Civil Suit No. 101 of 2013 · The High Court · 2022
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.185 OF 2022 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 4th May 2022 and 13th May 2022 respectively passed by the learned Additional District Judge, Kamakshyanagar in R.F.A. No.30 of 2017 confirming the judgment and decree passed by the learned Senior Civil Judge, Kamakshyanagar in Civil Suit No.101 of 2013. ---- Aruna Kumar Sahoo …. Appellant -versus- Gadadhar Sahoo & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ============================================================================ For Appellant For Respondents
Legal Reasoning
CORAM: MR. JUSTICE D. DASH - - Mr. Abinash Routray, (Advocate). ---------------- Date of Hearing: 19.12.2023:: Date of Judgment: 22.12.2023 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 4th May 2022 and 13th May 2022 respectively passed by the learned Additional District Judge, Kamakshyanagar in R.F.A. No.30 of 2017. The Respondent No.1 as the Plaintiff had filed the Civil Suit No.101 of 2013 in the Court of Senior Civil Judge, Kamakshyanagar. RSA No. 185 of 2022 Page 1 of 7 {{ 2 }} The suit was for declaring the sale-deed Nos.2738 & 2879 dated 21.04.2010 executed by Respondent No.2 (Defendant No.2) in favour of Respondent No.1 (Defendant No.1) as void and also the consequential order of mutation of the said land with further prayer of permanent injunction. 2. The present Appellant being the aggrieved Defendant no.1 had carried the Appeal. The First Appeal under section-96 of the Code has however been dismissed. Hence, the present Second Appeal is at the instance of the Appellant being aggrieved by the judgment and decree passed by both the Courts below. 3. The suit stood decreed by the following order: - “16. The suit of the plaintiff be and same is decreed in part against def.no.1 on contest, being abetted against the def.no.2, still having equal force as per sub-rule 4 of Or.22 Rule-4 of CPC. As such, it is declared that the registered sale deed bearing no.2879 dated 21.04.2010 appertaining to Hal plot no.1613 under Hal khata no.84 of area Ac.0.14 decs. described under schedule ‘B’ of the plaint is null and void in excess of the half share of the def.no. 2 over that property and as such the consequential mutation will not be binding to the plaintiff in respect of that portion. However, the suit is dismissed as far as relief of same declaration in respect of registered sale deed no.2738 dated 21.04.2010 appertaining to plot no.710 of area Ac.0.11 decs. of mouza Rodanga described under schedule ‘A’ of the plaint. Furthermore, the suit of the plaintiff is also failed RSA No.185 of 2022 Page 2 of 7 {{ 3 }} as far as the relief of permanent injunction against the def.no.1 is concerned over such suit schedule properties. Cost of the suit is to be borne by the parties respectively.” 4. 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. 5. The Plaintiff’s case is that he and Defendant No.2 are two brothers being the sons of Gouranga Sahoo. The suit land is their ancestral joint family property which according to him had never been partitioned. On 15.06.2013, the Plaintiff came to learn that the Defendant No.1 had purchased some property from Defendant No.2 and obtained the record of right on the basis of an order passed in the mutation proceeding. He also reliably learnt that the Defendant No.1 was attempting to take possession of the land in question. An inquiry being made by the Plaintiff with the help of his son, it came to light that the Defendant No.2 has executed two registered sale-deeds on 21.04.2010 in respect of the land under Plot No.710 under Khata No.76 measuring an area Ac.0.110 decimals of mouza: Rodanga and Plot No.1613 under Khata No.84 measuring an area Ac.0.140 decimals for consideration of Rs.6,050/- and Rs.36,582/- respectively. It is his further case that the Defendant No.2 is an old man aged about 71 years RSA No.185 of 2022 Page 3 of 7 {{ 4 }} and then was not in fit state of mind and health; when he too was having no legal necessity to sale the suit land. The Defendant No.2 occasionally used to drink wine and it is said that taking advantage of the said bad habit of Defendant No.2, the Defendant No.1 has obtained these sale-dees from him which are null and void. 6. The Defendant No.1 coming to contest the suit took up all such defence to protect the sale-deeds standing his name to be legally valid. It is said that there was a partition of properties between two brothers i.e. Plaintiff and Defendant No.2 and the properties purchased by Defendant No.1 was in the share of the Defendant No.2 who in order to repay the loan had sold the same for valuable consideration. It is also stated that the Defendant No.1 having purchased the property is in possession of the same; being so delivered by the Defendant No.2. 