High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA N0.338 OF 2015 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned District Judge, Keonjhar in RFA No.08 of 2013 in confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Anandpur in Civil Suit No. 106/2011. Madan Sahoo @Madhu Sahoo & Others • • • « • • • • Appellants. VERSUS • • • • Akshaya Palei & Others Respondents ■-.A \\ ! i i 1, /f-. \ ■V- ' I, Advocate(s) wKo appeared in this case by hybr-W^arrangement (virtual/physical) mode. \ I 7 For Appellants i /• !. • « • i For Respondents ■y •/ :9M/s.S.R. Patnaik, / :(NiP. Parida, P.K. Mphanty, S/Mohanty &'S‘Mahakuda (Advocates). M/S.S.K. Nayak^, Kintara, S.S.K: Nayak f' j {Advoc^es)^ CORAM:
Legal Reasoning
MR. JUSTICE D.DASH Date of Hearing: 26.08.2022:: Date of Judgment: 06.09.2022 D.Dash,J. The Appellants, 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 District Judge, Keonjhar in R.F.A. No.08/2013. By the same, the Appeal filed by the present V' ( {{2}} Appellants being the unsuccessful Plaintiffs in Civil Suit No. 106 of 2011 of the Court of the learned Civil Judge (Sr. Division), Anandapur having filed the Appeal under section 96 of the Code have failed in that move. The suit filed by these Appellants as the Plaintiffs for declaration that registered sale deeds dated 31.03.2009 and 07.05.2010 are void and not binding on them and their other co-sharers. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter"have been refeired to, as they have been arraigned in the Trial Court.. 3. Plaintiffs case iSThat the suit land described in schedule ‘A’ of the plaint originally stood recorded jointly in the narhe of their ancestors, namely, Hagum Sahu, Laxmidhar iSahu, Hrusikesh Sahu, Bansidhar '! Sahu and Baikuntha Sahu and their; sister. Champa, who are the sons and daughter of late Panu Sahu., It is stated that the properties of their i ! ancestors including the suit pfoperties .: had never been partitioned amongst the co-sharers and the co-sharers are said to be possessing the entire properties, which includes the suit properties jointly and as such paying the rent. When the Plaintiffs were leveling the suit land, the Defendants suddenly appeared and threatened them with dire consequences if they would be proceeding further and then they claimed to have purchased the suit land from Laxmidhar Sahu under two registered sale deeds dated 31.03.2009 and 07.05.2010. It is alleged that Page 2 of 8 {{3}} the sale deeds have been obtained by those Defendants taking advantage of the helplessness of Laxmidhar Sahu, who was then passing of through a phase of loss of memory and without payment of consideration and then Laxmidhar even had absolutely no necessity for selling the said land. So, the registered sale deeds executed by Laxmidhar in favour of the Defendants are attacked as void ab-initio with further ground that the same being not with the consent of other co-sharers and their knowledge, the sales are invalid.'It is also -stated that the Defendants have practised fraud in .obtaining those sdfe deeds arid that is the reason, defects with regard to the description of the land under those sale deeds are stated to beithere. !> The Defendants in their written statement haye questioned the maintainability of the suit in saying that the Plaintiff had not arraigned the members of all the branches of successors of Panii and the suit in the form as presented and for the reliefs daimed^i not maintainable that to in the absence of Laxmidhar, the vendor of those sale deeds even a party to the suit. It is further stated that the Plaintiffs suit is a collusive one by suppressing material facts. Having pleaded that after the death of Panu, there being dissention amongst the five sons, they had got separated in mess and property by affecting amicable partition of the properties amongst themselves, it is stated that although in the amicable partition, there was Page 3 of 8 {{4}} no such partition strictly as per their shares from each plots but in different patches, they had so taken. It is stated that after such partition, some of the co-sharers like Laxmidhar, Bansidhar, Haguru and Hrusikesh have sold different patches of land from out of their respective shares to different persons under separate sale deeds as described in the written statement and those sales have never been challenged. The vendor Laxmidhar is said to have sold some of his land to his son-in-law, namely, .■Kalariffi Sahu us to the son of the Plaintiff No.2. It is further stated that each of the son of Panu Sahu has their separate dweftihg., house and: the lands sold by registered sale deed of the year 20Q9 to the extent of Ac.0.17 dec. and then to the extent of Ac.0.09 dec by registered sale deed of the year 2010 were under the exclusive possession of Laxmidhar. It is stated that he has executed the said sale deeds out of his own . will being mentally and physically fit and having the authority on receipt of the'^donsidefation. It is also stated that pursuant to the said sale Laxmidhar had delivered possession of the sold lands to the vendees, i.e., the Defendants, which has never been objected by the co-sharers of Laxmidhar and the Defendants have got their lands mutated in their names under separate khata. It is also stated that Brundaban Sahu, who is the son of Laxmidhar is one of the attesting witnesses in the said sale deed of the year 2010. They state that there is no dispute with regard to the identification of the sold lands which are / Page 4 of 8 C- {{5}} the subject matter of the suit and the sale deed of the year 2009 cannot be frustrated merely some wrong description appearing therein. 