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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 383 of 2019 & RSA No. 386 of 2019 [In the matter of appeals under Section 100 of the Code of Civil Procedure, 1908. ---------------- AFR RSA No. 383 of 2019 Smt. Hemalata Swain & others ...… Appellants -Versus- Rabindra Nath Swain & others ….. Respondents RSA No. 386 of 2019 Smt. Hemalata Swain & others ...… Appellants -Versus- Rabindra Nath Swain & others ….. Respondents Advocate(s) appeared in these cases:- _________________________________________________________ For Appellants : M/s. D.P.Mohanty, R.K. Nayak, T.K. Mohanty, P.K. Swain, M. Pal & S.K. Ray, Advocates. (in both the appeals) For Respondents: M/s.Rajjeet Roy, R. Routray, S. Sourav, A. Patnaik & T.P. Tripathty, Advocates. (in both the appeals) __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 5th July, 2024. SASHIKANTA MISHRA, J. Both these appeals filed by the
Legal Reasoning
plaintiffs are directed against the common judgment Page 1 of 15 passed by the learned District Judge, Khurdha at Bhubaneswar on 03.12.2019 in RFA No. 59 of 2015/ RFA No. 60 of 2015, whereby the judgment and decree passed on 19.06.2015 by the learned 1st Addl. Senior Civil Judge, Bhubaneswar in T.S. No. 26/364 of 2010/1997 was confirmed. As per the said judgment of the trial Court, the suit filed by the plaintiff for partition was dismissed and the counter claim filed by the defendant No.13 was decreed by declaring his right, title and interest along with recovery of possession in respect of ‘C’ Schedule property. 2. For convenience, the parties are referred to as per their respective status in the Court below. 3. Before adverting to the rival claims of the parties it would be profitable to refer to the genealogy of the family at the outset, which is indicated below: Late Parsuram Swain Late Ganeswar Bhaskar (Or. Plf.) = Radhamani (D.1) Late Dwijaraj Gouripriya [D.4(a)] Rabindra Debendra Nagendra Premalata Ashalata Manorama Sarojabala (D.2) D.4(b) D.4(c) D.4(d) (D.4) D.4(e) (D.3) Page 2 of 15 4. It is evident that that the common ancestor, Parsuram left behind three sons, Ganeswar, Bhaskar and Dwijaraj and a daughter, Gouripriya. Bhaskar, the second son was the original plaintiff. He having died during pendency of the suit, his legal heirs, the present appellants were substituted. Further, plaintiff No.1(a) having also expired, his legal heirs were arrayed as plaintiff Nos. A1 to A5. Radhamani being the widow of Dwijaraj is defendant No.1. She also died during pendency of the suit without any issue. Ganesh is succeeded by his children Defendant Nos. 2 to 4 and defendant No. 4(b) to 4(e). 5. The case of the plaintiffs is that the common ancestor Parsuram had purchased Ac. 0.18 decimals of land in the name of his third son, Dwijaraj in Mouza Singhara Sahi and such purchase was out of joint family income from the ancestral agricultural properties and a grocery shop. Parsuram again purchased Ac. 1.00 decimal of land in the same Mouza in the name of Dwijaraj. Bhaskar, the original plaintiff was serving in Calcutta. He returned somewhere in the year 1952-53 to the village to look after the landed properties. At that time Dwijaraj was Page 3 of 15 working at Cuttack Collectorate and Ganeswar was working as Revenue Inspector. Dwijaraj suggested to acquire a piece of land at Cuttack for the joint family, which was agreed upon by his brothers, who also contributed from the joint family nucleus to Dwijaraj for the purpose. However, on 20.06.1956, Dwijaraj obtained a sale deed in the name of one Pradeep Kumar Routray, a minor aged about 2 years, who was the son of his father’s sister. Such purchase was not within the knowledge of the plaintiff. Nevertheless a building was constructed over the purchased land from out of the joint family funds, which the joint family possessed. On 29.11.1963, Dwijaraj obtained a deed of relinquishment from the said minor executed in favour of his wife Radhamani (defendant No.1). This was also without the knowledge of the plaintiff. Dwijaraj acquired a property under Schedule-C on 13.05.1964 again out of the joint family funds. While the matter stood thus, taking advantage of the deed of relinquishment executed in favour of Dwijaraj’s wife Radhamani (defendant No.1) he again executed a nominal deed of gift in favour of his sister-in-law, Brajabala and his Page 4 of 15 two sons, defendant Nos. 5 to 7. On such facts it was claimed that the joint family funds were utilized by Dwijaraj for acquisition and management and the documents of the property were kept within him. Dwijaraj also sold substantial extent of ancestral properties for his medical expenses claiming that all the properties, described under the Schedule-B and C are joint family properties. The plaintiff filed the suit for partition claiming 1/3rd share. 6. Defendant No.1 contested the suit by filing written statement. She took the plea that his three brothers, i.e., Ganeswar, Bhaskar and Dwijaraj (her husband) were separated in the year 1947 and Schedule-B properties are her exclusive properties being purchased out of streedhan. The properties under Schedule-C are the exclusive properties of Dwijaraj and upon his death she has inherited the same as his only legal heir. She further pleaded that she had sold the ‘C’ schedule property during pendency of the suit in favour of defendant No.3 and delivered possession. Page 5 of 15 7. Defendant Nos. 4(a), 5, 6, 7 11, 14 and 15 filed separate written statements more or less supporting the stand taken by defendant No.1. 8. The lis pendence purchaser (defendant No. 13) filed written statement entirely supporting the claim of defendant No.1 and in addition lodged a counter claim in respect of the ‘C’ schedule property. He claimed that he had purchased the property vide RSD No. 6562 dated 20.12.1999 and was delivered possession. He further alleged that he had approached the original plaintiff and his sons repeatedly to vacate the house but they did not, for which he filed the counter claim for declaration of title, eviction and permanent injunction against the plaintiff. 