7. The Trial Court with the above rival pleadings framed as many as seven (7) issues. Upon examination of evidence and their evaluation, the Trial Court has ruled on the crucial issues i.e. partition and validity of the sale-deeds in negating the claim of the Plaintiff that the sale-deeds are wholly null and void. It also held that there was no partition of the properties between two brothers. The conclusion of the Trial Court is that the registered sale-deeds are valid to the extent of the half share of the Defendant No.2 over that property. RSA No.185 of 2022 Page 4 of 7 {{ 5 }} 8. The Defendant No.1 then challenged the judgment and decree passed by the Trial Court in the First Appeal. The First Appellate Court is concurred with the findings of the Trial Court and accordingly has confirmed the judgment and decree impugned before it. 9. Mr. Abhinash Routray, learned Counsel for the Appellant submitted that the finding of the Courts below even though concurrent on the score that there was no partition of the ancestral joint family properties between Plaintiff and Defendant No.2, the same is the outcome of perverse appreciation of evidence. Therefore, the sale- deeds according to him, ought to have held to be valid in their entirety. He, therefore, urged for admission of this Appeal to answer the above as the substantial question 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. 11. The Plaintiff having failed to get the suit decreed in full in obtaining the decree that both the sale-deeds are null and void in their entirety, when has received the decree as to their validity to the extent to the extent of the share of the vendor (Defendant No.2) over the property; he has not carried any Appeal. This Defendant No.1 who is RSA No.185 of 2022 Page 5 of 7 {{ 6 }} the purchaser under those two sale-deeds from the Defendant No.2, now asserts that the sale-deeds be held valid in respect of the properties for which those have been executed. 12. The Courts below in order to find out the authority of the Defendant No.2 in selling the specific properties, being ordained under law to rule upon a finding as to partition or no partition between two brothers i.e. the Plaintiff and Defendant No.2, upon detail discussion of evidence and their appreciation have held that there was no partition of the ancestral joint family properties between the Plaintiff and Defendant No.2 in metes and bounds. 13. In course of hearing, learned Counsel for the Appellant has not been able to point out any such material on record that while arriving at such conclusion against the partition between Plaintiff and Defendant No.2 in respect of their ancestral joint family property which includes suit property covered under the two sale-dees has been ignored by the Courts below or that in arriving at such conclusion, the Courts below have read something which are wholly extraneous to the evidence on record. Therefore, this Court being in seisin of the Second Appeal is not permitted to take another view of its own by reappreciating evidence on record without concluding that the finding RSA No.185 of 2022 Page 6 of 7 {{ 7 }} of the Courts below is the outcome of perverse appreciation of evidence on record. Having said so, when the findings of the Courts below that there was no partition of the ancestral joint family properties between the Plaintiff and Defendant No.2 stands; no fault is found with the judgments and decrees passed by the Courts below holding those two sale-deeds to be valid to the extent of the share of Defendant No.2 which he has over the properties as it would be open for the Defendant No.1 to move for partition of the properties of the Plaintiff and Defendant No.2 and carve out his purchased land up to the extent of his vendor i.e. the Defendant No.2. For all the aforesaid, the submission of the learned Counsel for the Appellant (Defendant No.1) cannot be accepted to say that there arises any substantial question of law for being answered, meriting admission of this Appeal. 14.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Signature Not Verified Digitally Signed Narayan Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 27-Dec-2023 16:00:56 RSA No.185 of 2022 (D. Dash), Judge. Page 7 of 7