The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.266 of 2023 : (A) AND R.S.A. No.217 of 2023 : (B) In the matter of Appeals under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 31st March, 2023 & 13th April, 2023 respectively passed by the learned 3rd Additional District Judge, Berhampur in R.F.A. No.55 of 2014 confirming the judgment & decree dated 6th September, 2014 & 20th September, 2014 respectively passed by the learned Civil Judge (Senior Division) Berhampur in C.S. No.94 of 2002. ---- Smt. Rina Sahu @ Rinarani Sahu & Another (In RSA No.266/2023); and Smt. Geetanjali @ Gitanjali Padhi (In RSA No.217/2023) -versus- Smt. Gitanjali Padhi & Others (In RSA No.266/2023) Surjyanarayan Patra & Others (In RSA No.217/2023) …. Appellants …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.D.R. Mohapatra, S.N.Mohapatra & S. Pradhan (Advocates in RSA No.266/2023) M/s.B.P.B. Bahali, B.K.Panda & G.Samal Page 1 of 9 RSA Nos.266 & 217 of 2023 {{ 2 }} (Advocates in RSA No.217/2023) For Respondents - M/s.Ashok Das, M.R. Dash, A.K. Mohanty & M. Patra (Advocates for R.1 in RSA No.217/2023)
Legal Reasoning
Mr.M.Mohanty & G.Samal, (Advocates for R.2 in RSA No.217/2023) Mr.Girish Ch. Sahu (Advocate for R.3 & 4 in RSA No.217/2023) CORAM: MR. JUSTICE D. DASH Date of Hearing : 01.02.2024 : Date of Judgment : 08.02.2024 D.Dash,J. Since both these Appeals have been filed challenging the judgment & decree dated 31st March, 2023 & 13th April, 2023 respectively passed by the learned 3rd Additional District Judge, Berhampur in R.F.A. No.55 of 2014, those have been heard together for their disposal by this common judgment followed by the decree. The Respondent No.2, as the Plaintiff, had filed the suit for declaring his ownership over the suit properties and to declare the registered sale deed bearing No.748 of 1997 in respect of the suit property standing in favour of the Defendant No.1, purported to have been executed by the father of the Plaintiff as to have been created by impersonation and without consideration and as such invalid in the eye of law and so also the RSA Nos.266 & 217 of 2023 Page 2 of 9 {{ 3 }} consequential registered sale deeds executed by Defendant No.1 in favour of Defendant Nos.3 & 4 as invalid. The suit stood decreed by the following order: -
Decision
ORDER “The suit is partly decreed on contest against the defendants no.1 and 2 and ex parte against the defendants no.3, 4 and 6(a) to 6€. It is hereby declared that registered sale deed no.748/1997 executed by deceased Radha Mohan in favour of the defendant no.1 and registered sale deeds no.492, 493 of 2000 executed by defendant no.1 in favour of the defendants no.3 and 4 respectively are invalid documents. Plaintiff is one of the co-owners of the suit property. The defendants no.3 and 4 are directed to deliver possession of the suit property to the plaintiff for the benefit of the plaintiff and his co-owner within two months hence. In default plaintiff may get this decree executed by the process of law.” The Respondent No.1, being the aggrieved Defendant No.1, carried the Appeal under Section 96 of the Code, which has also been dismissed. Therefore, the present Appeal as at (A) is at the instance of the Appellants, who were the Defendant Nos.3 & 4 before the Trial Court and the Appeal as at (B) is at the instance of the Appellant therein, who was Defendant No.1 before the Trial Court. RSA Nos.266 & 217 of 2023 Page 3 of 9 {{ 4 }} 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. Plaintiff’s case is that his father Radha Mohan died leaving behind his widow Rahasa (Defendant No.5), the Plaintiff and a daughter, namely, Pramila (Defendant No.6) whereas the Defendant No.1 is the wife of Defendant No.2. Radha Mohan and the Plaintiff constituted a joint Hindu family of which Radha Mohan was the Karta. The joint family was having sufficient funds. With the aid of said joint family funds, the suit land had been purchased in the name of Radha Mohan by registered sale deed in the year 1970. It is stated that said property, being purchased in the name of Radha Mohan was blended with other joint family properties being thrown to the common stock. Radha Mohan and the Plaintiff had also exchanged a portion of their above purchased land with Defendant No.6. It was in the year 1973 through a registered deed of exchange. The rest portion of the purchased properties measuring Ac.0.663 pertaining to Plot No.282 & Khata No.196 as the subject matter of the suit. It is stated that Radha Mohan and Plaintiff had put up foundation over the suit property. Since they were residing at Manikothi, they had entrusted the Defendant No.2 to look after the suit property on their behalf. Subsequently, Radha Mohan died. After the death of Radha Mohan, the Plaintiff visited the RSA Nos.266 & 217 of 2023 Page 4 of 9 {{ 5 }} suit site on 02.08.2002 and found that on the suit land, further foundations have been laid. When he made enquiry, it was known that Defendant Nos.1 & 2 have obtained a registered sale deed in respect of the suit land in favour of Defendant No.1 in the year 1997 from Radha Mohan and subsequently, that Defendant No.1 has sold a portion of the suit property to Defendant Nos.3 & 4 by two registered sale deeds in the year 2000. It is stated that Radha Mohan had never executed such sale deed. The sale deed standing in favour of the Defendant No.1 is attacked saying that it had been obtained by impersonation and without payment of consideration. 