9. On the rival pleadings as above, the trial Court framed as many as 15 issues, out of which issue No.5 being material for adjudication of the present appeal is quoted hereinbelow: “Whether the suit- B & C schedule property are the joint family property of the plaintiff and defendant nos. 1, 2 3 and 4 or self-acquired property of late Dwijaraj Swain.? Page 6 of 15 10. On issue No.5, the trial Court mainly relied on the document marked Ext.18, which is certified copy of the proceedings in OLR Case No. 1354 of 1976, wherein all the three brothers were parties, to hold that the properties were jointly held including the properties covered under Schedule-B and C. However, on the basis of evidence laid, the trial Court held that there was severance of joint status between the brothers since long. The trial Court further held that Dwijaraj had acquired the properties under Schedule-B from his own income. As the plaintiff had failed to show that the same had been acquired from joint family funds in so far as ‘C’ schedule property is concerned the trial Court also held that the same had been acquired by Dwijaraj from his independent income. In view of the findings on the main issue the trial Court decided the other issues against the plaintiff and also held that the defendant No.13 had validly purchased ‘C’ schedule land from defendant No.1 vide RSD dated 20.12.1999. As regards the counter claim, the trial Court held that defendant No.13 being the lawful owner, is entitled to ask for vacant possession and permanent injunction against the plaintiff. Page 7 of 15 The suit of the plaintiff was thus dismissed and the counter claim was decreed. 11. The plaintiff and his LRs carried the matter in two separate appeals to the District Court in RFA No. 59 of 2015 and 60 of 2015. The first appellate Court, after considering the grounds raised and the rival contentions held that the finding of the trial Court does not warrant any interference as the oral and documentary evidence clearly shows acquisition of the scheduled properties exclusively by Dwijaraj. As such, the sale of ‘C’ schedule property by defendant No.1 to defendant No.13 was also confirmed as being valid. The first appellate Court thus held that the plaintiffs have no manner of right, title or interest over the suit property. The appeals were thus dismissed. 12. Being further aggrieved, the plaintiff-appellants have filed these appeals, which have been admitted on the following substantial questions of law. in not considering Ext.18 “Whether the courts below have committed grave error its proper prospective and by misconstruing the same have arrived at a conclusion that the same has no such in Page 8 of 15 impact in rendering the finding with regard to the nature of the property under Schedule “B” and “C” as claimed by the Plaintiff to be the joint family property?” 13.
Legal Reasoning
Heard Mr. D.P. Mohanty, learned counsel for the appellants and Mr. Rajjeet Roy, learned counsel appearing for the respondent Nos. 8, 9, 10 and 16. 14. Mr. Mohanty would argue that both the courts below have completely misread the documents marked Ext.B and Ext.N to hold that there was severance of joint status in the family. In the process, fact that the record of rights in Ext.1 to 3 are still jointly recorded and other documents such as holding tax receipts, rent receipts, ration card etc. were not considered. That apart, the so called acquisition of property under Schedule-B by Dwijaraj in the name of a minor child acting as his uncle guardian and thereafter executing a deed of relinquishment in favour of his own wife raises reasonable suspicion as to his motives. Mr. Mohanty would further argue that most importantly the first appellate Court completely misread the document marked as Ext.-18 by holding the same to be incomplete even though all the plot numbers of the joint Page 9 of 15 properties are mentioned therein. The finding of the first appellate Court, according to Mr. Mohanty is therefore vitiated on such score alone. 15. Mr. Rajjeet Roy on the other hand would argue that there being sufficient evidence of Dwijaraj having independent income, it can be safely presumed that he had acquired the properties from out of his own income. Since the plaintiffs claim jointness of status, the onus was on them to prove the same but they failed to do so. Mr. Roy would further argue that even ignoring the document under Ext.-18 there is other evidence in the form of Ext.-B and B to conclusively show that there was severance of status in the family long since. 16. Before delving upon the merits of the rival contentions it would be apt to mention that LCR had not been called for at the time of admission of the appeals. However, Mr. D.P. Mohanty, learned counsel for the appellants produced certified copy of the document marked as Ext.-18, which, on the consent of learned counsel for both parties was taken into consideration. In view of the Page 10 of 15 order proposed to be passed and having regard to the availability of the document marked as Ext.-18 this Court did not deem it proper to call for the LCR at the time of final hearing. 