Civil Suit No. 265 of 2011 · The High Court · 2018
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.462 OF 2018 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 12th October 2018 and 29th October 2018 respectively passed by the learned Additional District Judge, Jajpur in R.F.A. No.30 of 2017 confirming the judgment and decree dated 9th May 2017 and 18th May 2017 respectively passed by the learned Civil Judge (Senior Division), Jajpur in Civil Suit No.265 of 2011. Sk. Mustaquim ---- -versus- …. Appellant Maksud Alli Khan & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ======================================================= For Appellants - Ms. Mamata Misra, (Advocate). For Respondents - Mr. Soumya Mishra, A. Mohanta, L.K. Moharana, N. Sharma (Advocates). CORAM: MR. JUSTICE D. DASH Date of Hearing : 02.04.2024 :: Date of Judgment: 15.04.2024 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 12th October 2018 and 29th October 2018 respectively passed by the learned Additional District Judge, Jajpur in R.F.A. No.30 of 2017. RSA No.462 of 2018 Page 1 of 13
Facts
The Respondent Nos. 1 and 2 as the Plaintiffs had filed Civil Suit No.265 of 2011 for declaration that the Appellant (Defendant No.3) is the son of the Respondent No.5 (Defendant No.4) with further prayer to declare the registered sale-deed dated 26.10.2009 as illegal and void and for permanently restraining the Defendant Nos.1 to 5 in creating any disturbance over the suit land. The suit being decreed by the learned Civil Judge (Senior Division), Jajpur, the present Appellant (Defendant No.3) having suffered from the same had carried the Appeal under section-96 of the Code which too has been dismissed. Hence, the present Second Appeal is at the instance of the Appellant, who has remained as unsuccessful Defendant No.3 before the Trial Court as well as the First Appellate Court. 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. Plaintiffs case is that the property described in the schedule of the plaint originally belonging to Adhikari Narayan Das. Said Adhikari Narayan Das sold the said land to one Banamali Pati vide registered sale deed dated 18.07.1958. Banamali Pati died leaving behind his only son Damodar Pati When Damodar was possessing the suit land, he alienated Ac.0.25 decimals of land out of said plot No.1018 to Anisha Khatun, the mother of Plaintiff RSA No.462 of 2018 Page 2 of 13 No.2 by registered sale deed dated 16.08.1996. Similarly, the property under Plot No.1008 measuring Ac.0.57 decimals of mouza Alakunda, originally belonged to Birabhadra Panda who sold the same to Mir Nizam Alli, who sold Ac.28.5 kadi of land in favour of Anisa Khatun, the mother of Plaintiff No.2 by executing a registered sale deed dated 16.02.1998 and gave delivery of possession of the same. Anisa accordingly remained in possession of the entire purchased land. Sk. Israil, the father of Plaintiff No.2 is the brother of Sk. Isaque (Defendant No.4). They are living in separate mess and estate. The Defendant No.3 is the son of Sk. Isaque. Sk. Israil, the father of the Plaintiff No.2 was serving in Citi Bank, Kolkata and for that he was residing with his wife Anisa Khatun and his only son, the Plaintiff No.2 at Kolkata. Plaintiff No.1, who is the brother of Anisa Khatun was engaged by that Sk. Israil to look after and manage their property including the suit property. Sk. Isaque being mischievous in nature having eye over the properties of Sk. Israil, created disturbances over the properties of said Sk. Israil and Anisa Khatun, despite protest from the side of the Plaintiff No.1. So, both the brothers i.e. Sk. Israil and Sk.
