Civil Suit No. 244 of 2006 · The High Court · 2015
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.120 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 4th August 2015 and 18th August 2015 respectively passed by the learned 2nd Additional District Judge, Khurda in R.F.A. No.37 of 2011 confirming the judgment and decree dated 30th August 2011 and 13.09.2011 respectively passed by the learned Civil Judge (Senior Division), Khurda in Civil Suit No.244 of 2006. ---- Aruna Kumar Mohanty & Others …. Appellants -versus- Ritanjali Mohanty & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ======================================================= For Appellants - Mr. Amitav Das, (Advocate). For Respondents - Mr. Sudarsan Behera, Lingaraj Sarangi, (Advocates). CORAM: MR. JUSTICE D. DASH Date of Hearing : 04.04.2024 :: Date of Judgment: 15.04.2024 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 dated 4th August 2015 and 18th August 2015 respectively passed by the learned 2nd Additional District Judge, Khurda in R.F.A. No.37 of 2011. RSA No.120 of 2016 Page 1 of 9 The predecessors-in-interest of these Appellants namely,
Legal Reasoning
Lachhaman Mohanty as the Plaintiff had filed the Civil Suit No.244 of 2006 in the Court of the learned Civil Judge (Senior Division), Khurda. The suit is for permanent injunction and mandatory injunction against the Respondent No.1 (Defendant No.1) from entering upon the suit property and creating any sort of disturbance in the peaceful possession of the Lachhaman (original Plaintiff) over the suit land and for mandatory injunction by way of eviction if the Respondent No.1 (Defendant No.1) takes the possession of the suit property during the pendency of the suit. The Trial Court having dismissed the suit, the said Lachhaman, the original Plaintiff being non-suited had carried the Appeal under section-96 of the Code. During pendency of the First Appeal, Lachhaman having died, these Appellants came to be substituted in his place and they pursued the First Appeal. The First Appellate Court has dismissed the said Appeal and thereby, confirmed the judgment and decree passed by the Trial Court. Hence, the present Second Appeal is at the instance of the Appellants (substituted Plaintiffs). 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. RSA No.120 of 2016 Page 2 of 9 3. Plaintiff’s case is that the suit property measuring Ac.0.36 decimals from out of Ac.0.109 decimals on the middle portion of the land under Khata No.132 assigned with Plot No.484 in mouza Naragada forms a part and parcel of the dwelling house of the Plaintiff and Defendant No.3. The same being the homestead land is used as Bari for keeping paddy seeds, straw bundles and rest portion of it has been in use as the threshing floor since long. Further case of the Plaintiff is that there has been no division of the suit property of any point of time and it stands jointly recorded in the name of the Plaintiff, Defendant Nos.2 and 3. On 25.09.2006, when the Plaintiff was present, the Defendant No.1 who is a stranger to the family attempted to make entry upon the suit property by claiming her ownership over the same. The original Plaintiff then made inquiry and learnt that Defendant No.2 has executed a registered sale deed on 23.09.2006 in respect of the suit property in favour of Defendant No.1. Though that suit property is the dwelling house of the undivided family and as such it was not permissible to be sold by the Defendant No.2 that too without the consent of the Plaintiff and Defendant No.3, the sale deed has come into being. It is stated that the Plaintiff thereafter approached the Defendant No.2 to persuade Defendant No.1 to transfer the suit land in his favour on receipt of consideration amount. RSA No.120 of 2016 Page 3 of 9 However, the Defendant No.2 took no interest in the matter. Thus, being left with no option, the Plaintiff instituted the suit to restrain Defendant No.1 who is a stranger to the family from having joint possession or common enjoyment of the suit property along with the Plaintiff and Defendant No.3 on the basis of said purchase of the undivided share of Defendant No.2 over the land. 4. The Defendant Nos. 1 & 2 filed separate written statement, whereas Defendant No.3 was set ex-parte. It is stated by Defendant No.2, the suit property stands recorded jointly in the name of the Plaintiff, Defendant No.2 and Defendant No.3. He states to have been holding the property in his independent capacity and not as member of the joint family. According to him, the suit property is not the joint family property nor the undivided dwelling house. It is stated that the suit property is his absolute property. He as well as the Plaintiff and Defendant No.3 have been living separately since long and there had been complete severance of status of the joint family. It is further stated that suit plot has been divided between them and it is only after such division, the Defendant No.2 has also alienated his share to one Shakuntala Mohanty by registered sale deed dated 29.10.1984. It is stated that in order to repay the loans incurred to meet marriage expenses of his granddaughter, he sold the suit property on 23.09.2006 to the RSA No.120 of 2016 Page 4 of 9 Defendant No.1 for valuable consideration and had delivered the possession to the same to the Defendant No.1. Such sale is said to have been made with the knowledge of the Plaintiff and thus has the force in the eye of law. The Defendant No.1 in filing his written statement has supported the case of the Defendant No.2. 