High Court
Case Details
A.F.R. HIGH COURT OF ORISSA : CUTTACK RSA No.219 of 2016 - (A) & RSA No.220 of 2016 - (B) 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, Balasore, in RFA No.23 of 2014 & R.F.A. No. 22 of 2014 setting aside the judgment and decree passed by the learned Additional Civil Judge (Senior Judge), Balasore in C.S. No.718/2005-I. ……… RSA NO.119 OF 2016 Subas Ranjan Das & Another -:: VERSUS ::- :::: Appellants. Manas Ranjan Das & Others :::: Respondents. RSA NO.220 OF 2016 Subas Ranjan Das -:: VERSUS ::- :::: Appellant. Manas Ranjan Das & Others :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellants … Mr. R.K. Mohanty, Sr. Advocate (In both RSA Nos.219 & 220 of 2016) For Respondents … Mr. B.C. Panda, Advocate (R.1) Mr. K. Mohapatra, Advocate (PLRs of R.12 & R.14) Mr. Ch. N.C. Das, Advocate (R.2 to R.11 & R.13 & R.15) (In both R.S.A. Nos.219 & 220 of 2016) CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 06.03.2024 :: Date of Judgment: 15.04.2024 --------------------------------------------------------------------------------------- D.Dash,J. Since in both these Second Appeals, as at (A) and (B), filed by the Appellants under section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) arise out of the common judgment and decree passed in R.F.A. No.22 of 2014 and R.F.A. No.23 of 2014 of the Court of the District Judge, Balasore, those were heard together for their disposal by this common judgment.
Legal Reasoning
These two Appellants of both the Appeals as the Plaintiff had filed the suit (Civil Suit No.718 of 2005) and with that another suit (Civil Suit No.1028 of 2006) filed by the Respondent No.1 as the Plaintiff came to be tried and disposed of by the learned Additional Civil Judge (Senior Division), Balasore. The first suit, i.e., C.S. No.718 of 2005 is for partition of the suit land by metes and bounds and permanent injunction against the Respondents (Defendants) in respect of the suit land as also other consequential reliefs. This Respondent No.1 as the Plaintiff who is the Defendant No.1 in the Civil Suit No.718 of 2005 as the Plaintiff filed C.S. Page 2 of 18 No.1028 of 2006 seeking declaration of his absolute right over the suit land and permanent injunction with other consequential relies. Both the suits were tired analogously since the parties and the subject matter of the suit remain the same. The Trial Court decreed C.S. No.718 of 2005 preliminarily in part holding Respondent No.1-Defendant No.1 in first suit and Plaintiffs of the second suit as entitled to 1/4th share each. The other suit, i.e., C.S. No.1028 of 2006 was dismissed. So, the Respondent Nos.1 and 2 as the Respondent No.1 remained unsuccessful Plaintiff in the suit filed by him and also being under the sufferance of the judgment and preliminary decree passed in the suit filed by the present Appellants as the Plaintiffs carried two Appeals under section 96 of the Code. Both those Appeals have been allowed. Resultantly, the suit filed by these Appellants as the Plaintiffs in C.S. No.718 of 2005 has been dismissed and the suit filed the Respondent No.1 as the Plaintiff has been decreed declaring his right, title and interest over the suit land and permanently restraining these Appellants and others and Respondent Nos.2 to 17 (Defendants) from interfering with his peaceful possession over the suit land. Hence, these Appellant No.1 being non-suited in the suit (C.S. No.718 of 2005) with his brother-Appellant No.2 and also having suffered from the judgment and decree passed in the suit filed by the Respondent Page 3 of 18 No.1 as the Plaintiff, i.e., Civil Suit No.718 of 2005 have filed these Second Appeals. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as per the position as they have been assigned in Civil Suit No.718 of 2005. 3. As per the case of the Plaintiffs, the Plaintiffs has inter alia stated the relationship amongst the parties by providing the following family tree: GENEALOGY Mahendranath Niranjan Bibhutibhusan Ganesh Srustidhar Manasranjan (D-1) Subasranjan (Plaintiff) Sribasranjan (Plaintiff) Pramotha Prasanta Pradeep Pratap (D-8) (D-5) (D-7) (D-6) Ajay (D-2) Sanjay Bijay (D-3) (D-4) It is their case that the four sons of Mahendranath were living in joint mess and property and during that time some properties had been purchased from out of the income of the joint Page 4 of 18 family property and at the expense of that. Niranjan died about 20 to 22 years prior to the suit leaving behind the Defendant No.1. Bhibuti is stated to have died 40 years prior to the suit leaving behind Defendant Nos.5 to 8 as his heirs and successors. Ganesh is said to have died leaving behind the Plaintiffs as his heirs and successors about 18 years before the suit. It is further stated that Srustidhar died leaving behind Defendant Nos.1 to 4 as his heirs and successors, 15 to 16 years before the suit. The Plaintiffs state that Bhibuti was staying abroad and his income was very high. So, he relinquished his share over the property in favour of his three brothers. Therefore, 1/4th share of each that of Niranjan, Ganesh and Srustidhar got enhanced to 1/3rd share each. It is stated that Defendant Nos. 5 to 8 being the heirs and