Orissa High Court
Brundaban Pradhan And Another vs Kaibalya Pradhan And Others on 28 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.228 of 2002
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Brundaban Pradhan and another .... Appellants
-versus-
Kaibalya Pradhan and others ..... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. Subham Sharma,
Advocate.
appearing on behalf of
Mr. S.K. Padhi,
Sr. Advocate
For Respondents- None
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :24.06.2024 :: Date of Judgment :28.06.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellants of this 2nd appeal were the defendants before the Trial Court in the suit vide T.S. No.12 of 1995 and they were the respondents in the First Appeal before the First Appellate Court vide T.A. No.65 of 1999.
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{{ 2 }} The respondents of this 2nd appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.12 of 1995 and they were the appellants before the First Appellate Court in the First Appeal vide T.A. No.65 of 1999.
3. The suit of the plaintiffs (respondents in this 2nd appeal) before the Trial Court against the defendants (appellants in this 2nd appeal) vide T.S. No.12 of 1995 was a suit for declaration and mandatory injunction.
4. The case of the plaintiffs against the defendants as per their plaint in the suit vide T.S. No.12 of 1995 before the Trial Court was that, the properties described in Schedule 'A' are the suit properties, those are the part of Schedule 'B' properties. According to them (plaintiffs), Gopinath Pradhan was their common ancestor. Gopinath Pradhan died leaving behind his wife Hadiani and two sons i.e. Dama and Abhi. Hadiani died leaving behind her two sons i.e. Dama and Abhi. The first son of Gopinath Pradhan i.e. Dama Pradhan died leaving behind the plaintiffs as his successors. The second son of Gopinath Pradhan i.e. Abhi Pradhan died leaving behind the defendants as his successors.
On 21.03.1973, Dama Pradhan and Abhi Pradhan were separated and divided their all joint properties between them amicably and accordingly since then, Dama Pradhan and Abhi Pradhan enjoyed their respective allotted properties separately. About twenty years back, the Page 2 of 18 {{ 3 }} father of the defendants expired. After the death of the father of the defendants, the defendants started selling their properties, to which, they had got through the above amicable partition and accordingly, they (defendants) sold their all properties.
The father of the plaintiffs died three years back. At the time of amicable partition between Dama and Abhi on dated 21.03.1973, their mother Hadiani was alive. Hadiani died about fifteen years back. Hadiani had purchased the properties described in Schedule 'B' including the suit properties described in Schedule 'A' on dated 20.07.1938 through Registered Sale Deed No.2549 of 1938 from one Badapalli Samantara and his sons i.e. Simanchala and Danda. Since then, Hadiani was possessing 'B' Schedule properties exclusively as her Streedhan properties and she was paying rent of the same. Her two sons i.e. Dama and Abhi had no manner of right, title and interest over the said 'B' Schedule properties even at the time of partition of joint properties between Dama and Abhi on dated 21.03.1973. Therefore, the 'B' Schedule properties were excluded from distribution between Dama and Abhi on dated 21.03.1973, as the said 'B' Schedule properties were the self acquired exclusive properties of their mother Hadiani. Even after the distribution of joint properties between Dama and Abhi on dated 21.03.1973, Hadiani was possessing her 'B' Schedule properties Page 3 of 18 {{ 4 }} exclusively. While Hadiani was owner over the 'B' Schedule properties, she sold the said 'B' Schedule properties including the suit properties to the plaintiffs on 04.07.1979 for a consideration amount of Rs.4,000/- and delivered possession thereof and since then, the plaintiffs possessed the 'B' Schedule properties being the owners of the same, in which, the defendants have no manner of right, title and interest. The plaintiffs have sold some portions of 'B' Schedule properties to different persons through different sale deeds for construction of their house. Out of the said consideration amount, they (plaintiffs) have constructed a house on the rest unsold portion of 'B' Schedule properties. The purchasers of the parts of 'B' Schedule properties have also constructed their respective houses on their respective purchased properties. But, on dated 15.08.1993, the defendants forcibly occupied Ac.0.03 cents from 'B' Schedule properties i.e. to the 'A' Schedule suit properties in spite of the protest of the plaintiffs, though the defendants have no manner of right, title, interest and lawful possession on the same.
