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IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A Nos.212 and 213 of 2015 (From the judgment and decree dated 17.3.2015 passed by learned 3rd Addl. District Judge, Puri in R.F.A. Nos.14 & 15/2010. In R.S.A. No.212 of 2015 Ratnakar Pradhan and others … Appellants -versus- Manjulata Pradhan and another … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr. A.K.Mohanty, Advocate -versus- For Respondents: Mr.D.P.Mohanty, Advocate In R.S.A. No.213 of 2015 Ratnakar Pradhan and others … Appellants RSA No.264 of 2014 Page 1 of 17 -versus- Manjulata Pradhan and another … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr. A.K.Mohanty, Advocate -versus- For Respondents: Mr.D.P.Mohanty, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11.9.2023. Sashikanta Mishra,J. Both these appeals are directed against the common judgment passed by learned 3rd Addl. District Judge, Puri in R.F.A. Nos.14 and 15/2010 on 17th March, 2015 followed by decree. As per the said common judgment, the judgment and decree passed by learned Addl. Civil Judge (Sr. Division) Puri on 11th January, 2010 followed by decree in C.S. No.90/91 of
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2008/2007 was confirmed. The Plaintiffs are the Appellants against the confirming judgment. RSA Nos.212 & 213 of 2015 Page 2 of 17 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The Plaintiffs’ case is that they are the sons of late Jugal Pradhan and the original Plaintiff No.5 (since deceased) is their mother. Defendant No.1 is a stranger to the family. Defendant No.2 is the wife of Benudhar Pradhan, the deceased brother of the Plaintiffs. The suit property originally belonged to the family of the Plaintiffs and was used as residential house. The grandfather of the Plaintiffs and his niece, Uttei (daughter of his deceased elder brother) executed a sale deed in the year 1958 in favour of Bansidhar Pradhan, the minor son of Uttei. According to the Plaintiffs, it was a nominal sale deed and executed without any necessity. Bansidhar Pradhan executed a deed of reconveyance in 1964 in favour of the sons of Nada Pradhan namely, Jugal (father of the Plaintiffs), Kelu and Kunja. The suit property is part of the purchased property of Jugal Pradhan, who purchased RSA Nos.212 & 213 of 2015 Page 3 of 17 it in the name of his minor son Benudhar vide R.S.D. dated 16th March, 1964, but such purchase was for the benefit of his entire family, who possessed the same jointly. In 1966, the settlement R.O.R. was published wherein Plot No.662 measuring an area of Ac.0.25 decs. and Plot No.664 measuring an area of Ac.0.46 decs. were recorded under Khata No.257. On the other hand, Kelu Pradhan and Kunja Pradhan illegally mutated half of the said property in their name. The R.O.R. was corrected and the balance area was recorded as Plot No.315 under Khata No.321 in the consolidation R.O.R. When the Plaintiffs claimed the suit property after death of their father, Kelu and Kunja threatened to dispossess them and set up defendant No.2 to make a false claim. Though Defendant No.2 is the married wife of Benudhar(elder brother of the Plaintiffs) but such marriage was never consummated as she had left her matrimonial home on the next day of the marriage itself. Plaintiff No.1 is staying in the suit house along with his family. Defendant No.2 executed a nominal sale deed in favour RSA Nos.212 & 213 of 2015 Page 4 of 17 of Defendant No.1 namely, Manjulata Pradhan without having any right of sale as it is a joint family property. Nevertheless, possession was never delivered. After obtaining the property thus, Defendant No.1 initiated a proceeding under Section 144 of Cr.P.C. against the Plaintiff No.1 before the Executive Magistrate, Pipili. Hence, the Plaintiffs filed the suit with prayer for setting aside the sale deed and for permanent injunction against Defendant No.1. 4. The case of the Defendants is that the suit is hit by Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (“Consolidation Act”). Since the Consolidation authorities have already decided the title of Benudhar, husband of Defendant No.1, over the suit property, the Plaintiffs have no right to challenge the same. Moreover, they were never in possession of the same at any point of time. The suit land is consolidable land recorded as Chaka No.58, Plot No.315 measuring an area of Ac.0.39 decs. over which the husband of RSA Nos.212 & 213 of 2015 Page 5 of 17 Defendant No.2 constructed 2 rooms to store paddy. Naga Pradhan and Uttei Pradhan had never executed a sale deed in favour of Bansidhar and no deed of re- conveyance was executed by Bansidhar in favour of the sons of Naga Pradhan. The suit property is also not the purchased property of Jugal Pradhan nor the joint family property of the Plaintiffs. On the contrary, the suit property was purchased by Benudhar from Bansidhar through his father guardian Balunkeswar on 16th March, 1964 and the sale deed was also acted upon. The suit property was sold to Defendant No.1 on 5th February, 2007 for consideration of Rs.68,980/- and possession was also delivered. Plaintiff No.1 threatened to dispossess Defendant No.1 from the land for which she approached the local Police and basing on the report of the Police, learned Executive Magistrate initiated the proceeding under Section 144 of Cr.P.C. Thereafter, Plaintiff No.1 forcibly dispossessed Defendant No.1 with the help of hired goondas on 11th April, 2007 and is illegally possessing the suit property. The defendants therefore, set up a RSA Nos.212 & 213 of 2015 Page 6 of 17 counter-claim for eviction of Plaintiff No.1 