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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.87 of 2021 (From the judgment and decree dated 19.5.2021 passed by learned Addl. District Judge, Sundargarh in C.S. No.95 of 2010 confirming the judgment and decree 14.5.2015 passed by learned Civil Judge, Sundargarh in C.S. No.95/2010) A.F.R. Astami Sai and others … Appellants -versus- Jagyaseni Deo … Respondent Advocates appeared in the case through hybrid mode: For Appellants : Mr.Prasant Kumar Khuntia, Advocate -versus- For Respondent : Mr. Byomokesh Sahoo, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 09.10.2024. Sashikanta Mishra,J. This is an appeal by the Defendants against a confirming judgment. The judgment dated R.S.A. No.87 of 2021 Page 1 of 18 19.5.2021 followed by decree passed by learned Addl. District Judge, Sundargarh in R.F.A. No.29/70 of 2015 is impugned whereby the said appeal preferred by the Defendants against the judgment dtd.14.5.2015 followed by decree passed by learned Senior Civil Judge, Sundargarh in C.S. No.95/2010 was confirmed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The suit was filed by the Plaintiff for declaration and recovery of possession. Her case is that her mother was the legally married wife of Satyanarayan Sai, but as no male issue was born to her, her father kept
Legal Reasoning
defendant No.1 as his 2nd wife. Defendant Nos.2 to 5 are the children born out of the said union. The Plaintiff’s mother Satyabati had rayati lands measuring Ac.3.66 decs. described in Schedule-A. After death of Satyabati Sai on 12.1.2010, the Plaintiff succeeded to the property being her only legal heir. But the Defendants without having any right, title and interest over the suit land created disturbance in the peaceful R.S.A. No. 87 of 2021 Page 2 of 18 possession of the plaintiff. Since Defendant No.1, according to the Plaintiff, was not the legally married wife of her father Satyanarayan, Defendant Nos.2 to 5 cannot be treated as his legal heirs. Since the Defendants created serious dispute during harvest and also threatened the plaintiff to not come over the suit land and sow paddy, the Plaintiff was constrained to file the suit. 4. The defendants contested the suit and filed joint written statement refuting the plaint averments, inter alia, on the ground that the marriage of Defendant No.1 with Satyanarayan was solemnized with the consent of the plaintiff’s mother Satyabati. Further, the suit land was purchased in the name of Satyabati under benami transaction as the Satyanarayana being a Government servant could not obtain permission from the authority to buy the land, but had paid the consideration money to the vendor out of his own savings as Satyabati had no individual source of income. The defendants further claimed that on R.S.A. No. 87 of 2021 Page 3 of 18 28.7.2005, the plaintiff executed an unregistered relinquishment deed in favour of the Defendants in respect of the entire property of her father by accepting Rs.20,000/- from him and since then, the defendants are possessing the suit land exclusively and the plaintiff has no manner of right, title and interest over the suit land. They further claimed to have perfected title by way of adverse possession. 5. Be it noted that basing on the rival pleadings, issues were framed and the parties adduced evidence. After considering the evidence on record, the trial Court by judgment dtd.16.3.2013 decreed the suit by declaring the right, title and interest of the plaintiff and confirming her possession and by permanently restraining the defendants from interfering with her peaceful possession. 6. The defendants carried the matter in appeal to the District Court being registered as RFA No.22/2013. The First Appellate Court by judgment dtd.15.11.2014 held that the main disputes between the parties had R.S.A. No. 87 of 2021 Page 4 of 18 not been properly addressed by the Court below by framing appropriate issues. As such, the matter was remanded to the trial court for fresh adjudication specifically by framing an issue on benami transaction. On remand, the trial Court framed the issues earlier, which are as follows; (1) Whether maintainable? the suit is (2) Whether the plaintiff has got any cause of action for filing the suit? title and (3) Whether the plaintiff has got interest and right, possession over the suit land and thereon can be her possession in case of confirmed, so also dispossession, of possession can be given to her? recovery (4) Whether the defendants are to be permanently restrained from peaceful in interfering possession of the plaintiff over the suit land? the (5) To what other reliefs the plaintiff is entitled for? R.S.A. No. 87 of 2021 Page 5 of 18 7. Further, an additional issue was framed as directed by the First Appellate Court, which is as follows; (6) To what other reliefs the plaintiff is entitled for? 8. Taking up Issue No.6 at the outset, the trial Court held that the defendants failed to prove that the property was purchased by benami transaction. As regards the plea of relinquishment of the property by the plaintiff in favour of the defendants, the trial Court disbelieved the unregistered relinquishment deed to hold that the property held by Satyabati can be construed as Stridhan property which is her absolute property. Therefore, the plaintiff is entitled to succeed to the same after her death. On the other issues, the trial Court relying upon the provisions of Sections 15 and 16 held that the Plaintiff is the sole successor of the recorded owner Satyabati and hence, entitled to succeed to the suit property. It was also held that the defendants have no manner of right, title and interest R.S.A. No. 87 of 2021 Page 6 of 18 and therefore, their possession over the suit land is unlawful. On such findings, the suit was again decreed by granting the relief claimed by the plaintiff. 