Therefore, without getting any way, the plaintiffs approached the civil court by filing the suit against the defendants praying for declaration of their right, title and interest over the suit properties described in Schedule 'A' and to direct defendants for vacation of the suit properties in favour of the plaintiffs by issuing mandatory injunction against the Page 4 of 18 {{ 5 }} defendants and to direct the defendants to remove the structures raised by them on the suit properties and to deliver the possession of the same to them (plaintiffs) along with other reliefs, to which, they (plaintiffs) are entitled for.
5. Having been noticed from the Trial Court in the suit vide T.S. No.12 of 1995, the defendants challenged that suit of the plaintiffs by filing their joint written statement denying the allegations alleged by the plaintiffs against them (defendants) taking their stands/pleas that, Ekadasi was the grandfather of the plaintiffs and defendants. Ekadasi had three sons, namely, Gopi, Kantha and Baishnava. Gopi, Kantha and Baishnava had partitioned their all ancestral properties between them in the year 1930 or 1940 through an oral arrangement. In the said partition, Gopi (grandfather of the plaintiffs and defendants) got 16 Bharans of land in Batisa measure. From the income of the said 16 Bharans land, Gopi had purchased certain properties including the 'B' Schedule properties in the name of his wife Hadiani. But, the same was under the possession of Gopi and after the death of Gopi, the same was under the possession of Dama, as Dama was the eldest male member of the family. Because, the father of the defendants i.e. Abhi died in his early age. Therefore, 'B' Schedule properties are the joint family properties of the plaintiffs and defendants. In fact, there was no partition of the joint properties between Page 5 of 18 {{ 6 }} Dama and Abhi. For which, the question of exclusion of the properties of Hadiani i.e. suit properties from partition in the year 1973 between Dama and Abhi does not arise. Dama (father of the plaintiffs) being the eldest male member of the family, he was looking after the entire family properties including the defendants and their mother Hira Pradhanuni and the said Dama Pradhan was taking them to the Sub-Registrar's Office, for which, Dama Pradhan might have created certain documents styling their mother as an executant. Hadiani was an illiterate pardanasini lady and any such execution if made by her regarding alienation of the 'B' Schedule properties in favour of the plaintiffs, the said alienation is not valid and binding upon Hadiani or upon them (defendants). As, the father of the defendants died in his early age, for which, the defendants came to Berhampur from their native village to earn their livelihood. So, the plaintiffs and their father were remaining in the suit village and they were appropriating all the incomes from the joint properties by providing some paddy for the maintenance of his mother Hadiani. So, by taking the advantage of the absence of the defendants from the suit village as well as their ignorance, the plaintiffs might have created certain documents in their favour in respect of the suit properties, which are not binding on them (defendants) and the said documents are void documents. In the year 1979, the father of the plaintiffs demarcated three cents of land from Page 6 of 18 {{ 7 }} survey No.6/16 and constructed a house thereon and requested the mother of the defendants to remain in that house and since 1979, the mother of the defendants was residing in the said house occasionally. The defendants while searching the documents, they (defendants) traced out an unregistered gift deed dated 24.07.1979 executed by the father of the plaintiffs and the plaintiffs in their favour (in favour of the defendants) in respect of the suit properties and accordingly, since the date of execution of such gift deed i.e. since 24.07.1979, they (defendants) are possessing the suit properties. They (defendants) had filed a suit vide T.S. No.80/1995 in the Court of Civil Judge, Sr. Division, Berhampur for partition of all the properties left by late Gopi and Hadiani, which is subjudice. For which, the present suit filed by the plaintiffs is not maintainable. Therefore, the plaintiffs have no cause of action to file the suit. For which, the plaintiffs are not entitled for any relief in the suit.
Therefore, the suit of the plaintiffs is liable to be dismissed against them (defendants).
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 10 (ten) numbers of issues were framed by the Trial Court in the suit vide T.S. No.12 of 1995 and the said issues are:-
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{{ 8 }} ISSUES
(i) Whether the suit is maintainable?
(ii) Whether the plaintiffs have any cause of action in the suit?