and for payment of mesne profit @ Rs.30 per day to Defendant No.1 since 11th April, 2007. In the written statement filed by the plaintiff to the counter claim, they disputed the claim that the possession of the suit property was ever delivered to Defendant No.1 and that the Plaintiffs are in possession all along. They also denied the allegation of threatening to dispossess the plaintiff or of actually dispossessing her. 5. Basing on the rival pleadings, the trial court framed the following issues for determination; (1) Whether the suit is maintainable? (2) Whether the plaintiffs have any cause of the the suit against filing for action defendants? (3) Whether the suit property is the joint family the plaintiffs or exclusive the property of property of Benudhar Pradhan, husband of the defendant No.2? (4) Whether the defendant No.2 had inherited from her husband the suit property Benudhar Pradhan and as such she had right, title, interest over the said property? RSA Nos.212 & 213 of 2015 Page 7 of 17 (5) Whether the sale deed No.180 dated 5.2.2007 executed by Defendant No.2 did not confer any right, title, interest on defendant No.1 and whether the same is liable to be set aside in the present suit? (6) Whether the Defendant No.1 is to be permanently restrained from entering into the suit land and from interfering in their possession over the same? (7) Whether the defendant No.1 is entitled to a relief for recovery of possession of the suit land from the plaintiffs? (8) Whether he is entitled to for any mesne profit at the rate of Rs.30/- (Rupees thirty) per day from the plaintiff no.1 till his eviction from the suit property? 6. To prove their respective cases, the parties adduced oral and documentary evidence. The trial Court took up Issue Nos.3 and 4 being the pivotal issues at the outset. Considering the claim of the plaintiffs that the suit property is joint family property, the trial Court placed the burden on them to prove that it was purchased in the name of Benudhar out of the joint family nucleus. After going through the oral and documentary evidence on record, the trial Court found that the suit property had been recorded exclusively in RSA Nos.212 & 213 of 2015 Page 8 of 17 the name of Benudhar Pradhan in the consolidation R.O.R. since the year 1983, but the same was never challenged by the Plaintiffs before the higher forum nor objected to before the Consolidation authority. The claim over the property was raised after 24 years by filing the suit. Basing on the entry in the consolidation R.O.R., the trial Court therefore, held that Late Benudhar Pradhan had exclusive right, title and interest over the same. The Trial Court also took note of the voter list of the year 2009 of Mouza-Govindpur which reveals the name of the husband of Defendant No.2 as Benudhar Pradhan and held that even assuming that the marriage had not been consummated as claimed, the same would not take away the status of Defendant No.2 as the wife of Benudhar. It was thus held that being the wife of Benudhar, Defendant No.2 had inherited the right over the property. In view of such finding, the other issues were decided against the Plaintiffs. Under Issue Nos.7 and 8 the trial Court found from the evidence that though Defendant No.1 had purchased the suit RSA Nos.212 & 213 of 2015 Page 9 of 17 property from Defendant No.2, the Plaintiff No.1 had forcefully dispossessed her from the same and is therefore, liable to be evicted there from and Defendant No.1 is entitled to recovery of possession. The prayer for grant of mesne profits was however, disallowed for want of evidence. The suit was thus dismissed and the counter claim was decreed by directing Plaintiff No.1 to deliver possession of the suit property to Defendant No.1. 7. Being aggrieved, the plaintiffs carried the matter to the higher forum by filing two appeals, one against dismissal of the suit and the other against the decree
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of the counter claim. Basing on the contentions raised, the First Appellate Court framed the following points for determination; (i) Whether a decree of setting aside the sale deed dated 5.2.2007 executed by Defendant No.2 in favour of Defendant No.1 can be passed by a Civil Court ignoring the record of right published by the Consolidation Authorities in the name of Benudhar Pradhan in respect of the suit property? RSA Nos.212 & 213 of 2015 Page 10 of 17 (ii) Whether the plaintiffs-appellant are entitled permanently restraining Defendant No.1 in respect of the suit property? for a decree (iii) Whether the appellants are entitled for a preferential right to repurchase the suit properties? 8. In determining the points so framed, the First Appellate Court independently scanned the evidence on record and found that the right, title and interest of the suit properties was declared in the name of Benudhar Pradhan. Such finding was never challenged and therefore, the property must be treated as the exclusive property of Benudhar. Defendant No.2 being the widow is a Class-1 heir along with Plaintiff No.5 (deceased mother of Benudhar). So after death of Benudhar, Defendant No.2 and Plaintiff No.5 became the successors in interest of the property of Benudhar having legal authority to transfer the property. Under such situation, the transfer made by Defendant No.2 in favour of Defendant No.1 vide sale deed dated 5th February, 2007 is valid to the extent of her share. The Plaintiffs having invaded upon the suit area, their RSA Nos.212 & 213 of 2015 Page 11 of 17 possession cannot be treated as lawful. On such findings, it was held that the plaintiffs are not entitled