17. As has been narrated in some detail hereinbefore, the case of the plaintiffs is that the properties under Schedule-B and C are joint family properties while the defendants claim the same to be self-acquired properties of Dwijaraj, the third son of Parsuram. According to the plaintiffs, the properties in question were acquired by Dwijaraj from out of the joint family funds being entrusted to do so by his other brothers. Further, such properties after being acquired were blended with other joint family properties. The plaintiffs have relied upon several documents to prove jointness such as, Exts. 20, 21, 21/a to 21/d, 22, 22/a to 22/c, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33. The plaintiffs further strongly relied upon the photostat copy of certified copy of the order sheet and enquiry report in OLR Case No. 1354 of 1976 marked Ext.18 to buttress their contention that the schedule Page 11 of 15 properties are joint properties. The first appellate Court disbelieved the said document by holding as follows: ’B’ and 35. However, a perusal of the joint petition reveals that Bhaskar and Dwijaraj have noted in the petition about the property of their father Parsuram Swain. In the petition, there is no reference about subsequently acquired properties viz. schedule ’B’ and ’C’ properties. Further, a perusal of the list (in two sheets), supposedly annexed to the above noted joint petition, reveals that on the first sheet, some properties have been mentioned against Sl. No.1 to Sl. No.19; and on the second sheet, schedule ’C’ properties have been mentioned at Sl. No.38 and Sl. No.39. But, very strangely, Sl. Nos.20 to 37 of the list are missing. So, the list is not complete and the plaintiffs do not explain the missing part of the list i.e. properties noted against Sl. Nos.20 to 37. This makes the list doubtful. Further, on the list, at places, there are overwritings and use of pen in different inks and writings have also been scored out. The total acreage has also been scored out and written as 6.98. There is no initial below the overwritings, using black ink and scoring out. So, the list appears to be suspicious and it seems to have been procured for the purpose of this case, therefore, cannot be relied upon. Further, the very credibility of the OLR proceeding stands demolished by the evidence of P.W.1, who has stated in para-43 of her deposition, that Pranakrushna Parida was not their Bhag tenant and he had filed a fake OLR case claiming to be a Bhag tenant. In the same para, P.W.1 has admitted the suggestion that, to save Bhaskar and Ganeswar, Dwijaraj had signed on the objection of the OLR case. This testimony of P.W.1 lends credence to the contention of the the defendants objection petition to save ancestral lands being given to Pranakrushna Parida by OLR Authority. In view of the above reasons, thus, it cannot be held that on the basis of Ext.18, Dwijaraj admitted schedule ’B’ and ’C’ properties to be joint properties in the OLR proceeding. that Dwijaraj had signed [ Emphasis added] in Page 12 of 15 18. As already stated, this Court has perused the photostat copy of certified copy of the document marked Ext.18 at the time of hearing. It is seen that the entire list contains 39 items. The list has two columns on the same page i.e. from serial No. 1 to 19 in one column on the left side and serial Nos. 20 to 37 on the next column on the right side. Serial Nos. 38 & 39 are mentioned on the next page. It is quite evident that while perusing the list, the first appellate Court appears to have missed the second column containing serial Nos. 20 to 37. Such being the case, the finding that the list is doubtful cannot obviously be sustained. Since Ext.18 is a vital piece of document being the order sheet and enquiry report of a quasi judicial proceeding (OLR Case) the same cannot be taken lightly more so when the particulars of the scheduled properties have been mentioned therein. Having regard to the nature of the documents, this Court is persuaded to hold that had the documents been correctly read by the first appellate Court, it would have had a material bearing on the ultimate finding rendered in respect thereof. Page 13 of 15 19. Now what would be the effect of the glaring omission by the first appellate Court as mentioned above. From what has been narrated hereinbefore as regards the rival contentions it is obvious that the decision of the first appellate Court turned on its reading and interpretation of Ext.18. The first appeal must therefore be held to have not been decided on proper and complete reading of the evidence on record. 20. Under such circumstances there is no other option than to remit the matter to the first appellate Court to decide the appeals afresh considering the effect of document marked Ext.-18. This, according to this Court is necessary for a just decision of the case. This Court is conscious of the fact that ordinarily the appellate Court should make endeavour to conclude the litigation finally but then this Court finds that in the instant case the effect of the document (Ext.-18), misread by the first appellate Court as stated above, has got to be weighed against the other documents admitted into evidence. Such an endeavour would push this Court into a factual enquiry, Page 14 of 15 which is not expected to be done in a second appeal under Section 100 of Code of Civil Procedure. 21. There is thus no other option before this Court than to remand the matter to the first appellate Court to rehear the appeal afresh specifically on the following point.: “What would be the effect of the document marked Ext.18 with regard to the nature of property under Schedule –B and C of the plaint as compared to the other evidence on record.” 22. For the foregoing reasons therefore, the appeals are allowed, the impugned judgment and decree passed by the first appellate Court is set aside. The matter is remanded for fresh hearing on the point as framed above. The suit being of the year 1997, the first appellate Court shall do well to try and dispose of the first appeals as early as possible preferably within a period of four months from the date of receipt of records. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 5th July, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jul-2024 19:45:48 Page 15 of 15