Civil Suit No. 557 of 2010 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.172 of 2020 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & preliminary decree dated 14th February, 2020 & 27th February, 20 respectively passed by the learned District Judge, Jajpur in R.F.A. No.43 of 2018 confirming the judgment & preliminary decree dated 20th April, 2018 & 30th April, 2018 respectively passed by the learned Senior Civil Judge, Jajpur in Civil Suit No.557 of 2010. Sri Bhikari @ Charan Sahoo ---- -versus- Sri Akshya Kumar Sahoo & Others …. …. Appellant Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Bibekananda Bhuyan, S.Sahoo & P.Mohanty (Advocates) For Respondents - M/s.S.K. Patnaik, M.R.Sarangi,
Legal Reasoning
N.B.Dora & M.K.Mallick (Advocates for R.1) Mr. Manoj Ku. Behera (Advocate for R.2 to 4) CORAM: MR. JUSTICE D.DASH Date of Hearing : 24.01.2024 : Date of Judgment : 08.02.2024 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has RSA No.172 of 2020 Page 1 of 8 {{ 2 }} challenged the judgment & preliminary decree dated 14th February, 2020 & 27th February, 20 respectively passed by the learned District Judge, Jajpur in R.F.A. No.43 of 2018. The Respondent No.1, as the Plaintiff, had filed the suit for partition seeking allotment of 1/3rd share over the suit property in his favour. The present appellant had been arraigned as Defendant No.4 whereas the Respondent Nos.2 to 4 were the other Defendants, who had supported the Plaintiff’s case/claim. The suit, having been decreed preliminarily entitling the Plaintiff, Respondent No.2 (Defendant No.1) and Respondent No.3 (Defendant No.3) to 1/3rd share, each; being aggrieved by the same, the present Appellant (Defendant No.4) had carried the Appeal under Section 96 of the Code, which too has been dismissed. Therefore, the present second Appeal is at the instance of the Appellant, who is aggrieved by the judgments and preliminary decrees passed by both the Courts below. 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 Suit. 3. Plaintiffs’ Case:- The suit land in Schedule-A stood recorded in the name of Gouranga Sahoo, the ancestor of Defendant Nos.1 and 3 and husband of Defendant No.2, namely, Gouranga Sahoo. The RSA No.172 of 2020 Page 2 of 8 {{ 3 }} record of right had been published in the year 1997. Gouranga died in the year 2001. He has survived by the Plaintiff, Defendant No.1 and his widow Janaki as his heirs and successors. Though there was no partition of the above properties amongst the heirs and successors of Gouranga in metes and bounds, it is stated that they were in possession of separate portions of land and enjoying the same. The land in Schedule-B is said to be the purchased land of Janaki, the wife of Grouranga. It is stated that Gouranga had purchased the said land in the name of Janaki, who had no source of income of her own. The present Appellant, during pendency of the suit, has come to be impleaded as party as the Defendant No.4 claiming himself to be the son of Gouranga. During pendency of the suit, as the property in Schedule-B was sold out, the purchaser came to be arraigned as Defendant No.5. The Defendant No.2, having died during suit since all her heirs were there on record, there was no further substitution. 4. The Defendant No.2 with Defendant No.1 had jointly filed the written statement. Their case is that Gouranga had three sons and one daughter and they are Mangaraj, Akshaya, Bhikari and Swarnalata Bhikari, being the legal heirs of Gouranga. According to them, he (Defendant) is also entitling to his legitimate share. It is stated that although in some documents Bhikari (Defendant No.4) had been shown as the son of Nityananda, he in fact is the RSA No.172 of 2020 Page 3 of 8 {{ 4 }} son of Gouranga. The suit initially filed by the Plaintiff, without impleading Bhikari (Defendant No.4) is said to be with a view to grab the property of more extent. Schedule-B property is stated to be an exclusive property of Janaki (Defendant No.2) and she is claiming to be in exclusive possession of the same. 5. The Defendants 3 & 4,, in their written statement, asserted that Defendant No.4 is the son of Gouranga and he is neither the natural son nor adopted son of Nityananda. It is further stated that Plaintiff was reading as the son of Gayadhar Pothal at Kantabani U.P. School. This being the practice in their family, said Nityananda had filed T.S. No.271 of 2000 by mentioning Bhikari (Defendant No.2) to Defendant No.4 as the son of Grouranga. 