The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A No. 440 of 2010 Kanhu Charan Mahapatra @ Karunakar Das & Others Appellants Mrs. Sumitra Mohanty, Advocate …. -Versus- Ananda Ch. Mahapatra & Another …. Respondents Mr. Ranjit Mohanty, Advocate for Respondent No.1 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:04.12.2023 1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the behest of the appellants assailing the impugned judgment and decree dated 4th November, 2010 promulgated in R.F.A. No. 12 of 2008 by the learned Additional District Judge, Kendrapara, whereby, the decision of the learned Civil Judge (Senior Division), Kendrapara in T.S. No.165 of 1995 has been confirmed on the grounds inter alia that the findings are not sustainable in law.
Legal Reasoning
2. The appellants as plaintiffs instituted the suit in T.S. No.165 of 1995 against the respondents for a declaration of the sale deed dated 13th March, 1987 purported to have been executed by defendant No.2 in favour of defendant No.1 as illegal and void; confirmation of possession in respect of the schedule land or to recover such possession, if found to be dispossessed during the pendency of the suit; and permanent injunction against the defendants. The pleading of the appellants in the suit is that the schedule land is a part of their homestead and situate within a compact area which was acquired by plaintiff No.1 with joint family fund and mortgaged it while incurring RSA No.440 of 2010 Page 1 of 7 Kanhu Charan Mahapatra @ Karunakar Das & Others Vrs. Ananda Ch. Mahapatra and Another loan for which a transaction was held on 1st December, 1986 but mistakenly a sale deed was executed between the parties which was never intended, consequent upon which, both plaintiff No.1 and defendant No.2, the vendee agreed for its retransfer as they realized such mistake immediately thereafter leading to the execution of an agreement with the above understanding. As per the pleading, it is the further case of the appellants is that the loan amount with interest was returned to defendant No.2 and to accomplish the retransfer with execution of a sale deed in respect of the suit land, defendant No.1 was engaged but once again, the sale deed dated 13th March, 1987 came into being to the utter dismay of plaintiff Nos.2 and 3 as plaintiff No.1 was not available by then for having renounced the world. Since fraud was played upon and the mistake was acknowledged by defendant No.2 with regard to the execution of the sale deed which was intended to be a mortgage and as the original sale deed was returned to plaintiff Nos. 2 and 3, the subsequent purchaser, namely, defendant No.1 did not acquire title over the suit land more so when, defendant No.2 was a mortgagee in view of the agreement between the parties affirmed on the date of execution of the sale deed i.e. 1st December, 1986 itself. On the other hand, defendant No.1 contested the suit and challenged the claim of the plaintiffs alleging that there has been sale deed executed at the first instance and thereafter, the second one in his favour and in so far as the agreement dated 1st December, 1986 is concerned, the same was manufactured to meet the case. As to defendant No.2, he supported the plaintiffs and examined himself as a witness from their side opposing defendant No.1 without contesting the suit. The learned civil court framed as many as six issues and finally, dismissed the suit on contest against defendant No.1 and exparte vis-à-vis defendant No.2. The judgment and decree dated 30th April, 2008 in T.S. No. R.S.A No. 440 of 2010 Page 2 of 7 Kanhu Charan Mahapatra @ Karunakar Das & Others Vrs. Ananda Ch. Mahapatra and Another 165 of 1995 was challenged by the plaintiffs but result was the same as the appeal was also dismissed. Being aggrieved of the findings and impugned decision of the learned Lower Appellate Court, the plaintiffs have approached this Court. 3. Considering the pleadings on record, the Court by order dated 12th August, 2011 formulated the following substantial questions of law: (i) Whether the learned courts below have erred in law in not adjudicating the plea of blending specifically raised by the plaintiff which would have automatically made the so-called sale deed under Ext.3 executed by plaintiff No.1 in favour of defendant No.2 void in law? (ii) Whether the learned courts below are correct in ignoring the agreement under Ext.4 which specifically reflects the admission of defendant no.2 that Ext.3 is not a sale deed but a mortgage, which aspect in that case was not required to be proved as per Section 18 of the Evidence Act. (iii) Whether defendant No.1 can acquire any title by virtue of his purchase from defendant No.2 when the latter agreed under Ext.4 that he has not purchased the suit property from plaintiff No.1 by Ext.3 which is merely a mortgage?