successors of Bhibuti have no right, title and interest over the suit land in view of the relinquishment of the share of Bhibuti made by that Bhibuti in favour of his other three brothers. However, in the record of the Major Settlement, their names have been erroneously included. It is next stated that the heirs and successors of Niranjan, Ganesh and Srustidhar were possessing the suit land to the knowledge of Defendant No.5 to 8. The Plaintiffs and Defendant Nos.1 to 4 are living on the suit land as per their requirements. The Plaintiff No.1 being a retired Government Servant is staying at the ancestral house at Anantapur and sometime, also comes to stay in the house over the suit land. The Page 5 of 18 Plaintiff No.2 since is doing business at Balasore, he used to stay in the house over the land described in schedule ‘Kha”. The Defendant No.1 is also staying thereon. During the ‘Raja Sankranti’ falling before the institution of the suit dispute started between the Plaintiff and Defendant No.1. So, the Plaintiff requested the Defendant No.1 to 4 for an amicable partition of the suit land. Although the Defendant Nos.2 to 4 agreed with the proposal, the Defendant No.1 did not come forward to accept the same. He rather attempted to create disturbance on the possession of the suit land. For the same, one suit i.e. C.S. Nos.718 of 2005 came to be filed by the Plaintiff for partition and other reliefs whereas another suit i.e. C.S. No.1028 of 2006 was filed by the Defendant No.1, claiming exclusive right, title and interest over the same land. 4. The Defendant No.1 filed one written statement whereas the other set of written statement was filed by Defendant Nos.9 and 10. Rest of the Defendants were set ex parte. 5. The Defendant No.1 has stated that the Plaintiff have not given the correct genealogy. It is stated that Mahendranath was the common ancestor of the parties and he was the permanent resident at Anantapur. He was having no other income except the income which he was getting from the cultivable land. He was all along staying at his ancestral village till his death. His son Niranjan was serving as Clerk in the Collectorate of Balasore whereas the second Page 6 of 18 son was doing cultivation by staying in that village at Anantapur. The third son, namely, Ganesh was serving as a Jailor and during his service carrier being posted at different places of State ultimately settled at Cuttack permanently where he died. Srustidhar, the fourth son of Mahendranath was also a Government servant and after having working at different places of the State, he died when was residing in a rented house at Cuttack. 6. It is stated that the father of the Defendant No.1-Niranjan keeping in view the future of his children and in order to make provision for them had purchased land in his own at Gopalgaon of Balasore Town. He had good relationship with his brothers. The father of the Plaintiff was also very supportive to him and helping him at the time of his requirements. On 08.05.1934, the Plaintiff’s father was engaged for getting a sale deed drafted in the name of Niranjan, the father of the Defendant No.1 for purchase of the suit property. Niranjan then went to the Post Office to withdrawn money which was to be paid to the vendor towards consideration for the said sale transaction. The father of the Plaintiffs, however, instead of getting the sale deed drafted placing Niranjan as the vendee managed to place the name of Mahendranath as the vendee. When Niranjan returned, he came to know the said fact. However, in order to keep the family prestige and background clean, he remained silent stating that except Niranjan the father of Page 7 of 18 Defendant No.1, none had provided a single pie for said purchase of the suit land . Thereafter, Mahendranath executed a ‘Nadabi Patra’ in favour of Niranjan wherein Mahendranath and other brothers of Niranjan too signed. Accordingly, the suit land was mutated in the name of father of Defendant No.1 in the Zamindary Shirasta and since then he was possessed the same as its exclusive owner. Niranjan, the father of Defendant No.1 also purchased Ac.0.15 dec. of land to the southern side of the land in suit and constructed a house over there by keeping the entire land under one enclosure. The house being assessed to holding tax, he paid the same and for the supply of drinking water, water tax was paid by obtaining the receipts. Accordingly, the voter list was also prepared in the name of Niranjan, indicating that he was residing in the house standing over the suit land with his family members, such as the Defendant No.1, two daughters and his wife. Since the year 1934 none had raised any sort of claim over the suit land, this is because they had absolutely no right, title, interest and possession over the suit land. Due to old age as Niranjan, the father of the Defendant No.1 could not look after the Major Settlement Operation and then the Defendant No.1 was serving as a Teacher outside. The Plaintiffs then taking advantage of the situation having gained over the Settlement Authority and being in collusion with them managed to get the suit land recorded in the name of all the four sons of Mahendranath jointly which