(iii)Whether the schedule-B properties were the exclusive properties of Hadiani Pradhanuni as her "Streedhan" properties?
(iv) Whether the said Hadiani Pradhanuni transferred the said schedule-B properties to the plaintiffs by way of registered sale deed on 04.07.1979 and the plaintiffs were in exclusive possession of schedule-B properties?
(v) Whether the defendants forcibly occupied Schedule-A properties, which is a part of Schedule-B properties without any right, title and interest over the same?
(vi) Whether the plaintiffs have absolute right, title and interest over schedule-B properties, which include schedule-A properties?
(vii) Whether the plaintiffs are entitled to recover schedule-A properties from the defendants?
(viii) Whether the defendants with the help of police took signature of the plaintiffs on a stamp paper on 29.08.1993?
(ix) Whether the suit is barred by limitation?
(x) To what other relief, if any, the plaintiffs are entitled?
7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants in respect of the suit properties, they (plaintiffs) examined 3 (three) numbers of witnesses from their side including plaintiff No.3 as P.W.1 and relied upon the documents vide Exts.1 to 5.
On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendants also examined 3 (three) witnesses on their behalf including Page 8 of 18 {{ 9 }} mother of the defendants as D.W.1 and exhibited one document from their side as Ext.A.
8. After the conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues against the plaintiffs and in favour of the defendants except issue No.3. Though, in the issue No.3, the Trial Court observed that, the suit properties were the Streedhan properties of Hadiani, but in the rest other issues, the Trial Court observed that, the plaintiffs failed to prove about the due and proper execution of the sale deed dated 04.07.1979 in respect of the 'B' Schedule properties including the 'A' Schedule suit properties by Hadiani Pradhanuni in their favour and they (plaintiffs) also failed to establish their exclusive right, title, interest and possession over Schedule 'B' properties including the suit properties. For which, the plaintiffs are not entitled for decree of declaration of their title over the suit properties and they (plaintiffs) are also not entitled for the decree of mandatory injunction against them (defendants) in order to recover the possession of the suit properties. As such, basing upon the findings and observations made by the Trial Court in issue Nos.1, 2, 4 to 10 against the plaintiffs and in favour of the defendants, the Trial Court dismissed the suit of the plaintiffs vide T.S. Page 9 of 18 {{ 10 }} No.12 of 1995 on contest with cost against the defendants as per its judgment and decree dated 25.09.1999 and 08.10.1999 respectively.
9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.12 of 1995 passed on dated 25.09.1999 and 08.10.1999 respectively by the Trial Court, they (plaintiffs) challenged the same by preferring the First Appeal vide T.A. No.65 of 1999 being the appellants against the defendants by arraying the defendants as respondents.
10. After hearing from both the sides, the First Appellate Court allowed that First Appeal vide T.A. No.65 of 1999 of the plaintiffs on contest against the respondents (defendants) and set aside the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.12 of 1995 passed by the Trial Court as per its judgment and decree dated 05.08.2002 and 17.08.2002 respectively passed in T.A. No.65 of 1999 and decreed to the suit vide T.S. No.12 of 1995 of the plaintiffs against the defendants on contest and declared the right, title, interest and possession of the plaintiffs over the suit properties and directed the defendants to deliver the possession of the suit properties in favour of the plaintiffs within a period of three months assigning the reasons that, the suit properties were the exclusively purchased properties of Hadiani, because the same was purchased by Hadiani in the year 1938 through a Page 10 of 18 {{ 11 }} registered sale deed. Accordingly, the Hadiani was the exclusive owner of the suit properties, for which, at the time of amicable partition between Dama and Abhi in the year 1973 in respect of their joint properties, the suit properties were included in such partition, because the same was the exclusive properties of Hadiani and after such amicable partition of their all joint properties, both the branches i.e. plaintiffs and defendants have sold their allotted properties to P.Ws.2 & 3. Hadiani has executed two deeds in respect of her Schedule 'B' properties. Out of which one is in the year 1974 vide Ext.A in favour of the plaintiff No.1 and other is Ext.3 in the year 1979 in favour of all the plaintiffs including the Schedule 'A' properties, so it cannot be held that, Hadiani had no knowledge about the execution and registration of the deeds in respect of the suit properties in favour of the plaintiffs. For which, in other words, it is held that, Hadiani had transferred the suit properties through registered sale deed vide Ext.3 in the year 1979 in favour of the plaintiffs properly. Therefore, it cannot at all be held that, the execution and registration of the sale deed vide Ext.3 by Hadiani in favour of the plaintiffs in respect of the 'B' Schedule properties including the Schedule 'A' suit properties was not proper, because the defendants have taken their stands in their written statement about the acquisition of their title over the suit properties through a gift deed dated 24.07.1979 said to have been executed by the plaintiffs in Page 11 of 18 {{ 12 }} their favour indirectly admitting the due and proper execution of sale deed dated 04.07.1979 in respect of the 'B' Schedule properties including the suit properties by Hadiani in favour of the plaintiffs.