4. On the above rival pleadings, the Trial Court framed in total five issues. Answering the crucial issue, i.e.. Issue No.6, which concerns with the validity of the sale deeds of the year 2009 and 2010 admitted in evidence and marked Ext.A and B, the Trial Court has returned the answer against the claim of the Plaintiffs in holding that the sale deeds are valid to the extent of the'share ,of Laxmidhar. Having said as above, the Trial Court dismissed th'exsuit as laid arid for the reliefs claimed. .'-■7 7. :<• /;■ ' The Plaintiffs being unsuccessful hefore the Trial Court having carried the Apfjeal have not been abie to obtain any fruitfuj result, 5. Learned counsel for the Appellants submitted that the findings of t I T V 7 ; 'l ^ ! the Court below ,in respect of IssueiMo.'r is not sustainable as the very /; sales made by Laxmidhar under Ext.A and, B are vvoid. According to “Ix i s \ i ; ) him, the evidence on record:,on' proper:,:: appreciation would lead to Ir. '- ij \ ■v. ■ f I conclude that the said sale deeds have been obtained from Laxmidhar by practising fraud upon him and it was not at all with his knowledge and consent which he has stated being examined as P.W.l. He further submitted that when the suit land are the ancestral joint family properties of the parties and there had been no partition in metes and bounds and as such the parties were in possession as are possessing jointly, the Courts below have erred both on fact and law in refusing to Y/ Page 5 of 8 {{6}} declare those sale deeds as void. He, therefore, submitted for admission of this Appeal to answer the above as the substantial question of law. 6. Learned counsel for the Respondents assisting the Court in the matter of admission hearing submitted that on threadbare discussion of evidence on record including the evidence of that Laxmidhar examined as P.W.l, the Courts below are right in holding that the sale deeds have been validly executed by Laxmidhar on receipt of agreed consideration and that there was the delivery of possession pursuant to the same. He submitted that even in the absence of kny stript prob'Lof partition of joint family properties in hietes and bc)uhds,;the Courts below did commit no mistake in holding that such sales ahade, by Laxmidhar as valid to the extent of his shares. He submitted: that,, under the circumstances, the Plaintiffs having not filed a suit'for;;partition placing aH;the joint family properties claiming allotment of share to the parties where the Court could have passed order for adjustment of the sold lands towards the share of Laxmidhar which would have been finally worked out in the final decree proceeding at the convenience of the parties as far as possible and practicable, the present suit as laid and for the reliefs claimed has been rightly dismissed. It was submitted that the suit in the present form claiming the reliefs with the findings as arrived at is bound to be dismissed. / Page 6 of 8 {{7}} 7. Keeping in view the submissions made, I have read the judgments passed by the Courts below. 8. The sale deeds executed by Laxmidhar have been admitted in evidence and marked Exts.A and B and those are under attack by the Plaintiffs and not by the executant vendor, i.e., Laxmidhar, who being alive has not joined the Plaintiffs but has come forward to give evidence in favour of the Plaintiffs as P.W.l. It is stated that the sale deeds have been obtained by practising fraud upon Laxmidhar. The Plaintiffs claim that the Defendants ” used take P'.W.l to' rnddicaK for his treatment because of his old age lailments arid .taking advantage of that they have .. s obtained the sale dedds without his ,:lmowledge and cdrisent. It is also stated that no consideration has been paid and there was no necessity for 1 Laxmidhar to sale the land. This Laxmidhar in his evidence has stated 1 ! that although his soris have.Lled the suit, heTs lookirig after the suit and attending on each date of posting of the .same. He has admitted to have sold some lands to the Defendants by executing sale deeds in the year 2009 and 2010. It is also stated that the sale deeds were scribed by one Mananath of Salabani under his instruction. With such state of affair in evidence especially by the vendor himself, who states to have sold the lands to meet his necessity and as such having received consideration has given the delivery of possession, the challenge to the sale deeds which are registered and thus carry the presumption, on any such Page 7 of S {{8}} grounds is untenabl^. Even when we say that there has been no partition of the joint family properties in metes and bounds; it being there in the I evidence that the parties are in possession of some properties each which is also evident from the fact as Laxmidhar admits in the sale deed to have delivered possession of the properties covered under those sale deeds to the Defendants as well as other sales, this Court is of the view that the prayer of the Plaintiffs to declare the sale deeds as void has rightly been negated by the^G6ufts.belowr % it having been held that those sale deeds are: valid to the share that Ea^idhar has in the joint family properties, this Court, findkShat: those are hot liable to be interfered with.i ’/'•v In that view qf the matter,^jshbmission of the learned counsel I for the Appellants thiit there arfres'cfhj^ilubstantial being answered meritingy^. admission of this question of law for Appeal cannot be countenanced with. : . . ^ ^ 9.
Decision
In the result, the Appeal stands dismissed. No order as to cost. Himansu (D. Ddsh), Judge. Page 8 of 8