The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.214 OF 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 07.04.2017 and 20.04.2017 respectively passed by the learned District Judge, Baleswar in R.F.A. No.163 of 2013 setting aside the judgment and decree dated 26.09.2013 and 08.10.2013 respectively passed by the learned Civil Judge, Baleswar in Title Suit No.199 of1993-I. ---- Kartik Rout & Another .... Appellants -versus- Mamata Rani Sahu & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants For Respondents -
Legal Reasoning
Mr. D.P. Mohanty, Advocate - Mr. P.K. Rath, Sr. Advocate, CORAM: MR. JUSTICE D.DASH Date of Hearing : 15.11.2023 :: Date of Judgment:04.12.2023 D.Dash,J. The Appellants, 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 07.04.2017 and 20.07.2017 respectively passed by the learned District Judge, Balasore in R.F.A. No.163 of 2013 setting aside the judgment and decree dated 26.09.2013 and RSA No.214 of 2017 Page 1 of 8 {{ 2 }} 08.10.2013 respectively passed by the learned Civil Judge, Baleswar in Title Suit No.199 of1993-I. One Paluni Dei as the Plaintiff in Title Suit No.199 of 1993 in the Court of Civil Judge, Baleswar arraigning Kanduru Mohan Sahu and Ram Chandra Sahu as Defendant Nos. 1 and 2 respectively besides one Puntimani Dei and the present Appellants as well as Respondent Nos. 3 to 5 as the Defendants. Paluni, the sole Plaintiff having died during pendency of the suit as also when Kanduru Mohan Sahu and Rama Chandra Sahu, Defendant No.1 and 2 died during the suit, the legal representatives of Kanduru Mohan and Rama Chandra came to be impleaded as the Plaintiffs and they prosecuted the suit which stood dismissed. They being non-suited and deprived of being getting the reliefs had carried Appeal under section-96 of the Code, which has been allowed. Therefore, the present Appellants who were the Defendant Nos.4 and 5 before the Trial Court and Respondent Nos.1 and 2 before the First Appellate Court have filed this 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. 3. Plaintiff’s case is that the suit land originally stood recorded in the name of one Hadi Das. Said Hadi Das in order to meet his legal RSA No.214 of 2017 Page 2 of 8 {{ 3 }} necessity sold the suit land to Paluni by registered sale-deed dated 17.02.1937. After purchase, Paluni possessed the said purchased land keeping it under the enclosure. The original sale-deed was with her husband, Rama Chandra Sahu, the Defendant No.2 (since dead). When said Paluni was in possession, settlement operation commenced in the village and that was being looked after by her husband-Rama Chandra and her elder brother-in-law. It is stated that taking advantage of simplicity of Paluni, they managed to get the purchased land recorded in their name with a note of possession in favour of one Gobinda Rout against one plot of land i.e. Hal Plot No.278. That Gobinda was the husband of the foster daughter of Rama Chandra; taking advantage of the situation, when Gobinda and his family members tried to create disturbance in the peaceful possession of the Plaintiff over the suit land by removing bamboo trees and other tress therefrom, Paluni, the original Plaintiff was compelled to file the suit. 4. The Defendant Nos.3, 4 and 5 in their written statement stated that the land in suit was recorded in the name of Hadi Das, son of Saraju Das as per sabik record of right. It is also stated that in order to meet the legal necessity, he sold the suit land to Defendant Nos. 1 and 2, i.e. husband and elder brother-in-law of the original Plaintiff-Paluni on 30.06.1945, by executing registered sale-deed and delivering RSA No.214 of 2017 Page 3 of 8 {{ 4 }} possession of the same to them. It is stated that from that date of purchase, the Defendant Nos.1 and 2 have been in possession of the suit land as its owners. During the Major Settlement, the sale-deed was produced before the Authority and accordingly, the M.S. Record of right has been prepared and the recorded owners have been paying the revenue to the State by obtaining receipts to that effect. It is further stated that Kanduru Mohan, the Defendant No.1 (dead) had a foster daughter named Punti Mani who got married to one Gobinda Rout. After death of Defendant Nos.1 and 2 they succeeded to the property and remained in possession. The status of the substituted Plaintiff i.e. Basantilata as the wife of Rama Chandra has been denied, so also the status of Mamata Rani, the substituted Plaintiff 1(Ka). They state that Hadi Das had never executed sale-deed in favour of Paluni. The Defendant No.7 supported the case of the Defendant Nos.3, 4 and 5. 