Legal Reasoning
this Court in seisin of the Second Appeal should not tinker with the same as it is not permissible in law. RSA No.462 of 2018 Page 9 of 13 12. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below and have also perused the pleadings and the cited documents. 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. 13. The evidence on record reveal that after the death of Sk. Israil, who admittedly was staying in Kolkata, who was working there in the Citi Bank, his widow-Anisa sought for a legal heir certificate by making necessary application before Tahasildar, Binjharpur. Anisa described herself as the wife of Sk. Israil and Plaintiff No.2 as their son and Jaitun Bibi as mother. The Plaintiff No.2 after death of Anisas filed an application for grant of legal heir certificate describing himself as the son of Anisa Khatun and Sk. Israil and as such the sole heir and successor. The Defendant No.3 having contested in both the proceedings i.e. Misc. Case No.3096 of 2008 and Misc. Case no.3543 of 2005 has lost. Being aggrieved, Appeals were filed, which were also dismissed. Thereafter, the move came from the side of the Defendant No.3 as would reveal from the evidence which remain unquestioned that he had filed one Civil Suit for declaration of his status as the son of Sk. Israil. The plaint being returned, he filed a proceeding before the Family Court for declaring his status as such. In that proceeding, an order on RSA No.462 of 2018 Page 10 of 13 compromise is to have been passed. In that compromise, Defendant no.4 has acted as the next friend of the Plaintiff No.2 which on the face of it appears to be unacceptable. When the Defendant No.4 was contesting the legal heir certificate, proceeding detriment to the interest of Plaintiff No.2 in supporting the Defendant no.3 and projecting him also as the son of Sk. Israil, he having adverse interest to that of Plaintiff No.2 could not have acted as his next friend in filing the said compromise petition which under the circumstance cannot be said to be for the benefit of the Plaintiff No.2. Therefore, on that ground alone, the order passed on compromise has no bearing at all and is not at all binding on the Plaintiff No.2. Furthermore, the proceeding for declaration of status simplicitor without any reliefs, touching upon any matrimonial dispute; before the Family Court was without jurisdiction and the proceeding ought not to have been entertained. Therefore, the order is nonest in the eye of law. 14. In that view of the matter, the Courts below are found to have rightly refused to give any weightage to the order of the Family Court in support of the case of Defendant No.3. Also the First Appellate Court in sitting over to decide the issue of status of Defendant No.3 banking upon the provision contained in the Indian Succession Act, and taking into account the ratio of several decisions which have been referred is found to have rightly held, RSA No.462 of 2018 Page 11 of 13 those orders in the Succession Misc. Case to be having no impact in ruling upon the issue. Weightage has been given and that too very rightly on the statement of Anisa, Ext.8 as the statement of a dead person admissible under Section-32(5) of the Evidence act. The registered Will, Ext.13 executed by Anisa containing declaration that Plaintiff No.2 is her only son and issue has been given due regard to and all other evidence both oral and documentary having been discussed in great detail, it appears that before accepting those documents, either in favour of the Plaintiffs case or against the case of the Defendant No.3, the First Appellate Court has examining all those evidence from all possible angles. Most interesting to note in the present case is that when Defendant No.3 is claiming himself to be the son of Sk. Israil and that is the crux of the dispute, said Defendant No.3, himself has not come to the witness box be examined in the trial and tender his evidence in order to substantiate his claim as to status as the son of Sk. Israil and Anisa. On the other hand, the Defendant No.4, who is stated by the Plaintiff to be the father of the Defendant No.3 has proved those documents which the Plaintiffs states to have been created by him for staking the claim for his own son i.e. the Defendant No.3 as the son of Sk. Israil. For this simply reason that when the Plaintiffs have led evidence that the Defendant No.3 is not the son of Sk. Israil, the person going to be RSA No.462 of 2018 Page 12 of 13 affected thereby i.e. the Defendant No.3 is not coming to give evidence to assert his sonship and deny the claim of the Plaintiff; adverse inference is bound to be drawn against the case of the Defendant No.3, that had he come to the witness box to speak about his status as the son of Sk. Israil and Anisa, he would not have been able to withstand and failed in that attempt. When he could have spoken a lot, about his childhood days and the relationship with said Sk. Israil and Anisa as also about their living and conduct as well as treatment vis-(cid:224)-vis said Sk. Israil, Anisa and the Plaintiff; his non-appearance during trial to depose in support of his status cuts his case at its root and bolsters the case of the Plaintiff. The evidence of the Defendant No.4 cannot be taken as the substitute of the evidence of Defendant No.3. 