Basanta Kumar Parida & Others v. Smt. Khulana Sundari Parida & Others
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.194 of 2023 In the matter of an Appeal under Section-100 of the Code of Civil Procedure, 1908 assailing the judgment dated 27th December, 2022 passed by the learned Additional District Judge, Kujang in RFA No.07 of 2019 setting aside the judgment and decree dated 10th December, 2018 & 14th December, 2018 respectively passed by the learned Civil Judge (Sr. Division), Kujanga in Civil Suit No.e- 303-2016 (49-2012). ……… Basant @ Basanta Kumar Parida & Others Versus Smt. Khulana Sundari Parida & Others : : Appellants Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- … Mr. Manoj Mishra, Sr. Advocate, Mr.T. Mishra, S.S. Parida, A. Mishra & R. Mishra, (Advocates) For Appellants For Respondents … Mr. S.D. Das, Sr. Advocate Mr. H. Mohanty, K. Sattar, M. Faradish, M.M. Swain & Basudeb (Advocates for R.1 to R.3) ------ CORAM : MR. JUSTICE D.DASH Date of Hearing :19.02.2024 : Date of Judgment:11.03.2024 --------------------------------------------------------------------------------------- {{ 2 }} D.Dash,J. The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed the judgment dated 27.12.2022 passed by the learned Additional District Judge, Kujang in R.F.A. No.7 of 2019.
Facts
The Respondent Nos.1 to 3 as the Plaintiff had filed the suit C.S. No.e-303-2016 (49-2012) in the Court of the Civil Judge (Sr. Division), Kujanga arraigning the Appellants and the Respondent Nos.4 to 94 as the Defendants. The suit had been filed by the Plaintiff to declare that they being the legal heirs of one Kali Parida have also got their interest jointly with the Appellant and Respondent Nos.4 to 94 (Defendants) over the suit schedule property and as such are entitled to get the compensation awarded towards the acquisition of said land in accordance with their share as entitled to. The suit stood dismissed. So, the Plaintiff being non- suited had carried the Appeal under section 96 of the Code which has been allowed and the Respondent Nos.1 to 3 have been declared to be having the joint interest with the Appellant and Respondent Nos.4 to 94 (Defendants) over the suit schedule property and as such are also entitled to get the compensation. It is, therefore, stated that the Defendant Nos.1 to 7 have come before this Court with the Second Appeal. 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. Page 2 of 12 {{ 3 }} 3. The genealogical tree, as has been provided by the Plaintiff, is as under:- GENEALOGY Late Gopi Late Kali Parida (1928)=Rohini (W) 1965 Baraju (1955) =Chanda(W) Karuni Narayan (2009) Chandramani (2004) Sundari (W)(D-11) =Guni(1977 Siba Babaji (2010) Rajendra Bhanupriya (D-2) Rabindra (D-8) Debendra (dead unmarried) Basant(D.1) Susant(D.3) Gitanjali(D.7) Hemant(D.4) Puspanjali (D.5) Ritanjali(D.6) Narayan (2009)=Sundari(W) Surendra Dhirendra Khirod Subash Prvash Chandramani(2004) Guni(1977) Baishnab (D.18) Late Amulya Khulana (W)(P.1) Biswaranjan (P.2) Diptiranjan (P.3) The suit land is in village-Bijayachandrapur. The Sabik Record of Right in respect of the said land had been published in the year 1930. The said property appertains to Khata No.4 which stood jointly recorded in the name of Uchhaba and others in which Page 3 of 12 {{ 4 }} one Duryodhan Senapati has 1 Ana-9 Pahi interest and another Arjuni Maharana has got 1 Ana- 11 Pahi interest. It is stated that when the family members of Kali were joint in mess and estate, the eldest son of Kali, namely, Baraju was acting as the Karta and Manager of the family. The suit schedule properties had been purchased in the name of Baraju by two sale deeds dated 12.06.1944 from one Arjuni which was for the land measuring Ac.2.67 dec. and the other one being executed by Duryodhan on 23.02.1951 in respect of land measuring Ac.2.47 dec. The joint family had purchased various properties in the name of Baraju. But all those properties were being jointly possessed. The purchasers of Kali Parida had got seven acres of land in different villages out of which seven acres of land stands recorded in the name of Rohini, the wife of Kalu Parida, the common ancestor of the parties. The parties had several boffolas and even one country boat. Baraju used to keep the usufructs coming from the agricultural land and dealing and managing all the income therefrom as also from the business of the joint family and was meeting every sort of family