Civil Suit No. 62 of 2008 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.151 OF 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 16.01.2017 and 24.01.2017 respectively passed by the learned District Judge, Bargarh in R.F.A. No.47 of 2015, dismissing the judgment and decree passed by the learned Senior Civil Judge, Bargarh in Civil Suit No.62 of 2008. ---- Suruani Barik @ Sahu …. Appellant -versus- Alekha Bhoi …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent - - Mr. A.K. Mishra-2, Advocate. ----------- CORAM: MR. JUSTICE D.DASH DATE OF HEARING :13.09.2023::DATE OF JUDGMENT:29 .09.2023 D.Dash,J. The Appellant, 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 16.01.2017 and 24.01.2017 respectively passed by the learned District Judge, Bargarh in R.F.A. No.47 of 2015. That Appeal under Section-96 of the Code had been filed by
Legal Reasoning
the Respondent being the aggrieved Defendant in Civil Suit No.62 of 2008 of the Court of the Senior Civil Judge, Bargarh. The Appeal has RSA No.151 of 2017 Page 1 of 10 {{ 2 }} been allowed and thereby, the suit filed by the present Appellant as the Plaintiff which had been decreed by the Trial Court has stood dismissed. 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. 3. Plaintiff’s Case:- The Plaintiff’s case is that the suit land was purchased by one Jalandar Barik in the name of his wife, Ukia Barik by a registered sale- deed and mutation was effected accordingly, in the name of Ukia Barik. It is stated that after purchase of the land by the Ukia Barik, her husband and Jalandar with one Murali Barik, the husband of the Plaintiff-Surumani Barik remained in possession of the same. It is further stated that Ukia and Jalandar were issueless and therefore, they
Legal Reasoning
on the Sri-Panchami day had adopted Jalandar’s sister’s son from village Urduma during his childhood days, when the boy was around 10 years old. The adoption took place after observance of all the formalities. It is further stated that Murali Barik from that time onwards was treated as the son of Jalandar and Ukia and they all were staying under one roof in the house at village Hatisar. Murali was RSA No.151 of 2017 Page 2 of 10 {{ 3 }} taking the care of Ukia and Jalandar as his parents and even after marriage, they remained there in the house at village Hatisar. It is next stated that towards the last part of the year, 2004, Ukia suffered from Paralysis and remained confined to bed. When such was the health condition of Ukia, sometime in February, 2005, the Defendant who is a neighbor took Ukia to Bhatli for medical treatment and during then, the husband of the Plaintiff remained busy in taking care of Jalandar at Hatisar. He had paid the cash to the Defendant for medical expenses. Ukia died on 09.12.2005. So Jalandar inherited the property of Ukia, which was fully to the knowledge of the Defendant. Jalandar while possessing the suit land bequeathed the same in favour of the Plaintiff by executing a Will on 20.11.2007, which was registered. The bequeath was made by Jalandar being pleased with the service rendered by the Plaintiff and therefore, to benefit him. The Plaintiff after the death of Jalandar thus got an exclusive right, title and interest over the property in question and possessed the same as such. 4. The Defendant having come to know of such Will, initiated falsely a proceeding under section 144 of the Cr.P.C., indicating therein that his possession over the suit land being on the strength of his purchase by registered sale-deed dated 18.02.2005 was being disturbed. The Plaintiff further stated that Ukia had absolutely no legal RSA No.151 of 2017 Page 3 of 10 {{ 4 }} necessity to sale the entire land, that too suppressing the same to all other. It is stated that Defendant taking advantage of the illiteracy and illness of Ukia had obtained those sale-deeds. However, when the Executive Magistrate disposed of the proceeding initiated at the behest of the Defendant in his favour, the Plaintiff filed the present suit seeking a declaration that the Registered sale-deed dated 18.02.2005 standing in favour of the Defendant be declared as inoperative, in further seeking the declaration of her right, title and interest over the property based upon the Will dated 20.11.2007 and confirmation of her possession, with the alternative prayer for recovery of possession, in case of dispossession and permanent injunction. 5. The Defendant while traversing plaint averments in his written statement has stated that the Plaintiff is the wife of Murali Barik but not Murali Sahoo. It is stated that Murali Barik was never adopted by Ukia and Jalandar and he was never recognized as their adopted son. He states that the suit property was the self-acquired property of Ukia, who had purchased the same in the year, 1967 to 1972 by registered sale-deeds. The consideration money was paid to Ukia from out of income which she was deriving from the land inherited from her father and thereafter, Ukia’s name was recorded in the record of right and she RSA No.151 of 2017 Page 4 of 10 {{ 5 }} being the absolute owner was in possession of the suit land and paying the land revenue. It is also stated that Ukia had executed the sale-deed in a fit state of health and mind out of her own volition and desire to meet the need at the moment which was duly registered as required under law. It is next stated that Jalandar in connivance with Murali had filed the Criminal Misc. Case and on that day, Murali obtained the deed in the name of his wife with a view to continue litigation without paying the Court fee. Since the registered sale-deed dated 18.02.2005 was duly executed by Ukia and with the knowledge of the Plaintiff and Jalandar, the Defendant submitted for dismissal of the suit. 6. The Trial Court on the above rival pleadings, having framed seven (7) issues has held that the Defendant has failed to prove the execution of the registered sale-deed by leading clear, cogent and acceptable evidence. According to it, the executor being an old pardanashin lady, the burden of proof of due execution by leading, clear, cogent and acceptable evidence was resting upon the Defendant and he having failed to prove the same by removing all such suspicious surrounding features, has no right, title, interest and possession over the suit land on the strength of those sale-deeds. Having said the above, the suit has however been decreed, firstly because Jalandar had RSA No.151 of 2017 Page 5 of 10 {{ 6 }} inherited the property on the death of Ukia and then accepting the Will to be valid and genuine and that the title in respect of the land covered thereunder has flown to the hands of the Plaintiff. 