to decree of permanent injunction against the Defendants. As regards the preferential right to repurchase the suit properties, the First Appellate Court noted that the Plaintiffs had failed to establish joint ownership of the whole family over the suit property and further that they had jointly sold Ac.0.60 decs. of land in the year 1997 for marriage of their sister. Therefore, their claim for right of repurchase is weakened. Thus, no preferential right of re-purchase accrued in their favour. On such findings, both the appeals were dismissed vide the impugned common judgment. Feeling further dissatisfied, the plaintiffs- appellants have preferred these appeals which have been admitted on the following substantial questions of law. (1) Whether the Courts below are correct in their approach to conclude that the suit property is the exclusive property of the husband of Benudhar Pradhan, Defendant No.2 when it is admitted by property was the plaintiffs that RSA Nos.212 & 213 of 2015 Page 12 of 17 purchased in the name of Benudhar Pradhan during his minority. (2) Whether both the Courts below have held correctly that Defendant No.2 has the suit property of only Benudhar Pradhan when his mother is alive. inherited 9. Head Mr. A.K.Mohanty, learned counsel for the Appellant-Plaintiffs and Mr. D.P.Mohanty, learned counsel appearing for the Respondent-Defendants. 10. Assailing the findings of both the Courts below, Mr. Mohanty would argue that that as the First Appellate Court has recognized the right of original Plaintiff No.5, mother of Benudhar over the suit property after death of Benudhar, the decree automatically stands modified. Despite holding so the First Appellate Court dismissed the appeal and therefore, the decree cannot be enforced. On merits, it is argued that since the property in question was purchased by Jugal in the name of his minor son Benudhar, it must be treated as a purchase on behalf of all co-sharers and hence, the sale of property by the RSA Nos.212 & 213 of 2015 Page 13 of 17 widow of Benudhar can only be valid to the extent of her share. 11. Per contra, Mr. D.P.Mohanty would argue that even if the finding of the First Appellate Court that the original Plaintiff No.5 also had half share over the suit property is held to be correct it is open to the Plaintiffs to file a suit for partition, but same cannot be gone into in the suit filed by them seeking a specific relief. 12. As already narrated, both the Courts below have held that Late Benudhar Pradhan had exclusive right, title and interest over the suit property, which was purchased in his name by his father Jugal when he was a minor. Though it has been argued that such purchase of land must be held to be on behalf of all co- sharers, the same cannot be accepted because firstly, had it been so, there would have been appropriate recitals in the sale deed and secondly, the plaintiffs, who are the other co-sharers would have objected to the publication of the R.O.R. exclusively in the name of Benudhar either at the time of consolidation RSA Nos.212 & 213 of 2015 Page 14 of 17 operations or by challenging the same in the higher forum. The claim of title was significantly raised 24 years after publication of the consolidation R.O.R. It has not been shown as to how the finding of the Trial Court or the First Appellate Court in such respect is wrong. On the contrary, this Court also finds from the evidence on record that the Defendant No.2, being the widow of Benudhar, had inherited the property after death of her husband, but since at the relevant time, the mother of Benudhar (Plaintiff No.5) was alive, both being Class-1 heirs must be deemed to have inherited 50% share each of the property. The First Appellate Court has recognized the right of Plaintiff No.5 as above. As regards the claim of having a preferential right to repurchase the suit properties, the First Appellate Court held and according to this Court rightly so, that the plaintiffs had sold some of the lands in the year 1997 for marriage of their sister. Obviously, such sale was effected excluding the share of Defendant No.2. Nevertheless, it cannot be denied that the suit property being the exclusive property of RSA Nos.212 & 213 of 2015 Page 15 of 17 Benudhar his widow and mother succeeded to the same upon his death in equal measure. To such extent therefore, the Plaintiffs can only lay their claim, if at all through their mother P.W.5, who is no more. As rightly contended by Mr. D.P. Mohanty, learned counsel appearing for the Defendants, such claim of the Plaintiffs can only be considered in a suit for partition, but not otherwise. The suit having been filed seeking the specific relief of setting aside the sale deed dated 5th February, 2007, executed by Defendant No.2 in favour of Defendant No.1 and for permanent injunction, the claim raised over the suit property can only be considered by way of partition, but not otherwise. Both the Courts below have not been able to persuade themselves to grant the main relief claimed. After going through the evidence on record, this Court fully concurs with such view. 13. Thus, from a conspectus of the analysis of evidence and the discussion made herein before, this Court is of the considered view that the impugned RSA Nos.212 & 213 of 2015 Page 16 of 17 judgment does not warrant any interference whatsoever as the issues involved are found to have been decided correctly. 14. In the result, both the appeals are found to be devoid of merit and are thus, dismissed. Parties to bear their own costs. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 11:11:29 RSA Nos.212 & 213 of 2015 Page 17 of 17