expenditures. Baraju was also keeping the surplus money with him for purchase of land etc. At one point of time, Baraju could not do any physical work. So, the suit properties were cultivated jointly and the members of family of Kali Parida all started working. The suit property having been acquired, the legal heirs of Baraju have advanced their claims over the awarded compensation excluding all others. Page 4 of 12 {{ 5 }} It is stated that Baraju was not the sole owner of the property and he had only 1/4th share over the same. So, it is said that the purchases have not been clothed with the title in respect of the total land of Ac.3.20 dec. as their vendor has no interest over the same to that extent. The Plaintiffs when came to know that Defendant Nos.19 to 91 have advanced their claim over the awarded compensation for the acquisition of land in question, they filed the suit. 4. The Defendant Nos.1 to 8 in their written statement have stated that the purchase of land made from Arjuni and Duryodhan was from the funds of the joint family and the members of the joint family from the beginning used, enjoyed and treated the said property all along as the joint family property. According to them, Barju was looking after the entire joint family being the Karta and Manager and he was also the custodian of the joint family surplus fund and meeting all the expenses of the family. It is further stated that Baraju had never claimed the suit property as his exclusive property anywhere and so also his legal heirs at no point of time have claimed exclusive ownership over the same when the possession was not resting with them exclusively. It is said that legal heirs of Baraju have got 1/4th interest which runs to the extent of Ac.1.33 dec. of lands. Although all the purchasers have obtained the nominal sale deeds, it is stated that there has been no physical delivery of possession of the property. Page 5 of 12 {{ 6 }} 5. The Defendant Nos.11 to 18 in their written statement pleaded that the properties were just purchased in the name of Baraju. Although the properties were purchased in the name of Baraju, all the family members of Kali were possessing the same since the same was the joint family property. The joint family whose common ancestor is Kali had sufficient nucleus to produce sufficient surplus income to purchase the land and accordingly, the suit land had been purchased in the name of Baraju who was then the Karta of the family and had no other independent source of his own. However, all the family members of Baraju were in possession of the suit land. It is stated that the purchasers have obtained nominal sale deeds. 6. The Trial Court on the above rival pleadings framed the following issues:- “(I) Whether the suit is maintainable? (II) Whether the Plaintiffs have cause of action to file the suit? (III) Whether the suit lands were purchased out of the joint put? (IV) Whether Baraju had purchased the suit land separately? (V) To what extent of share of the parties, if found that Baraju is not the exclusive owner? (VI) To what other relief (s) are the parties entitled?” Page 6 of 12 {{ 7 }} 7. Rightly taking up Issue Nos.3,4 and 5 together for decision as those are interlinked and, therefore, required to be answered in one go; upon examination of evidence and their evaluation, the finding of the Trial Court has gone against the Plaintiff in holding that the properties were the self-acquired properties of Baraju. In essence this answer has led to the dismissal of the suit. 8. The Plaintiff being non-suited having carried the First Appeal, the First Appellate Court upon examination of evidence and their independent assessment at its level has over turned the above finding returned by the Trial Court. It has held the suit property to be the joint family property and not the self-acquired property of Baraju so as to be succeeded only by his legal heirs. 9. The Appeal has been admitted to answer the following substantial question of law:- “Whether with the available evidence and on the face of the settled position of law relating to blending and property when can be said to have been thrown to the common stock, the First Appellate Court is right in upsetting the finding of the Trial Court that the subject matter of the suit is the self-acquired property of Baraju in further holding that it is the property of the joint family wherein the Plaintiffs also with Defendants have the interest?”