7. The First Appeal being filed by the Defendant feeling aggrieved and dissatisfied by the judgment and decree passed by the Trial Court in the suit in decreeing the same, holding the sale-deeds in favour of the Defendant as null and void, has been allowed. The Appellate Court has taken a view that the Plaintiff in order to have no locus standi to file the suit, since he has failed to prove the Will as required under law. So the suit at his instance seeking the reliefs as prayed for must fail. Accordingly, the result of the suit with the decree standing in favour of the Plaintiff has been turned upside down by the First Appellate Court. 8. Mr. A.K. Mishra(2), learned Counsel for the Appellant submitted that the First Appellate Court instead of dealing with the due proof of the Will ought to have taken up the question of validity of the registered sale-deeds standing in favour of the Defendant as done by the Trial Court which is the right approach. He submitted that the registered sale-deeds ought to have been held to have never been acted upon as there is no evidence as to the delivery of possession of the property involved in the said deed. He also submitted that despite overwhelming evidence, the First Appellate Court has completely gone RSA No.151 of 2017 Page 6 of 10 {{ 7 }} wrong in ruling against the registered Will standing to the benefit of the Plaintiff by culling out some remote inferential facts. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the averments taken in the plaint and written statement as well as the evidence, both oral and documentary, let in by them. 11. The Plaintiff being the suitor in the instant suit has attacked the registered sale-deeds in respect to the suit property standing in favour of the Defendant being executed by the recorded owner of the suit land i.e. Ukia Barik. The case of the Plaintiff is that after the death of Ukia, her husband Jalandar had adopted Murali during their lifetime. Having said so, it is however not pleaded as to what happened to that adopted son of Murali and how that he failed to inherit the property of Ukia. This Murali is none other than the husband of the Plaintiff. Thus, it reveals that there being failure in the first attempt of getting the property of Ukia through Murali as the adopted son being the successor of Ukia, the claim now falls back upon the Will. The Plaintiff then has projected the case that on the death of Ukia, her husband Jalandar inherited all her property including the suit land and RSA No.151 of 2017 Page 7 of 10 {{ 8 }} that Jalandar had executed a Will on 20.11.2007 in favour of the Plaintiff, the wife of Murali (asserted by the Plaintiff to the adopted son of Jalandar and Ukia). On the face of the registered sale-deeds, showing the sale of the suit land by its registered owner namely, Ukia to the Defendant stands since long, the Plaintiff claims to have got the property from the husband of the original owner who is stated to have bequeathed the same in her favour by registered Will dated 20.11.2007. In the facts and circumstances, the Plaintiff carries the legal obligation on her shoulder to prove her possession in respect of the immovable property of Jalandar as the beneficiary under that Will notwithstanding the fact that the suit land was then in the hands of Jalandar. The Plaintiff in order to stand on her own legs as the suitor is legally ordained to establish her locus standi to sustain the suit in seeking the relief of impeaching the registered sale-deeds standing in favour of the Defendant. Therefore, this Court finds that the First Appellate Court has made the right approach in proceeding to examine as to whether the Plaintiff has proved the execution of the Will in her favour as mandated under law. The gross erroneous approach to the matter as had been done by the Trial Court has been rightly rectified and the matter has been brought on right track for the RSA No.151 of 2017 Page 8 of 10 {{ 9 }} vehicle of adjudication of the dispute at hand to move in the right direction in reaching at right destination. The gross mistake committed by the Trial Court in putting cart before the horse has thus been corrected by the First Appellate Court by bringing the cart behind the horse. When the Trial Court has taken up the validity of the registered sale-deed standing in favour of the Defendant for consideration without ascertaining the locus standi of the Plaintiff to maintain the suit for reliefs claimed, the First Appellate Court appears to have made a very right approach. 12. The Will has been admitted in evidence and marked Ext.1. The evidence on record reveal that the husband of the Plaintiff had overwhelmingly participated in the process of bringing the Will into being and was inclined or eager to get the Will executed. The First Appellate Court has found from the evidence that it was actually the husband of Plaintiff (P.W.1) who was the beneficiary and under his constant supervision and vigilance; the Will has come into being. This was found to be a doubtful feature surrounding the Will with which one must concur. The First Appellate Court has discussed the evidence in great detail all such facts and circumstances surrounding the Will. Finding out very good reasons from the evidence, the First Appellate Court has held that the surrounding suspicious of RSA No.151 of 2017 Page 9 of 10 {{ 10 }} circumstance have not been satisfactorily removed by the Plaintiff by adducing cogent and credible evidence. It has thus been finally held that due execution of the Will has not been proved. This Court having bestowed due attention to the discussion made by the First Appellate Court and giving anxious consideration to all those as discussed, finds no such infirmity in the matter of appreciation of evidence by the First Appellate Court in rendering the decision on the invalidity of the Will. So, when that finding of the First Appellate Court in rejecting the Will projected by the Plaintiff in support of her locus standi to institute the suit seeking the relief on declaration of a sale-deed executed by the original owner firmly stands; the suit has been rightly dismissed. For all the aforesaid, the submission of the learned Counsel for the Appellant that the Appeal merits admission for answering the substantial question of law as pointed out by him cannot be countenanced with. 13.
Decision
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 Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 18-Oct-2023 11:02:57 RSA No.151 of 2017 Page 10 of 10