Civil Suit No. 256 of 2008 · High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.203 OF 2022 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Salipur in R.F.A. No.38 of 2013 in confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), 2nd Court, Cuttack in Civil Suit No.256 of 2008. ……… Shyam Sundar Sahoo :::: Appellant. -:: VERSUS ::- Bhaskar Nayak & Others :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … M/s. S.K. Nayak, K. Jena, S.S.K. Nayak & K. Behera, Advocates For Respondents … ---- ---- ----- ------
Legal Reasoning
CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 22.12.2022 :: Date of Judgment: 27.01.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant in this Appeal filed under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Addl. District Judge, Salipur in RFA No.38 of 2013. By the same, the Appeal filed by the present Appellant being the unsuccessful Plaintiff under section 96 of the Code in challenging the judgment and decree passed by the learned Civil Judge (Sr. Division), {{ 2 }} Second, Cuttack in Civil Suit No.256 of 2008 has been dismissed. The suit filed by the present Appellant as the Plaintiff being dismissed by the Trial Court, the same has been upheld by 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 Suit. 3. The case of the Plaintiff is that he as well as the Defendant Nos.2 to 4 and one Rama Chandra Sahu are the sons and daughter of Yudhistira Sahu, who died in the year 1980. Yudhistira being financially weak, after his death the family faced financial crisis. So, it became difficult on the part of the Plaintiff to maintain the family. He, therefore, in the year 1980 left the native village with his younger brother Rama Chandra and stayed at village Raghunath Nagar to earn their livelihood so as to maintain the family. They resided in a rented house and worked as daily labourer. In course of time, they decided to have their own house. So on 08.05.1998, the Plaintiff purchased the suit land by spending money from his own purse. It is stated that he out of love and affection purchased the property in the name of his younger brother Rama Chandra. The Plaintiff then claims to have constructed a thatched house over there and started living there with Rama Chandra. After the devastating super cyclone in the State in the year 1999, Rama Chandra went to Mumbai seeking engagement so as to earn. He there met an unnatural death in the year 2006. Receiving the news, the Plaintiff rushed to Mumbai and performed the obseques. After the death of Rama Chandra, their mother (Defendant No.1-since dead) and other brothers conspired to dispose of the suit land standing in the name of Rama Chandra. In execution of said conspiracy, on 23.08.2006, a sale deed was executed in respect of the suit land in favour of Defendant No.5. It was executed by the Defendant No.1, who is said to be having no authority. The sale is said to have been made without the knowledge of the Plaintiff although he was the Page 2 of 6 {{ 3 }} exclusive owner of the same. Thus, it is said that the sale deed executed by the deceased-Defendant No.1 in favour of the Defendant No.5 is void and illegal and the Defendant No.5 is said to have not acquired any right, title and interest over the said land and he is also said to be not in possession of the same. The Plaintiff claims that by such execution of the sale deed, his title over the suit land has in no way been affected. When the matter stood thus on 11.11.2008, the Defendant No.5 threatened to dispossess the Plaintiff on the basis of said illegal sale deed. So, the suit came to be filed. 4. The Defendant Nos.1,2 and 5 in their written statement while traversing the plaint averments have stated that the suit land originally stood recorded in the name of Krushna Dulal and Nanda Dulal as reflected in the consolidation record of right. Nanda Dulal sold his share to Gokulananda Mohanty by registered sale deed. The land was accordingly mutated in favour of Gukulananda. Said Gokulananda in order to meet his legal necessity sold the property to Ramachandra, the son of the Defendant No.1. It is said that Ramachandra had paid the consideration and he became the owner of the said property. It is further stated that Ramachandra having sent the money to Defendant No.1, the Plaintiff was entrusted to purchase the suit land in the name of Ramachandra. So, it is said that Defendant No.1 as the mother succeeded to the said suit land being the Class-I heir of Ramachandra and she has sold the suit land to Defendant No.5 by executing a registered sale deed on 23.08.2006 on receipt of valuable consideration. Accordingly, the land has been mutated in the name of Defendant No.5 and he is paying the rent and is in possession of the same. It is stated that the Plaintiff is residing with his family in a house standing over the land under Plot No.428, which is located near the suit land being intervened by a road and another plot of land belonging to the deity. The Plaintiff having an eye over the property and taking advantage of the recital of the sale deed dated Page 3 of 6 {{ 4 }} 08.05.1998 that the consideration money was paid by him to Gokulananda has filed this suit stating all falsehood and without any justification. 