Legal Reasoning
4. Heard learned counsel appearing for the respective parties. 5. Mrs. Mohanty, learned counsel for the appellants submits that the learned courts below fell into error and committed illegality in dismissing the suit disbelieving the plea advanced with evidence on record which clearly proved and established that plaintiff No.1, namely, the father of other two plaintiffs and defendant No.2 intended to go for a mortgage since the former had availed a loan of Rs.5000/- from the latter supported by an agreement dated 1st December, 1986 and evidenced by other materials. Mrs. Mohanty further submits that plaintiff No.1 acquired the suit land out of the joint nucleus which blended into the family and hence, he had no absolute authority to dispose of the same if at all the transaction dated 1st December, 1986 to be really believed. Hence, according to Mrs. Mohanty, the learned Lower R.S.A No. 440 of 2010 Page 3 of 7 Kanhu Charan Mahapatra @ Karunakar Das & Others Vrs. Ananda Ch. Mahapatra and Another Appellate Court miserably failed to consider and appreciate the evidence on record led from the side of the plaintiffs and erroneously reached at a conclusion confirming the decision rendered in the suit, hence, therefore, the impugned judgment in appeal is liable to be interfered with and set aside. 6. Per contra, Mr. Mohanty, learned counsel for respondent No.1 would submit that both the courts below did not commit any mistake and rightly the suit was dismissed. It is contended that the respective parties entered into valid transactions on 1st December, 1986 and 13th March, 1987, whereas, the alleged claim of the plaintiffs was correctly rejected. Mr. Mohanty further submits that the evidence on record revealed that it was not a case of mortgage between plaintiff No.1 and defendant No.2, who wholeheartedly participated and with full knowledge had a transaction of sale on 1st December, 1986 and later on, the second sale deed was executed transferring the title in favour of defendant No.1 and notwithstanding the evidence of defendant No.2 in favour of the plaintiffs, the learned courts below suspected the conduct having advanced a plea of mortgage with the conclusion that the same to be improbable. Thus, Mr. Mohanty submits that the findings of the learned Lower Appellate Court affirming the findings in the suit is based on the evidence and in accordance with law, so therefore, the appeal is liable to be dismissed. 7. From the materials on record, it is made to suggest that plaintiff No.1, sometime after the execution of the sale deed dated 1st December, 1986, abandoned his family renouncing the world and in the mid of 1988, executed a Power of Attorney in favour of plaintiff No.3. The pleading of the plaintiffs is that on 1st December, 1986, soon after the execution of the sale deed marked as Ext.3, for having realized the mistake, plaintiff No.1 and defendant No.2 had an agreement R.S.A No. 440 of 2010 Page 4 of 7 Kanhu Charan Mahapatra @ Karunakar Das & Others Vrs. Ananda Ch. Mahapatra and Another i.e. Ext.4 in place but no retransfer could take place, rather, it stood intervened by the sale deed dated 13th March, 1987 i.e. Ext.9/e which is also marked as Ext.A/6 from the side of defendant No.1. 8. Regarding the loan availed by plaintiff No.1 mortgaging the valuables of a local deity and having received an amount of Rs.5000/- from defendant No.2 have not been substantiated by any document instead sought to be established through oral evidence. As state before, defendant No.2 was examined as P.W.8 to support the plaintiffs. The details of the circumstances under which the movables of the deity were pledged for loan did not find favour with by the learned courts below. The cause of action for institution of the suit arose on 20th November, 1989 when defendant No.1 informed plaintiff Nos. 2 and 3 to vacate the suit land, he having purchased it vide Annexure- A/6. According to the plaintiffs, no consideration was paid for and at the time of execution of Ext.A/6 nor possession of the suit land was ever delivered to defendant No.1. It is alleged that the said was a sham transaction and the agreement between plaintiff No.1 and defendant No.2 was basically a mortgage. The sale deed dated 1st December, 1986 and its execution is not denied by defendant No.2. The possession of the original sale deed by plaintiff Nos.2 and 3 is shown to be a strong piece