is Page 8 of 18 attacked by the Defendant No.1 as wholly erroneous and illegal. It is further stated that the ancestral property at Anantapur has been amicably partitioned amongst the parties way back in the year 1964 and separate records of right have been prepared in respect of the land which the parties got in their respective shares. They are also paying the land revenue accordingly. Since the suit land was the exclusive property of the father of Defendant No.1, it was not brought to the hotchpot when the lands of Anantapur were amicably partitioned. It is also stated that the Plaintiffs in order to grab the suit land are now falsely staking the claim over the same. 7. The Defendant Nos.8 and 9, who are the two sisters of Defendant No.1 have stated that the said suit property was the exclusive property of their father-Niranjan and after death of Niranjan, they have relinquished their share in favour of Defendant No.1 and thus he is the absolute owner in possession of the suit property. It is further stated that although initially the sale deed has been prepared in the name of their grandfather- Mahendranath, he later on executed a ‘Nadabi Patra’ in favour of the Defendant No.1 on 21.05.1934, which was to the knowledge of all the sons of Mahendranath and, therefore, Mahendranath as well as all his three sons had singed thereon and accordingly, the suit land was also mutated in the name of Niranjan who was paying rent to the State and then Holding Tax to the local authority for the house constructed by him over the suit land. It is Page 9 of 18 stated that after death of Niranjan, the Defendant No.1 was paying the rent and Holding Tax and having taken electricity connection, water connection and telephone connection also using all such facilities by paying the charges. 8. The Defendant No.1 by filing another suit, i.e., C.S. No.1028 of 2006 has stated all those above facts which he has narrated in the written statement filed in the suit, i.e., C.S. No.718 of 2005. The Plaintiffs of C.S. No.718 of 2005 in their written statement have also reiterated all such facts which they had averred in their plaint. The stand of Defendant Nos.8 and 9 has remained the same in both the suits, which runs in favour of Defendant No.1 (Manas Ranjan Das). Although the Trial Court framed separate set of issues in both the suits, the rival claim of the parties being the same in both the suits and one set of evidence having been let in, first of all the rival claim of the Plaintiffs as regards the ownership of the suit property covered under Issue No.3 and 4 of both the suits have been decided together. The Trial Court upon examination of evidence and their evaluation arrived at a conclusion that the suit properties is the joint family property of the parties. Basing upon that answer to the above issue, the Trial Court has decided the fate of both the suits and the outcome has been that the suit land is liable to be partitioned amongst the parties. The Trial Court then Page 10 of 18 passed necessary orders as regards the entitlement of the share of the parties over the suit land. 9. The Defendant No.1 of the Civil Suit No.718 of 2005 who is the suitor of C.S. No.1028 of 2006 then filed two Appeals under section 96 of the Code. 10. The First Appellate Court with the rival pleadings of the parties formulated the following point for determination:- “Whether the suit land is the joint family property of the parties or the exclusive property of Niranjan, the father of the Defendant No.1?” 11. Proceeding to decide the said point, upon independent examination of evidence and their evaluation at its level, the First Appellate Court has recorded a finding which is contrary to the findings of the Trial Court. The First Appellate Court has held the suit property to be the exclusive property Niranjan and as such the Defendant No.1 (Manas Ranjan Das) being the son of Niranjan and in view of relinquishment of share and interest of his two sisters Defendant Nos.8 and 9 in his favour has allowed the two Appeals by passing the order that it is he (Manas Ranjan Das-Defendant No.1) who is the owner in possession of the suit land and he has the right, title, interest and possession over the suit land wherein no other family members being the descendants of Mahendranath has any interest. Page 11 of 18 12. The Appeal has been admitted to answer the following substantial questions of law:- (i) Whether in the facts and circumstances of the case as emanate from the rival pleadings, the view taken by the First Appellate Court that as the value of the property was less than Rs.100/-, since the deed of relinquishment (Ext.NN) was made with the delivery of possession, there was no necessity for registration of the same and if for want to registration, said document is not in admissible? (ii) Whether the First Appellate Court is right in upsetting finding of the Trial Court and holding that the property is not the joint family property by ignoring the joint recording of the said land under Ext.2 coupled with the Yadast under Ext.12 and taking a view that the deed, Ext.NN is admissible in evidence and as such the Defendant No.1 is the absolute owner in possession of the same?