5. The Trial Court on the above rival pleadings having framed in total seven issues, upon examination of evidence and their evaluation has answered the important issue as to the ownership of the property in question to be not resting with the Plaintiff by virtue of the sale deed standing in the name of Ramachandra Sahu vide Ext.1. It has been held that Rama Chandra was the owner of the property in question and on his death, Defendant No.1 being the class-I legal heir succeeded to the property and has sold the same to the Defendant No.5, who is the rightful owner in possession of the suit land. Having said as above, the suit stood dismissed. The Plaintiff thus being unsuccessful before the Trial Court having carried the First Appeal has also lost in the forum. 6. Learned Counsel for the Appellant submitted that the findings of the Courts below that the Plaintiff is not the real owner of the suit property suffers from the vice of perversity. He submitted that when the very fact the money has been paid for the purchase by the Plaintiff has been clearly indicated in the sale deed under Ext.1 and as the original sale deed has been produced by the Plaintiff from his custody and as it reveals from the evidence that he was dealing with the said property executively all along, the Courts below have not appreciated all said facts in their proper prospective. He, therefore, submitted that on the available evidence on record, both oral and documentary, the concurrent findings rendered by the Trial Court that the right, title and interest over the suit land does not rest with the Plaintiff are liable to be interfered with and the Plaintiff’s suit has to be decreed. He, therefore urged to admit this Second Appeal to answer the above as the substantial questions of law. Page 4 of 6 {{ 5 }} 7. Keeping in view the submissions made, I have carefully gone through the judgments passed by the Courts below. 8. Admittedly, by Ext.1 the registered sale deed, the property is seen to have been purchased by Rama Chandra, who is the vendee thereunder. The Plaintiff claims that it is he who had purchased the property in the name of his younger brother Rama Chandra by spending money from his own pocket and it is said that Rama Chandra had absolutely no contribution towards the same. So far as the payment of consideration is concerned, in view of the mentioning of that fact that consideration was paid by the Plaintiff to the vendor under the sale deed (Ext.1) the Defendants explain that Rama Chandra had sent the money to his mother Defendant No.1, who in turn had given it to the Plaintiff to hand over the same to the vendor of Ext.1 and get the transaction completed. It is the settled position of law that in order to establish a claim over the property standing purchased in the name of one, the person claiming to be the real owner besides proving that he had paid the consideration; that he had taken the possession, that he had obtained the original registered sale deed and other original documents with him; most importantly he has to plead and prove that by said purchase of the land in question, it was intended by him that the vendee mentioned in the sale deed was never intended to be benefited under the said transaction. He has to plead and prove that for all practical purposes he was the real owner in actual beneficial enjoyment of the property whereas the other person in whose name the property is shown to have been purchased was a mere name lender and he had never been benefited by the same and, therefore, was just an apparent owner but not the real. In the instant case without even going to the details of the fact situation has emerged from the pleading and evidence on record, it is seen Page 5 of 6 {{ 6 }} that the Plaintiff has neither pleaded the above stated fact and nor has proved the same. Even accepting for a moment that the Plaintiff had paid the consideration amount for purchase of the suit land in the name of his brother, that itself is not enough to say that he derived the title by virtue of the said registered sale deed and the right, title and interest did not rest with the vendee under the said sale deed but with the Plaintiff. Moreover, in the admitted factual settings of the case, the custody of the original document is of no such significance which would have greatly mattered had the parties been strangers. 9. Another important facet of the case, which has been lost sight of by the Courts below, is that the sale transaction in question is of the year 1998 when the Benanmi Transactions (Prohibition) Act, 1988 had already come into force. In view of the provision contained in section 4 of the said Act and when the Plaintiff as his brother is not coming under the exception contained in section 3(2) of the said Act, the suit as laid is not at all maintainable. So, on this ground alone, the suit must fail. For the aforesaid discussion and reasons, this Court is of the view that there arises no substantial question of law for being answered; meriting admission of this Appeal. 10. In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Himansu (D. Dash), Judge. Page 6 of 6