9. Being aggrieved, the defendants preferred appeal registered as RFA No.29/70 of 2015. After elaborately discussing the findings of the Trial Court as also the earlier judgment of the 1st Appellate Court, it was held that it was a case of open remand and additionally an issue was framed. Basing on the contentions raised, the 1st Appellate Court framed the following points for determination; (1) Whether the property purchased as per ‘A’ schedule land is a benami transaction? (2) Whether the plaintiff has got exclusive right, title and interest over the suit property? and further (3) Whether the possession of the plaintiff over the suit land is to be confirmed the defendants are to be restrained by way of permanent injunction from interfering peaceful possession of the plaintiff over the suit land? the in R.S.A. No. 87 of 2021 Page 7 of 18 10. Thereafter taking note of the admitted position relating to facts and the evidence on record, the 1st Appellate Court also took note of the necessary ingredients to prove benami transaction and held that the same were not satisfied and therefore, rejected the plea. On such findings, the appeal was dismissed by confirming the judgment and decree passed by the trial Court. 11. Being further aggrieved, the defendants have filed the present Second Appeal, which has been admitted on the following substantial questions of law; (1) Whether the learned trial Court has exceeded the direction of the learned 1st Appellate Court in earlier appeal, i.e. RFA No.22/2013 to reopen all the issues afresh? (2) Whether the finding on Stidhan properties of the Plaintiff by the learned trial court is alien to the pleading and issues between the parties? (3) Whether the claim of Benami Transaction advanced by the Defendant are satisfying all the prescribed ingredients thereof? R.S.A. No. 87 of 2021 Page 8 of 18
Legal Reasoning
12. Heard Shri P.K.Khuntia, learned counsel for the Defendants-Appellants and Mr. B. Sahoo, learned counsel appearing for the Plaintiff-Respondent. 13. Mr. Khuntia would argue that if the earlier judgment of the 1st Appellate Court is carefully read, it would be evident that the said Court had remanded the matter on a limited issue, that is, to examine the plea of benami transaction, but the Trial Court as well as the 1st Appellate Court hearing the subsequent appeal erred in law in treating it as a case of open remand. Mr. Khuntia further argues that both the Courts below have made out a third case beyond the pleadings and evidence of the parties to the effect that the property held by the mother of the Plaintiff is her Stridhan property. That apart, the 1st Appellate Court pronounced the judgment during the Summer holidays without notice to the parties which is contrary to the provisions of Rule 3 GRCO (Civil). Further, there was delay of 51 days in pronouncing the judgment. R.S.A. No. 87 of 2021 Page 9 of 18 14. Mr. Sahoo, on the other hand, would contend that the earlier judgment passed by the 1st Appellate Court, if read as a whole, would make it clear that the Court felt that all the issues had not been properly adjudicated and particularly held that an issue relating to benami transaction ought to have been framed. Therefore, it is a clear case of open remand with direction to frame an additional issue relating to benami transaction, which the trial Court followed. Mr. Sahoo further argues that the trial Court as well as the 1st Appellate Court held that the property being purchased in the name of the plaintiff’s mother, was her absolute property and the plaintiff being the only legal heir, succeeded to the same. As regards the arguments made with regard to the procedure followed by the 1st Appellate Court in pronouncing the judgment, even if accepted, would be a mere procedural irregularity, which cannot vitiate the judgment. R.S.A. No. 87 of 2021 Page 10 of 18 15. Before delving into the merits of the rival contentions advanced on behalf of the parties, this Court takes note of the fact at the outset that this is an appeal against a confirming judgment. It is well settled that concurrent findings of fact are ordinarily not to be disturbed in Second Appeal unless it is shown that the same are perverse or against the weight of evidence on record. Further, only because a different view could have been taken on the same facts can never be a ground for the Second Appellate Court to interfere with the concurrent findings of fact. Keeping the above principle in the perspective this Court would now consider the contentions put forth on merits. 16. On the question as to whether the remand by the 1st Appellate Court was limited or open remand, this Court after going through the judgment of the 1st Appellate Court delivered on 15.11.2014 finds that on scrutiny of the pleadings of the parties and the oral and documentary evidence, the 1st Appellate Court R.S.A. No. 87 of 2021 Page 11 of 18 summarized the main dispute between the parties as follows; (a) The status of the appellants- defendants as the legal heirs of Satyanarayan Sai, the father of the respondent-plaintiff. (b) The status of the suit schedule land, which is said to have been purchased benami in the name of the mother of the respondent-plaintiff by her father. 