Legal Reasoning
13. Mr. R.K. Mohanty, learned Senior Counsel for the Appellants (Plaintiffs) submitted that Mahendranath had relinquished the right, title and interest over the suit land in favour of Niranjan, the father of the Defendant No.1 is not legally acceptable, He submitted that the view taken by the First Appellate Court that ‘Nadabi Patra’ dated 23.03.1934, which has been admitted in evidence and marked Ext.NN is not required to be registered since the valuation of the property therein was less than Rs.100/- at the relevant time is not legally tenable. He further submitted that when the sale deed in respect of the suit land stood in favour of Mahendranath only, the question of relinquishment of his right, Page 12 of 18 title and interest over the suit land which he had acquired by virtue of purchase in favour of Niranjan is not legally acceptable as Niranajn by then had no interest over the said land with his father Mahendranath and, therefore, the question of relinquishment of the interest by Mahendranath in favour of Niranjan is not recognizable in the eye of law. He submitted that when the sale deed in question, in the name of Mahendranath was a registered one, the ‘Nadabi Patra’ even though the value of the suit property is less than Rs.100/- under the circumstance without being registered, ought not to have been accepted in the eye of law as to have come into being having its force as such as per law. He further submitted that the First Appellate Court on the face of the recording of the suit land in the Major Settlement Operation under Ext.2 basing upon the Yadast record under Ext.12 simply placing reliance upon the ‘Nadabi Patra’ (Ext.NN) ought not to have held the suit property to be the exclusive property of Niranjan and as such has been succeeded by his son, the Plaintiff since his two sisters have not advanced any claim. 14. Mr. B.C. Panda, learned counsel for the Respondent No.1 (Defendant No.1) submitted all in favour of the finding returned by the First Appellate Court holding the suit property to be the exclusive property of Niranajn, the father of the Defendant No.1. He submitted that the suit property was acquired way back in the year 1934 and as the evidence would go to show that soon after the Page 13 of 18 acquisition, Mahendranath had executed the Nadabi Patra (Deed of Relinquishment) and thereafter, the suit property, has been mutated in the name of Niranjan, the Defendant No.1’s father and it has continued to hold the field up-till the publication of the Major Settlement Record of Right, and till then there has been no challenge to that recording of the suit land in the name of Niranjan which prevailed upon for such long length of time. He, therefore, submitted that even though, it is accepted that the property had been purchased by Mahendranath and for a moment it is said that he could not have executed a ‘Nadabi Patra’ as Niranjan had no interest on the said land along with Mahendranath when the evidence on record reveal that basing upon the same, mutation of the suit land had been carried in the name of Niranjan from which presumption gets drawn as per law that the possession of the suit land remained with that Niranjan all along and that rather that is backed by the execution of the document (Ext.NN) which was coupled with the delivery of possession, the Frist Appellate Court is absolutely right in whittling down the claim/case of the Plaintiff that the property is the joint family property merely it is so claimed banking upon the Major Settlement Record of Right. 15. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have also gone through the pleadings and have perused the evidence, both oral and documentary, let in by the parties. Page 14 of 18 16. One very important and significant facet touching upon the first question to be determined is with regard to the nature of property involved in the suit, first of all comes in mind when the pleadings and the evidence are simultaneously gone through. It is the fact that the original registered sale deed which is of the year 1934 by which the suit land had been acquired has been produced and proved from the side of the Defendant No.1 and has been marked as Ext.Z. There comes absolutely no explanation from the side of the Plaintiffs as to how said base document relating to the suit land had been in the custody of the Defendant No.1. Thus when the very claim of the Defendant No.1 is that the suit land