11. On being aggrieved with the aforesaid judgment and decree dated 05.08.2002 and 17.08.2002 respectively passed by the 1st appellate Court in T.A. No.65 of 1999 in favour of the plaintiffs and against the defendants, they (defendants) challenged the same by preferring this 2nd appeal being the appellants against the plaintiffs by arraying them (plaintiffs) as respondents.
12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.-
(i) Whether the judgment of the lower appellate court is bad in law as it is contrary to the settled position of law that the plaintiff must succeed on the strength of his own case and must not depend on the weak points of the defendant's case?
(ii) Whether the finding that no amount of oral evidence would alter the recitals in Ext.1 is in consonance with the provisions under Sections 91 and 92 of the Evidence Act?
(iii) Whether the burden of proving the execution of the documents, which were allegedly executed by Hadiani who was an illiterate lady lies heavily on the plaintiffs?
(iv) Whether the lower appellate court was justified in declaring the right, title and interest of the plaintiffs basing on the gift deed (Ext.A) and the sale deed (Ext.3) especially when both the deeds have not been proved by the plaintiffs and are contradictory in nature?
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{{ 13 }}
13. I have already heard from the learned counsel for the appellants (defendants) only, as none appeared from the side of the respondents (plaintiffs) to participate in the hearing of the 2nd appeal.
14. As the above four formulated substantial questions of law are interlinked having ample nexus with each other, then in order to have the just decision of this 2nd appeal, all the above four substantial questions of law are taken up analogously hereunder for their discussions.
15. In order to nullify the judgment and decree passed by the First Appellate Court in favour of the plaintiffs and against the defendants, the learned counsel for the defendants (appellants) relied upon two decisions of the Apex Court i.e. Placido Francisco Pinto (D) by LRs & Anr. Vrs. Jose Francisco Pinto & Anr. & Smt. Gangabai Vrs. Smt. Chhabubai.
16. It is the undisputed case of the parties that, 'A' Schedule suit properties are the part of 'B' Schedule properties.
It is the concurrent and unchallenged findings of the Trial Court and 1st Appellate Court in their respective judgment and decree that, the 'B' Schedule suit properties, which includes 'A' Schedule suit properties were the exclusive Streedhan properties of Hadiani Pradhanuni, to which, she (Hadiani Pradhanuni) had purchased through R.S.D. No.2549 dated 20.07.1938 vide Ext.1.
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{{ 14 }} The plaintiffs have claimed their title and possession over the Schedule 'A' suit properties on the basis of the sale deed dated 04.07.1979 vide Ext.3 executed by Hadiani in their favour.
In Para No.8 of the written statement of the defendants, they (defendants) have claimed their title and possession over the suit properties through an unregistered gift deed dated 24.07.1979 said to have been executed by the plaintiffs in their favour.
The defendants have neither filed the above so called gift deed nor they (defendants) have proved the same during trial of the suit before the Trial Court.
There is no explanation at all on behalf of the defendants about the cause and reason of withholding the above so called gift deed dated 24.07.1979 from its production, on the basis of which, they have claimed their title and possession over the suit properties.
It is the settled propositions of law that, the parties to the suit like the defendants in the suit at hand are bound by their own pleadings. Because, the averments made in the written statement are admissible as per the Evidence Act.