5. The Trial Court upon examination of evidence and their evaluation and further keeping in view the provisions contained in section-44 of the Transfer of Property Act, 1882 (for short, the T.P. Act) and the ratio decided in several decisions which have been referred to has rendered the answer as under:- factual potion of “The the suit property as forthcoming from the evidence, in my opinion is not an undivided dwelling house, for which Section-44 of the T.P. Act does not apply to it. As it has been held that the suit property is not the undivided joint family property, the plaintiff has no cause of action to institute a suit U/S.44 of T.P. Act.” Practically, the above answer has led the Trial Court to dismiss the suit. The unsuccessful Plaintiff then having carried the First Appeal which on his death was pursued by his legal representatives (substituted Plaintiffs); the First Appellate Corut upon examination of evidence independently at its level and their evaluation has affirmed the findings of the Trial Court and confirmed the dismissal of the suit. RSA No.120 of 2016 Page 5 of 9 6. The Appeal has been admitted to answer the following substantial question of law: - “Whether the finding of the Trial Court that the suit property is not the undivided dwelling house of the Appellants the (substituted Plaintiffs) Respondents (Defendants) suffers from the vice of perversity?” and 7. Heard learned Counsel for the Appellants and the
Legal Reasoning
learned Counsel for the Respondent Nos.1 and 2 at length. 8. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below and have also perused the pleadings and the cited documents. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 9. The very suit of the Plaintiff is for permanent injunction and mandatory injunction as against Defendant No.1, stands on the base and founded upon the provision contained in section-44 of the T.P. Act. The essential ingredients required to be satisfied for availing the benefit of the provisions under section-44 of the T.P. Act are that:- (1) the house must be a dwelling house; (2) it must be belonging to undivided family; and (3) a share of such dwelling house must have been transferred to a person who is stranger to the family. RSA No.120 of 2016 Page 6 of 9 Adverting to the case, we find that the Plaintiffs has pleaded that the Defendant No.2 has alienated his share in the dwelling house belonging to the undivided family falling within the ambit and scope of the provisions of section-44 of the T.P. Act to the Defendant No.1. The Plaintiff’s son examined as P.W.1 has stated that the suit property is a piece of ancestral dwelling house. However, his evidence is that his father as well as Defendant No.3 have got residential house on a portion and they use this suit property as Bari for keeping paddy sheaves and straw bundles and that during harvesting season, the portion of the suit land is being used as threshing floor. He in clear terms has also stated that the Plaintiff is residing in separate holding and the Defendant Nos.2 and 3 are residing in their ancestral house situated at Upper Sahi of village Naragada on their allotted shares of land. It is also his evidence that the suit property had been jointly purchased by the Plaintiff and the Defendants (except the Defendant No.1) as such has been recorded in their names in the record of right published in the year 1997. When it is said so that the land having been jointly purchased by the Plaintiff and Defendants (except Defendant No.1), the land does not get attached to it, the character of joint family dwelling house. It is also not shown that the Plaintiff and Defendant Nos.2 and 3 at the time of purchase were in joint mess and estate and from the very RSA No.120 of 2016 Page 7 of 9 date of purchase, they remained in joint/ common enjoyment in so far as the purchased suit property is concerned. In fact, the evidence of P.W.1 has totally demolished the case of the Plaintiff when he has said that they are residing in other portion of the suit plot for last 7 to 8 years prior to his giving the deposition in Court and the Defendant No.2 had shifted to Upper Sahi in the year 1999 after the house constructed by Defendant No.2 over the suit property was demolished in the Supper Cyclone, leaving the suit property vacant. His categorical evidence is that since the year 1982, his father (original Plaintiff) and the Defendant Nos.2 and 3 are residing in separate places. His evidence is again on the score that the suit land was lying fallow and vacant when he deposed. He has stated that his father, the Plaintiff is residing separate from the Defendants under separate mess since the year 1982. The Defendant No.2, being examined as P.W.2 has admitted during cross-examination to have sold 1/3rd portion of the suit plot to one Shakuntala Mohanty. With all the above obtained evidence on record, this Court is led to hold that the finding of the Trial Cout as has been affirmed in the First Appeal that the suit property is not the undivided dwelling house so as to be falling within the ambit of section-44 of the T.P. Act is the outcome of just and proper appreciation of evidence. RSA No.120 of 2016 Page 8 of 9 10. In the wake of aforesaid discussion and reasons, the substantial question of law stands answered against the Appellants (substituted Plaintiffs) which in turn leads to confirm the judgments and decrees passed by the Courts below. 11. In the result, the Appeal stands dismissed. However, there shall be no order as to cost. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 23-Apr-2024 18:04:28 RSA No.120 of 2016 Page 9 of 9