under some circumstance because of the plot which had been hatched by Ganesh had been made in the name of Mahendranath and that being immediately detected, soon thereafter Mahendranath had executed the ‘Nadabi Patra’ does not appears to be totally baseless. The Defendant No.1 when has produced and proved the original sale deed as well as that ‘Nadabi Patra’ an inference is clearly available to be drawn that either Niranjan from the very beginning was possessing that original registered sale deed and was keeping the same in his custody or that it was so handed over to him by Mahendranath at the time or after some time before the ‘Nadabi Patra’ was executed or thereafter. It is true that ‘Nadabi Patra’ (Ext.ZZ) is an unregistered one. Even though it is found that the said document has been nomenclature as ‘Nadabi Page 15 of 18 Patra’, it would not be correct to say so for the reason that when under the sale deed the executant had acquired the right, title and interest over the property in question and that Niranjan under that deed was having no interest and his case is that he was actually the owner of the whole; there could not have been the relinquishment of the interest by Mahendranath in favour of Niranjan. Yet under the circumstance, it has to be said to have been executed by Mahendranath in favour of Niranjan. The sale deed by which the property was acquired if is accepted as it is then Mahendranath was the owner. If the Plaintiff’s case is accepted that it was to be purchased by him but his name was substituted by the name of Mahendranath, then also Mahendranath could not have relinquished anything as he had nothing to relinquish, because it was purchased by Niranjan. In my considered view the document under the circumstance could not be construed as a document of relinquishment. The value of the immovable property in question being less than Rs.100/-, for its acquisition, a registered sale deed was not necessarily required in law for the tile to be so transferred, which is so needed for a gift which is only to be made by a registered instrument even though the value of the property at the subsequent documentation remains less than Rs.100/-. The document even though not correctly nomenclatured as ‘Nadabi Patra’ which could not have been but as that document bears signature of all the sons of Page 16 of 18 Mahendranath, it can well be construed to be a deed of “Family Arrangement”. The view is fortified from the subsequent happenings that Niranjan having obtained that document has gone for mutation of the said land which has been allowed without being objected to and that has prevailed in the field up-till the publication of the record of right in the Major Settlement Operation and till then it has not been challenged by anyone. Moreover, when during the Major Settlement Operation that “Nadabi Patra’ (Ext.NN) had been produced and other documents, such as payment of electricity charges, water charges are admitted in evidence those stand in support of the possession of the property by the Defendant No.1 and, therefore, the finding that the property is the property of Niranjan wherein other family members have no share derives all the reasons and basis to stand firmly on the ground. Furthermore, the exclusive possession of Niranjan is well proved through overwhelming evidence especially the document proved from the side of the Defendant No.1 and the other evidence that all other joint family properties of the parties had been separately recorded, further provide great strength to the case of the Defendant No.1. The stand against the case/claim of the Plaintiff. The Family Bantan Patra (Ext.PP) further stands to support the case of the Defendant No.1 and this document (Ext.NN) in the facts and circumstances is to be taken as an addendum to that (Ext.PP). Page 17 of 18 The answers to the substantial questions of law are returned against the Plaintiffs which in turn lead to confirm the judgment followed by the decrees passed by the learned District Judge, Balasore in R.F.A. No.219 & 220 of 2016. 17.
Decision
In the result, both the Appeals are dismissed. The judgment and decree passed in the First Appeals (RFA No.22 of 2014 and R.F.A. No.23 of 2014) dismissing C.S. No.718 of 2005 and decreeing C.S. No.1028 of 2006-I) are hereby confirmed. No order as to costs. Sd/- (D. Dash), Judge. True Copy P.A. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 29-Apr-2024 19:09:15 Page 18 of 18