, wife of Dhruba Rout. Upon the death of Padmavati, the Appellants and the Respondent succeeded to her estate, each having a 1/4th share. (iv) The Respondent further contended that Appellants 1 and 2 fraudulently procured a sale deed dated 26.06.1990 from Padmavati in respect of Plot Nos. 2808 and 2819 of Village Sanara and Plot No. 802 of Village Sanpur. It was submitted that Padmavati, being illiterate, was misled into believing she was executing a power of attorney for management of her affairs. Fraud was thus practiced both upon her and the registering authorities. The sale deed was never acted upon and no possession was delivered. (v) It was specifically alleged that Plot No. 802 of Village Sanara did not belong to Padmavati and was deliberately included in the sale deed solely to confer jurisdiction upon the Jagatsinghpur Sub-Registrar’s Office, which clearly evidences the fraudulent intention to fabricate territorial jurisdiction and mislead the registration authorities Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 (vi) The Respondent stated that upon her request for an amicable partition of the suit schedule properties being refused by the Appellants, she was constrained to file Title Suit No. 28/53 of 1995/2001 seeking appropriate relief before the Court of the Civil Judge (Junior Division), Jagatsinghpur. (vii) The Respondent further submitted that she had sought a remand before the Lower Appellate Court to establish her relationship with Dhruba Rout. The Appellate Court rightly noted, in terms of Section 50 of the Indian Evidence Act, that no neighbour or close relative who could speak to the familial relationship had been examined during trial. The prayer for remand was therefore justified well-founded, and legally tenable. IV. FINDINGS OF THE AD-HOC ADDITIONAL DISTRICT JUDGE (FTC), JAGATSINGHPUR: (i) The Ad-hoc Additional District Judge, Jagatsinghpur, in Title Appeal No. 105 of 2001, observed that no close relatives had been examined on behalf of the plaintiff-appellant. (ii) While the plaintiff-appellant had claimed a 1/4thshare of the suit land asserting that she is the daughter of Dhruba Rout, in support of her claim she had produced a Transfer Certificate issued by a Government Upper Primary School. The said document indicated that the appellant was admitted to the school on 08.07.1975, with her date of birth recorded as 09.02.1967. It further showed that she left the school on 01.04.1978, at which time she was studying in Class VI. Page 9 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 (iii) The Ad-hoc Additional District Judge, Jagatsinghpur further noted that the plaintiff-appellant had filed a compromise petition, which had not been accepted. (iv) Considering the nature of the claim, the Ad-hoc Additional District Judge, Jagatsinghpur remanded the suit to the Civil Judge, Junior Division, Jagatsinghpur with a direction to provide the appellant a fair and adequate opportunity to substantiate her claimed relationship with Dhruba Rout by examining additional witnesses in accordance with Section 50 of the Indian Evidence Act. V. COURT’S REASONING AND ANALYSIS: 5. 6. Heard the learned counsel for the Parties and perused the materials placed on record. In the instant matter, the Ad-hoc Additional District Judge, Jagatsinghpur, in Title Appeal No. 105 of 2001, remanded the suit to the Civil Judge, Junior Division, Jagatsinghpur with a direction to provide the plaintiff-appellant a fair opportunity to prove her relationship with the appellants and their father, Dhruba Rout, through witnesses in accordance with Section 50 of the Indian Evidence Act, 1872. 7. Section 50 of the Indian Evidence Act, 1872 provides for the admissibility of opinion in matters concerning relationships. The provision is replicated hereinunder: “50. Opinion on relationship, when relevant. —When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a Page 10 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).” prosecutions in or 8. 9. 10. 11. 12. At this juncture, this Court finds it expedient to examine the contours of remand under the provisions of Order XLIII Rule 1(u) and Order XLI Rule 23-A of the Code of Civil Procedure, 1908. Order XLIII Rule 1(u) permits an appeal against an order of remand passed under Rule 23 or Rule 23-A of Order XLI. A remand under Order XLI Rule 23-A is permissible only in limited circumstances. It is not to be exercised as a matter of routine or for the mere reason that some evidence was not adduced or considered. The Supreme Court in this regard in Sirajudheen v. Zeenath1, observed that according to Order XLI Rule 23A, a suit cannot be remanded, for de novo by the Trial Court, only because certain evidence was not produced. Coming to the factual matrix of the present case, it is noted that the Civil Judge, Junior Division, Jagatsinghpur had examined the material on record, including the evidence of the plaintiff and other witnesses. The plaintiff relied primarily on a School Certificate and Transfer Certificate No other evidence was adduced, nor were any relatives or neighbours having special knowledge of the familial relationship examined to prove the alleged relationship with Dhruba Rout. 12023 SCC OnLine SC 196. Page 11 of 13 13. It is imperative to note here that the burden of proof lies on the party who asserts the fact, as per Section 101 of the Indian Evidence Act, which states as hereinunder: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 “101. Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 14. 15. 16. 17. In the present case, the respondent asserted co-ownership and claimed to be a co-sharer of joint family properties, and therefore, the burden of proof squarely lay on her to prove such relationship. The Lower Appellate Court, despite observing that the respondenthad not adduced any relevant evidence or produce any witness with special knowledge of her familial relationship, remanded the matter on the sole ground that she should be given another opportunity. However, it is not the case that the respondent had not been granted adequate opportunity before the Trial Court. A remand cannot be ordered merely because a party failed to produce relevant witnesses, especially when the opportunity to do so had already been afforded. Courts are not expected to fill gaps in the evidence or cure deficiencies in a party’s case. The power of remand under Order XLI Rule 23-A CPC must be exercised sparingly and only when there exists sufficient cause. The appellate court must be satisfied, based on cogent and compelling Page 12 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 reasons, that a retrial is imperative; otherwise, the remand may result in a substantial miscarriage of justice. 18. In the instant case, the Lower Appellate Court has not recorded any finding or cogent reasoning to indicate that the evidence on record was insufficient to determine the issues. In the absence of such satisfaction, the direction for retrial benefit is wholly unsustainable. Rather, the Court appears to have granted the parties a second opportunity despite adequate opportunity having already been accorded during the trial. 19. Accordingly, this Court finds that the remand order passed by the Lower Appellate Court is unsustainable in law, being passed without proper application of judicial mind and contrary to settled legal principles. VI. CONCLUSION: 20. 21. In light of the foregoing, this appeal is allowed. The impugned judgment dated 05.04.2003 passed by the learned Ad hoc Additional District Judge (FTC), Jagatsinghpur in Title Appeal No.105 of 2001 remanding the Title Suit No.28 of 1995/ 53 of 2001 to the trial court i.e. the learned Civil Judge (Junior Division), Jagatsinghpur for a fresh trial is hereby set aside. 22. Interim order, if any, passed earlier stands vacated. Orissa High Court, Cuttack, Dated the 11th April, 2025 (Dr.S.K. Panigrahi) Judge Page 13 of 13