5. With the above rival pleadings, the Trial Court framed as many as four (4) issues are as follows:- (i) Whether the suit is maintainable? (ii) Whether the M.S.R.O.R. was wrongly and erroneously prepared and required to be corrected? (iii) Whether the plaintiffs are entitled for permanent injunction against the defendants? (iv) Whether the plaintiffs are entitled for any other relief? Page 4 of 8 RSA No.214 of 2017 {{ 5 }} Upon examination of the evidence and their evaluation in the backdrop of the pleadings, it gave a finding that the suit is barred by limitation in view of the section-42 of the Orissa Survey and Settlement Act; the suit being filed in the year 1993 as against the publication of M.S. Record of Right in the year 1983. 6. The First Appellate Court being moved by the unsuccessful substituted Plaintiffs has allowed the First Appeal and thereby decreed the suit in so far as the claim of Mamata Rani (Plaintiff No.1(Ka) is concerned; whereas the suit stood dismissed in respect of Basantilata, the substituted Plaintiff No.1(Kha). 7. The Appeal has been admitted to answer the following substantial questions of law:- “Whether the First Appellate Court is right in holding the sale-deed, Ext.1 to be valid and thereby the title in respect of the suit land to have passed to the hands of original Plaintiff in consequentially holding that there was no subsisting title with Hadi Das, the vendor of Ext.3 to execute the other sale-deed, Ext.C?” 8. Mr. D.P. Mohanty, learned Counsel for the Appellants submitted that so called transaction under the sale-deed, Ext.1 was a sham transaction and it being executed through maternal uncle is void which need not be challenged. Therefore, according to him, the title in respect of the land covered under Ext.1 has not passed to the hands of RSA No.214 of 2017 Page 5 of 8 {{ 6 }} Paluni-vendee, the same does not receive the recognition in the eye of law. He, therefore, urged that the First Appellate Court is not right in holding that at the time of execution of sale-deed under Ext.C, Hadi Das had no further subsisting title to pass on to the said vendees under Ext.C. 10. Mr. P.K. Rath, learned Senior Counsel for the Respondents while supporting the conclusion arrived at by the First Appellate Court inviting the attention of this Court to paragraph-14 of the judgment in the First Appeal contended that the First Appellate Court has taken up that matter into consideration in its right perspective and having found no reason to hold the sale-deed, Ext.1 to be void ab initio, according to him, the conclusion has been right that when that has not been set aside by the competent Court in a duly constituted proceeding has to hold the field in having on its force as per law and therefore, the document projected by the Defendants i.e., Ext.C which is sale-deed has been rightly held to be of no value in the eye 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 plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. RSA No.214 of 2017 Page 6 of 8 {{ 7 }} 11. When the plea has been taken by the Defendants that Ext.1 was a sham transaction, the burden of proof lies on them to establish that fact, so that the subsequent sale-deed standing in support of their case i.e. Ext.C would come to stand hold the field. The question here is as to whether the prior sale deed Ext.1 would prevail over the subsequent sale deed, Ext.C. The executant’s age in Ext.C i.e. the age of Hadi Das is indicated as 37. So, from that, year of birth of Hadi Das is found to be around the year 1908. By the year 1937, when Ext.1 came into being, his age was 29. Therefore, it is said that execution of the sale-deed, Ext.1 through his maternal uncle showing him to a minor is void and sham transaction and needs no challenge. Except this, no other document or evidence has been let in to show the age of Hadi Das as mentioned in Ext.C to be correct. Ext.C had come into being in the year 1945. That indication in Ext.C cannot be the basis to hold the case of the Defendants that Hadi being a major was shown for that transaction to be a minor and accordingly, the transaction had been entered into. It was incumbent upon the Defendants to establish through clear, cogent and acceptable evidence that as on the date of execution of sale-deed in the year 1937, Ext.1. Hadi Das was a major and thus he having been the shown as minor, RSA No.214 of 2017 Page 7 of 8 {{ 8 }} the sale-deed was executed on his behalf being represented by his maternal uncle. When the above crucial fact has not been established, on the face of the sale-deed, Ext.1 which had come into being in the year 1937 and has not been challenged for all these years as in view of the contents in the said documents, that is not void but voidable; the First Appellate Court is right in holding that Hadi Das had no further subsisting right, title and interest to transfer this self-same land in the year 1945 which had also not seen the light of the day for quite a long period. The substantial question is accordingly answered in favour of affirming the view taken by the First Appellate Court. 12. Resultantly, the Appeal stands dismissed. No order as to cost. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: PERSONAL ASSISTANT Reason: Authentication Location: OHC Date: 12-Dec-2023 15:08:34 RSA No.214 of 2017 Page 8 of 8