4. The Defendant Nos.1 & 2, coming to contest the suit by filing the written statement, while traversing the plaint averments, submitted that the property in question was the self- acquired property of Radha Mohan, their joint family property was not enough and there was no sufficient family income so as to be surplus for being utilized for purchase of the lands. Radha Mohan is stated to have purchased the suit property from out of his own earning and then it is said that he had sold the suit property to Defendant No.1 by registered sale deed No.748 of 1997 and since then, the Defendant No.1 has been in possession of the suit property as its owner of which she has sold a portion to Defendant Nos.3 & 4 by registered sale deed Nos.492 & 493 in the RSA Nos.266 & 217 of 2023 Page 5 of 9 {{ 6 }} year 2000. It is stated that the Plaintiff has no right, title, interest and possession over the property. 5. The Defendant No.5, in the written statement, has admitted the case/claim of the Plaintiff. The Defendant Nos.3 & 4 have not participated in the hearing. The Defendant No.5 died during pendency of the suit whereas upon the death of Defendant No.6 during the suit, her legal representatives although have come on record, they did not contest the suit. 6. The Trial Court, on the above rival pleadings, having framed eight issues, upon examination of the evidence and their evaluation, has first of all answered Issue No.IV as to the nature of the suit property. The answer has been that he suit property is the self-acquired property of Radha Mohan. Then, coming to the core issue as to the validity of the sale deed said to have been executed by Radha Mohan in favour of Defendant No.1 in respect of the suit property in the year 1997, the finding has been in favour of the Plaintiff and against the Defendant No.1 as also Defendant Nos.3 & 4. The Trial Court, upon detail discussion of the evidence and their evaluation, has ultimately concluded that the registered sale deed No.748/1997 is not valid and genuine document. Having rendered such finding, the next conclusion of the Trial Court is that the registered sale deeds executed by RSA Nos.266 & 217 of 2023 Page 6 of 9 {{ 7 }} Defendant No.1 in favour of Defendant Nos.2, 3 & 4 are also invalid as to have the base upon an invalid sale deed. The final conclusion of the Trial Court is that the Plaintiff is one of the co- owners of the suit property. The Defendant No.1, being aggrieved by the said judgment and decree passed by the Trial Court, having carried the First Appeal, has failed in that move when the First Appellate Court, upon independent examination of the evidence and their evaluation and assessment at its level has affirmed the findings of the Trial Court and accordingly, has confirmed the judgment and decree passed by the Trial Court. 7. Hence the present second Appeal as at (A) is at the instance of Defendant Nos.3 & 4 and the Appeal as at (B) is at the instance of Defendant No.1. 8. The Appeals have been admitted to answer the following substantial question of law: - “Whether execution of sale deed under Ext.4 has been duly satisfied in respect of the suit property in favour of Defendant No.1?” 9. Heard Mr.B.P.B. Bahali, learned counsel for the Appellants, Mr.Ashok Das, learned counsel for the Respondent No.1, Mr.Mrutunjaya Mohanty, learned counsel for the Respondent RSA Nos.266 & 217 of 2023 Page 7 of 9 {{ 8 }} No.2 and Mr.Girish Ch. Sahu, learned counsel for the respondents 3 and 4 in the Appeal as at (B) at length. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 11. In the present suit, the Plaintiff’s challenge in essence is to the registered sale deed standing in favour of Defendant No.1 purported to have been executed by Radha Mohan, who happens to be the father of the Plaintiff and Defendant No.1. The Plaintiff asserts that his father had never executed the said sale deed in favour of Defendant No.1 in the year 1997 and the sale deed is a forged and created document through impersonation. When the attack to the sale deed is that it was taken by way of impersonation of Radha Mohan. The Plaintiff, having proved the certified copy of the said sale deed, which has been admitted in evidence and marked Ext.4, the Defendant No.1 curiously enough has not produced and proved the original registered sale deed when that original sale deed is supposed to be in her custody. It is stated by Defendant No.1 that she has parted away with the original document. But then, there is absolutely no attempt to procure the same and prove it. The Defendant Nos.3 & 4 have also not taken any step in that direction. So, the genuineness of the document, being under challenge on the ground that the person, who is shown to have executed the said RSA Nos.266 & 217 of 2023 Page 8 of 9 {{ 9 }} document, has actually not done so by taking any part or playing any role therein and it has been done by some others by way of impersonation at the instance of the vendee i.e. the Defendant No.1 who is the beneficiary; non-production of the original document and non-proving the same leads to inevitable conclusion that had the original document been produced the impersonation would have been crystal clear and that is the reason for which the Defendant Nos.1, 3 & 4 have avoided to do so. 12. For the reason, as above, the evidence of Defendant No.2, who is none other than the husband of Defendant No.1 who is interested on behalf of Defendant No.1 and thus against whom the allegation of impersonation also stands, would not be enough to answer the issue against the Plaintiff in favour of the validity of the said registered sale deed. Accordingly, the substantial question of law is answered in favour of the Plaintiff in holding the sale deeds Exts.4, 5 and 6 as invalid which in turn, leads to confirm the judgments and preliminary decrees passed by the Courts below. 13. Resultantly, both the Appeals stand dismissed. There shall be no order as to cost. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Basu Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Feb-2024 16:20:44 RSA Nos.266 & 217 of 2023 (D. Dash), Judge Page 9 of 9