6. The Trial Court, on the above rival pleadings, has framed as many as six issues. Taking up to answer the most important issue first, i.e., issue no.VI as to the sonship of Defendant No.4, upon examination of the evidence, their evaluation and assessment, the finding has been rendered against the Defendant No.4 holding him to have failed to discharge the burden of proof that he is the son of Grouranga and rather the Plaintiff is said to have been able to show that Bhikari is the son of Nityananda. Then coming to the share of the parties over the suit property in Schedule-A & B. The RSA No.172 of 2020 Page 4 of 8 {{ 5 }} Plaintiff, Defendant No.1 and Defendant No.3 have been held entitled to 1/3rd share. 7. The Defendant No.4, being aggrieved by the judgment and preliminary decree passed by the Trial Court denying his claim of having a share over the suit property, had filed the Appeal under section 96 of the Code. The First Appellate Court, on independent assessment of the evidence of both oral and documentary, as it appears that at its level, has confirmed the finding of the Trial Court as regards the sonship of Bhikari and affixed the seal of approval to the said finding that Bhikari is the son of Nityananda, as has been rendered by the Trial Court. Practically, this finding has led to the dismissal of the First appeal. 8. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Courts below are right in utilizing the recital of sale deed (Ext.7) and voter list (Ext.8) against the Plaintiff ignoring the public documents such as Ext.B-1, Ext.F-1 and Ext.G-1 coupled with the admission of P.Ws. and DWs and the documents like Ext.C and Ext.1 and as such the finding regarding the status of the Defendant No.4 is perverse and stands vitiated?” 9. Heard Mr.Bhuyan, learned counsel for the Appellant, Mr.S.K.Patnaik, learned counsel for the Appellant No.1 and Mr.M.K.Behera, learned counsel for the Respondents 2 to 4 at length. RSA No.172 of 2020 Page 5 of 8 {{ 6 }} 10. In course of hearing, having referred to the evidence both oral and documentary, when Mr.Bhuyan, learned counsel for the Appellant submitted that the findings of the Courts below that Defendant No.4 is not the son of Gouranga and who is the son of Nityananda, is contrary to the evidence on record and as such perverse in as much as some irrelevant documents have been attached with undue importance although such evidence are of no value; learned counsel for the Plaintiff to call the pen to place the evidence is stating that those run in support of the finding rendered by the Courts below. 11. 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 the evidence both oral and documentary let in by the parties, as placed. 12. In order to address the rival submission and to find out the answer to the substantial question of law, the evidence on record first of all need be gone through. The record of right proved from the side of the Plaintiff (Ext.3) discloses the father’s name of Defendant No.4 as Nityananda. The voter list also reveals the same position. The Defendant No.4 has admitted that he was reading in the school and in the certificate, his father’s name finds mention as Nityananda. Those again receive full support from the sale deed RSA No.172 of 2020 Page 6 of 8 {{ 7 }} (Ext.7) by which the properties have been purchased in the name of Defendant No.4 way back in the year 1974. In addition to the above, Ext.8, the priority list of Asanpur Grama Panchayat provide support to that extent. All these documents appear to have never been questioned or opposed to by the Defendant No.4 before the First Appellate Court has drawn an inference that if at all the Defendant No.4 was the son of Gouranga instead of he coming to give the consent for sale of the land by the wife of Gouranga, the Defendant Nos.1 and 3 have given their consent and that being the position, the Defendant No.4 has not challenged the said sale of land by the wife of Gouranga, who according to him, is his mother. This circumstance clearly stands against the case of the Defendant No.4. There is absolutely no explanation on that score. The plaint filed in T.S. No.271 of 2000 has not been proved in accordance with law. That suit too had been dismissed for default and not on merit. At best, it can be taken to be a self-serving one and nothing more. Therefore, Ext.F- 1 and other documents are not sufficient enough to bulldoze the evidence as already discussed. With all such evidence on record, this Court answer to the substantial question of law, which runs in favour of Plaintiff, which in turn, leads to confirm the judgments and preliminary decrees passed by the Courts below. RSA No.172 of 2020 Page 7 of 8 {{ 8 }} 13. Resultantly, the Appeal stands dismissed. There shall be no order as to cost. (D. Dash), Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Feb-2024 16:20:44 RSA No.172 of 2020 Page 8 of 8