of evidence to prove that Ext.4 was executed on 1st December, 1986 and the parties to it immediately agreed for a retransfer of the suit land which however failed to take place. The plaintiffs did not seek any relief to declare Ext.3 as invalid instead challenged Ext.A/6 to which defendant No.2 was a party. It was for the plaintiffs, in the considered view of the Court, to challenge Ext.3 as void and not binding to the parties, which was not resorted to. The details of the circumstances surrounding the agreement for mortgage leading to the execution of Ext.3 by mistake of the R.S.A No. 440 of 2010 Page 5 of 7 Kanhu Charan Mahapatra @ Karunakar Das & Others Vrs. Ananda Ch. Mahapatra and Another scribe with evidence carrying such a relief could have been pleaded and asked for, which the plaintiffs did not do and accomplish. There has been no attempt from the side of plaintiff No.1 to go for cancellation of the deed or any such retransfer soon thereafter, if mistake was realized though the same stands explained by claiming that he renounced the world. Quite interestingly, defendant No.2, the vendee to Ext.3 having supported the plaintiffs became a party to the transaction i.e. Ext.A/6. Strangely enough, defendant No.2 pleaded in favour of the plaintiffs despite a vendor to Ext.A/6 when he had entered into an agreement vide Ext.4 to retransfer the suit land in favour of plaintiff No.1. That apart, plaintiff Nos. 2 and 3 remained silent for nearly two years even after engaging defendant No.1 claiming him to be a cousin of their father, namely, plaintiff No.1. It is highly improbable for someone to believe that there was no sale deed executed on 1st December, 1986 as the attendant circumstances rather proved it. In so far as Ext.4 is concerned, the same does not bear signature or any endorsement of plaintiff No.1, if such was the decision between him and defendant No.2 for retransfer of the suit land. Ext.4 is a plain paper document, genuineness of which, was doubted by both the courts below especially considering the conduct of the parties, who are well educated and aware of the consequences to emerge. 9. As to the claim of disposal of a joint family property affecting the interest of plaintiff No.2 and 3 and plea of blending, it is made to reveal from the evidence that the suit land was acquired by plaintiff No.1 and by then plaintiff Nos. 2 and 3 were young and unmarried. It is not a case that plaintiff Nos.2 and 3 were having independent sources of income by the time the property was purchased. If a Hindu family is in jointness and acquired properties independently through its members and the same are thrown to the common stock, R.S.A No. 440 of 2010 Page 6 of 7 Kanhu Charan Mahapatra @ Karunakar Das & Others Vrs. Ananda Ch. Mahapatra and Another under such circumstances, a plea of blending may be raised. In other words, an independent member of the joint family after having purchased a property if throws it to the common pool for being enjoyed by all, when separate interest is claimed by him over the same, the other joint owners may oppose by pleading that it stands blended into the family. Such is not the case of the plaintiffs, rather, the suit land was purchased by plaintiff No.1 and as a self-acquired interest, the same appears to have been disposed of in favour of defendant No.2. So therefore, the argument on the strength of blending as advanced from the side of plaintiffs shall have to be rejected. 10. Neither the mortgage between plaintiff No.1 and defendant No.2 as it was intended could be established nor any such credible evidence was placed on record nor the transactions under Exts.3 and A/6 could be impeached leaving it open for the learned courts below to entertain serious doubt which is perfectly normal. The particular details surrounding both the transactions have been taken cognizance of by the learned Trial court and also about the conduct of defendant No.2 with a conclusion reached at and confirmed in appeal and therefore, the Court is of the humble view that the same needs no interference. With the discussions as aforesaid, the substantial questions of law stand answered. 11. Hence, it is ordered. 12. In the result, the appeal stands dismissed, however, in the circumstances, without any order as to cost. Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Dec-2023 10:00:22 Balaram (R.K. Pattanaik) Judge R.S.A No. 440 of 2010 Page 7 of 7