17. Thereafter, the 1st Appellate Court went on to observe that from the issues framed by the lower appellate court, it was found that on these two aspects, which are the basic foundation for the adjudication of the disputes of the parties, no issues have been framed and that Issue Nos.3 and 4 were taken as the pivotal issues negating the main disputes referred above. The 1st Appellate Court also held that no issue was framed with regard to the Benami Transaction as claimed for which no proper evidence was laid covering the aspects. On such findings, it was held that a specific issue on the alleged benami purchase ought to have R.S.A. No. 87 of 2021 Page 12 of 18 been framed so that the matter would have been properly adjudicated with the aid of other issues framed. Thus, the 1st Appellate Court though it to be a fit case to remand the matter to the court below for fresh adjudication by framing an issue on the benami transaction and giving opportunities to the parties to adduce evidence on that score and nothing more. 18. Plainly read, it would obviously imply that the 1st Appellate Court felt that in the absence of the issue relating to benami transaction, the suit was not properly adjudicated for which it felt persuaded to remand the matter for fresh adjudication of the issues by framing an additional issue relating to benami transaction. Under such circumstances, it cannot imply that the 1st Appellate Court wanted the trial to be only confined to the issue relating to benami transaction. This Court therefore, holds that it was a case of open remand whereby the Court below had liberty to give findings on all issues afresh including R.S.A. No. 87 of 2021 Page 13 of 18 the issue additionally framed. The contentions of Mr. Khuntia are therefore, not acceptable. 19. It has been argued by Mr. Khuntia that the courts below made out a third case by holding that the rayati lands of the plaintiff’s mother are her Stidhan property, which was neither pleaded nor proved. Per contra, Mr. Sahoo would argue that what the courts below intended was that the right of the Plaintiff’s mother over the property stood protected by virtue of the provisions under Sections 14 and 15 of the Hindu Succession Act. From the impugned judgment, this Court finds that the 1st Appellate Court held that ‘as the deed of relinquishment was hit under Section 17 of the Registration Act, as per Section 15 of the Hindu Succession Act, the land purchased in the name of a woman is treated as Stridhan. So, as per Section 16 of the Hindu Succession Act, the plaintiff is entitled to succeed the property having exclusive right, title and interest over it’. R.S.A. No. 87 of 2021 Page 14 of 18 From a bare reading of the above observation of the 1st Appellate Court, it become abundantly clear that the Court was referring to the absolute ownership of a woman as per Section 14 of the Act and the general rules of succession as per Section 15. Only because the word ‘Srtidhan’ was used does not, ipso facto, imply that a third case was made out. To reiterate, the intention of the 1st Appellate Court obviously was to recognize the absolute ownership of the plaintiff’s mother over the property and the right of the plaintiff to succeed thereto in the absence of evidence relating to the so-called relinquishment made by the Plaintiff. 20. Mr. Khuntia has further argued that all necessary ingredients of benami transaction were proved by the defendants and moreover, it is borne out from the evidence that they are in possession. Since there is clear evidence that the plaintiff’s mother did not have any source of income to purchase the property, her husband purchased the same in her R.S.A. No. 87 of 2021 Page 15 of 18 name. Per contra, Mr. Sahoo would argue that both the Courts below factually found from the evidence on record that the ingredients of benami transaction are missing. 21. Perusal of the impugned judgment reveals that in Paragraph-16 of the judgment the 1st Appellate Court has listed the 6 ingredients of benami transaction and in addition has referred to the proviso to Sub-section (1) of Section 3 of the Benami Transaction (Prohibition) Act, 1988 to hold that any property purchased by a person in the name of his wife shall be presumed to have been so purchased for her benefit, unless the contrary is proved. There is no evidence to show that the purchase in question, though made in the name of the plaintiff’s mother, was actually intended for the benefit of the entire family. In absence of such evidence, this Court finds nothing wrong with the finding of the 1st Appellate Court that the property in question cannot be treated as benami property. Further, the 1st Appellate Court has also R.S.A. No. 87 of 2021 Page 16 of 18 taken note of the fact that the property was purchased in the year 1958-59 when neither Defendant No.1 nor Defendant Nos.2 to 5 were born. Defendant No.1 married two years after purchase. As such, they cannot be treated as competent to prove the motive of the Plaintiff’s father in purchasing the property in the name of her mother. 22. Mr. Khuntia has also tried to make much out of the fact that the judgment was delivered by the 1st Appellate Court on 19.5.2021, which was a holiday. Mr. Sahoo disputes such assertion by contending that 19.5.2021 was not a holiday in the Judgeship of Sundargarh. Be that as it may, except for contending that the judgment was pronounced during summer vacation and without notice to the parties, it has not been demonstrated as to how the same has cause prejudice to any of the parties much less the defendants. In any event, the same can only be treated as a procedural irregularity without touching the R.S.A. No. 87 of 2021 Page 17 of 18 merits of the case in any manner. As such, it cannot be a ground to hold the judgment vitiated. 23. Thus, from a conspectus of the analysis of the facts, evidence and law involved and the discussion made thereon, this Court finds that none of the grounds urged by the defendants-appellants to assail the impugned judgments are valid so as to persuade this Court to interfere, more so the challenge being to concurrent findings of fact. 24. In the result, the appeal fails and is therefore, dismissed. There shall be no order as to cost. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 11:11:33 R.S.A. No. 87 of 2021 Page 18 of 18