Legal Reasoning
assessed which is the subject matter of this suit; there is no dispute in respect of other properties which had been purchased in the name of Baraju and remaining under the enjoyment of all the members of the family of Kali and there comes absolutely no explanation to that effect from the side of the contesting Defendants which again stands as a strong circumstance in favour of the case/claim of the Plaintiffs, which the contesting Defendants are found to have failed to dislodge. In that view of the matter, no fault is found with the finding of the First Appellate Court as regards the nature of the property Page 11 of 12 {{ 12 }} which has been acquired and the disbursement of the compensation which is now the subject matter of the suit. The answer to the substantial question of law thus is rendered in favour of the Plaintiffs which leads to confirm the judgment and decree passed by the First Appellate Court. 14. In the result, the Appeal stands dismissed. No order as to costs. Himansu (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 14-Mar-2024 18:07:59 Page 12 of 12
Arguments
10. Mr. Manoj Mishra, learned Senior Counsel for the Appellants submitted that when the Trial Court upon detail discussion of evidence, both oral and documentary on record and appreciating Page 7 of 12 {{ 8 }} the same from every possible angle and further keeping in view the settled position of law as to when can the property standing in the name of one of the members of the joint family be treated to be the joint family property had rightly answered the issue against the Plaintiff. According to him, the First Appellate Court has committed grave error in upsetting the same. He further submitted that when admittedly the property stood recorded in the name of Barju in the old record of right and it had been purchased by Barju, there being absolutely no evidence that the said property had ever been voluntarily thrown to the common stock of the joint family property and as such blended with the other joint family properties for their enjoyment by all the members of the family and for their benefit; the First Appellate Court in a very casual fashion has differed with the same which, according to him, is unsustainable. 11. Mr. S.D. Das, learned Senior Counsel for the Respondent nos.1 to 3 submitted all in favour of the findings on the crucial issues, i.e., Issue Nos.3,4 and 5 as has been returned by the First Appellate Court. According to him, although the land in question had been purchased in the name of Baraju, the overwhelming evidence on record stand to the effect that from the very beginning, the said property had been treated as the joint family properties and all the members of the joint family were enjoying the same and that was to their benefit when nothing is shown that Baraju was cultivating/ enjoying said property in segregation and Page 8 of 12 {{ 9 }} none was having any say on it. He submitted that with such user and enjoyment of the land as would be evident from the evidence let in by the parties although the said property appears to have been purchased by Baraju as per the sale deeds, presumption arises that right from the time of purchase, that had thrown to the common stock and blended and mingled with all the joint family property and treated as such loosing any independent identity. He submitted that the record position of the suit land has never been challenged and that also provide ample corroboration to the claim of the Plaintiffs. 12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and have extensively travelled through the evidence both oral and documentary. 13. It is not in dispute that the sale deeds of the suit land stand in favour of Barju as the vendor. The sale deeds are of the year 1944 and 1951. Exts.2, 5 and 6 are the Munsarin’s Mistake List, orders in consolidation objection cases and application for correction of record of right. These documents being seen are found to be containing the admission of the legal heirs of Baraju that all the heirs of Kali Parida are entitled to and have the interest over the suit land. The lands other than the suit land which too had been purchased in the name of Baraju alone have also been recorded in the name of all the legal heirs of Kali Parida including Page 9 of 12 {{ 10 }} the Plaintiff as would be evident from Exts.5, 6, 7 and 9. Such evidence provide great support to take a view as to intention voluntarily expressed by the parties as regards their treatment towards the property and accordingly as regards their user when it is not stated that such actions taken were behind their back and thus having the say as to the nature of the property that it was not the joint family property. In so far as the land of village-Jagati is concerned, as has been done in respect of the suit land, the Consolidation Authority has passed the order that the properties purchased in the name of Baraju be recorded jointly in the name of all the legal heirs of Kali Parida and said recording is facing no challenge. Even though, there is no direct evidence as to the status of Baraju in the family as the Karta, yet he being the eldest of the sons of Kali, presumption as to his status as the Karta of the family after the death of Kali arises when no one says that he was not acting as such at all or that had lacked the eligibility. The purchase is in the year 1944 and 1952 and therefore, no direct evidence on the above score at this distance of time is expected to be led by the parties claiming the same to have been treated as the joint family property from the very beginning when that was so voluntarily allowed by Baraju. The evidence on record reveal that the members of the family were exercising their right and enjoying the suit properties as their joint family property and were the beneficiaries of the usufructs coming from the said property as are Page 10 of 12 {{ 11 }} expressed by long standing conduct. That is also found to have stretched overfor quite a long period. Cumulatively viewing all these facts and circumstances emerging in evidence, in my considered view, clear inference stands drawn that the properties are the joint family properties wherein the members of family of Kali have their interest. So, here the Plaintiffs when in that way are found to have discharged the initial burden of proof as to the nature of the property; this Court finds the contesting Defendants to have led no such evidence to the contrary to elbow the onus of proof coming to rest upon them showing that the property was the self-acquired /exclusive property of Baraju which only came to the hands of his legal heirs and not all the members of the family of Kali. Interesting at this stage to note is that now there being the dispute in relation to the property which has been acquired and compensation has been