15. In the wake of aforesaid discussion and reasons, the answers to the substantial questions of law are returned against the case/ claim of the Defendant no.3 which in turn leads to confirm the judgments and decrees passed by the Trial Court as well as the First Appellate Court. 16. In the result, the Appeal stands dismissed. There shall however, be no order as to cost. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Narayan Location: OHC Date: 23-Apr-2024 18:04:28 RSA No.462 of 2018 (D. Dash), Judge. Page 13 of 13
Arguments
Isaque were not in good terms. In view of that, Sk. Isaque in order to grab properties of Sk. Israil created different documents describing Defendant No.3 who happens to be his own son as the son of Sk. Israil. On 19.08.2005, Sk. Israil died leaving behind his RSA No.462 of 2018 Page 3 of 13 wife Anisa Khatun and the Plaintiff No.2. Then his wife, Anisa filed Misc. Case No.2905 of 2005 before the Tahasildar, Binjharpur for issuance of legal heir certificate in respect of her deceased husband. The Defendant Nos. 3 and 4 contested the said case and there in the Defendant No.3 is came to assert that he is the son of Sk. Israil. The Tahasildar after making inquiry, came to conclusion that the Defendant No.3 is the son of Defendant No.4 and the Plaintiff No.2 is the only son of Sk. Israil and Anisha. During lifetime of Anisa, she had executed a Will on 30.09.2009, appointing Plaintiff No.1 as the guardian of property and person of Plaintiff No.2, who was then a minor. Accordingly, the Plaintiff No.2 and his properties remained under the care and custody of Plaintiff No.1. Anisha died on 30.10.2005, the Plaintiff No.2 filed application before the Tahasildar for issuance of legal heir certificate in his favour. That was again objected to by the Defendant Nos.3 and 4. The Tahasildar having over ruled the objection of the Defendant Nos.3 and 4, they filed Appeal before the Sub-Collector, Jajpur that also ended in favour of Plaintiff No.2. When the matter stood thus, the Defendant No.3 filed C.P. Case No.659 of 2007 before the Judge, Family Court, Cuttack against the Plaintiff No.2, being represented through Defendant No.4; describing him as the guardian. In the said case, a compromise petition was filed from both sides. Basing upon that, RSA No.462 of 2018 Page 4 of 13 the learned Judge, Family court passed an order on 01.03.2008 declaring Defendant No.3 as one of the sons of Sk. Israil and Anisa. It is stated that such order was without jurisdiction. The Defendant No.3, taking advantage of said order passed in C.P. Case No.659 of 2005, filed Succession Misc. Case No.05 of 2008 in the Court of learned Civil Judge (Senior Division), Jajpur against the Plaintiff No.2, who was then also minor. In the said proceeding, the Defendant Nos.3 and 4 by practicing fraud obtained favourable order on 21.02.2009 in respect of retirement benefits of Sk. Israil. The Plaintiffs having come to know about the said order filed an application for revocation of the said certificate which has been numbered as Misc. Case No.93 of 2008. That Misc. Case was however withdrawn pursuant to the order passed by the High Court in W.P.(C) No.7365 of 2010 in which the Defendant No.3 was described as the Defendant No.4. Thereafter, the Plaintiff No.1 filed CMA No.254 of 2010, which was dismissed. Against that order, the Plaintiff No.1 filed FAO No.20 of 2014 in the Court of District Judge, Jajpur which was pending at the time of the suit. The Plaintiff No.2 then filed I.A. No.66 of 2014 in the court of learned Civil Judge (Senior Division), Jajpur which was rejected as not maintainable. Against that order, the Plaintiff No.2 filed F.A.O. No.38 of 2014 before the District Judge, Jajpur and that is sub-judice. The Defendant No.4 never acted as the guardian of Plaintiff No.2 and Plaintiff No.2 was never under RSA No.462 of 2018 Page 5 of 13 the care and custody of Defendant No.4. It is stated that Defendant Nos. 3 and 4 by practicing fraud and falsely described Defendant No.4 as the guardian of Plaintiff No.2 and executed registered sale-deed on 26.10.2000 along with Defendant No.3 in alienating the suit properties in favour of the Defendant Nos. 1 and 2. So the said registered sale deed dated 26.10.2000, according to the Plaintiff is attacked as illegal and void. According to the Plaintiffs case, there was no necessity for the Plaintiff No.2 to sale the suit property in favour of Defendant Nos. 1 and 2. The Plaintiff No.2 was in no way benefited by the said transaction. The Plaintiffs after coming to know about the said transaction in the month of March 