On this aspect, the propositions of law has already been clarified in the ratio of the following decision:-
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{{ 15 }} 2020 (1) CCC 394 (Jharkhand)--Miss China Moitra Vrs. Dinanath Moitra & others--Written Statement-- Averments made in the written statement are admissible as per the Evidence Act.
17. When it is established that, the 'B' Schedule properties including the 'A' Schedule suit properties were the exclusively purchased Streedhan properties of Hadiani and when it is the case of the plaintiffs that, they have purchased the entire 'B' Schedule properties including 'A' Schedule suit properties from the said Hadiani Pradhanuni through R.S.D. No.3584 dated 04.07.1979 vide Ext.3 and when at the same time the defendants have claimed their title and possession over the suit properties through gift deed dated 24.07.1979 said to have been executed by the plaintiffs in their favour without filing and proving the so called gift deed indirectly admitting the title, ownership and possession of the plaintiffs over the 'B' Schedule properties including 'A' Schedule suit properties, then at this juncture, the above pleas of the defendants i.e. their indirect admission to the title and possession of the plaintiffs over the suit properties is ultimately establishing the due and proper execution of the Registered Sale Deed vide Ext.3 by its admitted owner i.e. Hadiani in favour of the plaintiffs, which is ultimately shifting the burden of proof regarding the allegation of improper execution of that sale deed vide Ext.3 to the defendants. Because, the defendants have indirectly admitted the title and possession of the plaintiffs over the suit properties claiming Page 15 of 18 {{ 16 }} their title and possession over the suit properties through gift deed dated 24.07.1979 said to have been executed by the plaintiffs in their favour, only for the reason that, if the title of Hadiani over the 'B' Schedule suit properties shall not transfer from Hadiani to the plaintiffs through the sale deed vide Ext.3, then the question of transfer of title of the said suit properties from the plaintiffs to the defendants through the so called gift deed dated 24.07.1979 shall not arise.
When the defendants have failed to substantiate their title and possession over the suit properties by filing and proving the so called gift deed dated 24.07.1979 in question, then at this juncture, it cannot be said that, the burden of proving the due and proper execution of the documents by Hadiani Pradhanuni in favour of the plaintiffs has not been discharged properly by the plaintiffs, because the above pleas of the defendants in para No.8 of their plaint regarding their admissions to the title and possession of the plaintiffs over the 'B' Schedule properties is ultimately/ indirectly establishing the due and proper execution of the sale deed vide Ext.3 by Hadiani Pradhanuni in respect of the suit properties in favour of the plaintiffs. Because, the defendants have admitted the title of the plaintiffs over the suit properties by relying upon a document i.e. the so called gift deed dated 24.07.1979, but as per law, they (defendants) cannot resile from the same.
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{{ 17 }} The conclusion drawn above finds support from the ratio of the following decision:-
110 (2010) CLT--535 & 2010 (Supp.II) OLR--
781--Guru Charan Pattnaik & Ors. Vrs. Bijay Kumar Pattnaik--(Para 6)--If a party relies on a document, it cannot resile from the same.
Therefore, the judgment and decree passed by the 1st Appellate Court declaring the right, title and interest of the plaintiffs over the suit properties directing the defendants to give vacant possession of the same to the plaintiffs after setting aside the judgment and decree of the dismissal of the suit of the plaintiffs passed in T.S. No.12 of 1995 by the Trial Court cannot be held as erroneous. For which, the decisions relied upon by the appellants (defendants) indicated in Para No.15 of this judgment are not applicable to this appeal at hand on facts as discussed above.
18. As per the discussions and observations made above, when the judgment and decree passed by the First Appellate Court in T.A. No.65 of 1999 in setting aside the judgment and decree passed by the Trial Court is held as not erroneous, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellants (defendants) does not arise.
Therefore, there is no merit in the 2nd appeal of the appellants (defendants). The same must fail.
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{{ 18 }}
19. In result, the 2nd appeal filed by the appellants (defendants) is dismissed on merit, but without cost.
The judgment and decree passed by the 1st Appellate Court in T.A. No.65 of 1999 in setting aside the judgment and decree of the Trial Court passed in the suit vide T.S. No.12 of 1995 is confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
28th June, 2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Jul-2024 16:31:37 Page 18 of 18