2000, obtained certified copies and filed the present suit. 4. The Defendant Nos. 1 & 2 by filing written statement stated that the Plaintiff No.2 and Defendant No.3 are the sons of Sk. Israil. After death of Sk. Israil, the Plaintiff No.2 being a minor was under the care custody of Defendant No.4, the brother of Sk. Israil and they were living in joint mess and estate. Said Defendant no.4 being the legal guardian of Plaintiff No.2 by accepting due consideration has sold the suit properties in favour of Defendant Nos. 1 and 2 by registered sale deed dated 26.10.2009 and delivery possession of the same to them. So, they claim to have acquired right, title, interest and possession over the property in suit by said purchase. RSA No.462 of 2018 Page 6 of 13 5. The Defendant Nos.3 & 4 although filed separate written statements, their stands remain the same. They assert that the Defendant No.4 was the guardian of Plaintiff No.2 and the Defendant No.3 is also the son of Sk. Israil and Anisa Khatun and is the brother of Plaintiff No.2. 6. The Defendant No.5, the Manager of Citi Bank in his written statement stated to have not disbursed the retirement benefit of Sk. Israil in view of pending litigations. 7. The Trial Court on the above rival pleadings, having framed six (6) issues. Upon examination of evidence both oral and documentary and their evaluations has decided the crucial issues as to the sonship of Defendant No.3 in favour of the case presented by the Plaintiffs in clearly holding that Defendant No.3 is the son of Defendant No.4 to not the son of Sk. Israil and Anisa. This finding has decided the fate of the suit since other issues have accordingly received the answers in favour of the Plaintiffs and against the Defendants. 8. The Defendant No.3 being aggrieved by the decision of the Trial Court filed First Appeal. The First Appellate court after hearing and addressing the contentions raised before it, upon examination of evidence both oral and documentary and their assessment, independently at its level has concurred that the findings of the Trial Court that the Defendant No.3 is the son of RSA No.462 of 2018 Page 7 of 13 Defendant No.4 and not the son of Sk. Israil and Anisa as the Defendant No.3 claims. So, now the decision of the Trial Court as well as the First Appellate Court in decreeing the suit by holding Defendant No.3 to be the son of Defendant No.4, but not the son of Sk. Israil and Anisa has been challenged in this Second Appeal. 9. The Appeal has been admitted to answer the following substantial questions of law: - “I) Whether the judgment and decree passed by the courts below can be supported at all in view of Exts.A and B, the voter lists, Ext.C, the deposition of Sk. Sadam, Ext.F in G.R. Case No.1476 of 2006, Ext.K, the transfer certificate, Ext.L, the Certificate of BSE, Exts.M and N, Nativity Certificate all in favour of present Appellant? II) Whether in view of judgment Ext.(J) passed in C.P. No.659 of 2007 passed by Family Court, Cuttack, it was open to court below to hold that Sk. Mistaquim is not the son of Sk. Israil?” 10. Learned Counsel for the Appellant submitted that the Courts below have ignored the documents, Exts.A & B, which are the voter list of the year 2004 and voter identity card which describe this Defendant No.3 as the son of Sk. Israil. She also submitted that the Courts below have not given due weightage to Ext.C, the deposition of Sk. Sadam, in Misc. Case No.255 of 2010, who had admitted his relationship with Sk. Mustaquim and Sk. Israil. She also submitted that when it was stated by Sk. Sadam RSA No.462 of 2018 Page 8 of 13 that said Mustaquim is his brother and Sk. Mustaquim is his father, he thereby admitted said Mustaquim is the son of Sk. Israil and such an important piece of evidence ought not to have been ignored. Referring to Ext.D, the bail bond, Ext.F, judgment in one Criminal Case, Ext.K, the Transfer Certificate of Defendant No.3, Ext.L, the certificate of the Board of Secondary Education, Orissa of Defendant No.3, Exts. M and N, nativity certificates, Ext.J is the judgment of the Family Court, Jajpur, she contended that with all these documents in support of the fact that Defendant no.3 is the son of Sk. Israil, the Courts below having arrived at finding that Defendant No.3 is the son of Defendant No.4, the same clearly suffers from the vice of perversity. She has also invited attention of this Court to the oral evidence, which stand in support of the case of Defendant No.3 that he is the son of Sk. Israil. 11. Learned Counsel for the Respondent No.1 submitted all in favour of the findings returned by the Trial Court as well as the First Appellate Court. According to him, the Courts below by assigning very good reasons have rejected the evidence let in by Defendant No.3 in establishing his case that he is the son of Sk. Israil. He submitted that said concurrent finding of the Courts below, no way suffers from the vice of perversity and therefore,