Orissa High Court
Kishorilal Agrawalla Dead His Lrs. Mrs. ... vs Jugal Kishore Agrawalla Dead His Lrs. ... on 3 May, 2016
Author: D. Dash
Bench: D.Dash
HIGH COURT OF ORISSA, CUTTACK
S.A. NO. 50 OF 1991
WITH
S.A. NO. 54 OF 1991
(From the judgment and decree dated 26.10.1990 and 06.11.1990
respectively passed by the learned Additional District Judge, Bargarh
in Title Appeal No. 40/2 of 1988-89.
S.A. NO. 50 OF 1991
Kishorilal Agrawalla (dead) his
LRs. Mrs. Gitabati Agarwalla & others ........... Appellants
Versus.
Jugal Kishore Agrawalla (dead) his
LRs. Prahallad Agrawal & others ...... Respondents
For Appellants : M/s. B.Routray, A.K.Baral,
B.B.Routray, D.Mohapatra,
P.K.Dash,N.K.Sahoo,
R.K.Dash, K.B.Kar,
R.K.Mohapatra, advocates.
For Respondents : M/s B.H.Mohanty, S.C.Mohanty,
R.K.Nayak, D.P.Mohanty,
T.K.Mohanty, J.Mohanty,advocates.
WITH
S.A. NO. 54 of 1991
Jugal Kishore Agrawalla (dead) his
LRs. Prahallad Agrawal & others ........... Appellants
Versus.
Kishorilal Agrawalla (dead) his
LRs. Mrs. Gitabati Agarwalla & others ......... Respondents
For Appellants : M/s. K.C.Kar, R.C.Sahoo,
M.Jain, advocates.
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For Respondents : M/s. B.Routray, D.Routray,
P.K.Das, D.K.Mohapatra,
P.Sinha, D.K.Mohapatra,,
B.B.Routray, D.Routray,
S.Jena, S.Das, R.P.Dalai,
S.K.Samal, advocates.
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
------------------------------------------------------------------------------------------------------- Date of hearing : 24.02.2016 : Date of judgment : 03.05.2016 Both these appeals arise from the judgment and decree passed by the learned Additional District Judge, Bargarh in Title Appeal No. 40/2 of 1988-89 allowing the appeal in part and thereby decreeing plaintiff's right and title only over the Schedule-B land and confirming his possession thereon followed by the direction to the defendants to give vacant possession of the same to the plaintiff within one month with liberty to the plaintiff to proceed in accordance with law for the same, if not so delivered.
The above noted appeal under section 96 of the Code of Civil Procedure was filed by the unsuccessful defendants in the court of learned Subordinate Judge, Padmapur in Title Suit No. 130 of 1986. The trial court had decreed the suit declaring plaintiff's right, title and interest over the Schedule-A land and directing delivery of vacant possession to be given to the plaintiff in respect of the Schedule C and D land. It may be stated here that the land described in Schedule-A of the plaint is the total land over which the -3- plaintiff had sought for the relief of declaration of right, title and interest and the Schedule-B is a part of it over which there remains no prayer in specific. The land described in Schedule C and D which are the part of and within the Schedule-B land. With respect to the schedule C and D lands prayer was for eviction of the defendants. The trial court had decreed the suit granting the reliefa to the plaintiff as prayed for. The lower appellate court has granted the relief to the plaintiff in respect of Schedule-B land by way of declaration of his right, title, interest and also for vacant possession of the same. This has led the defendant no.1 to file this Second Appeal No. 50 of 1991. Being aggrieved by the judgment and decree of the lower appellate court, the plaintiff has also filed Second Appeal No. 54 of 1991 in declining the relief in respect of Schedule A land.
2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. The plaintiff's case is that Kishorilal Agrawala, the original defendant no.1 is his maternal uncle. It is the appropriate stage to state that after death of said original defendant no.1, his legal representatives being made parties are now pursuing the appeal.
One Jagannath Agrawala, the husband of the defendant no.5 is his elder father. It is stated that the father of the plaintiff and -4- defendant no.1 and that Jagannath were having good relationship and in view of that relationship, the father of the plaintiff namely, Changilal Agrawala had purchased the land described in Schedule-A of the plaint from one Gagan Bihari Barik of Jhungapali by registered sale deed benami in the name of defendant no.1 and Jagannath. It is further stated that the father of the plaintiff avoided to go for said purchase in his name as an insolvency proceeding was pending against him, thus remaining with the apprehension that lest the purchase if so made, the said property might pass to the hands of the creditors. The sale deed is dated 03.10.1961 which has been admitted in evidence and marked as Ext.13. It is the further case of the plaintiff that the consideration money of Rs.1500/- was entirely paid by Changilal to the vendor who had delivered possession of the suit land to Changilal and had authorized Changilal to receive the original sale deed from the registration office. Thus it is said that for all purposes, Changilal is the real owner and defendant no.1 and Jagannath are merely the name lenders without being in enjoyment of the property in any way at any point of time. The plaintiff claims that as dissension arose in his family, his father had allotted the suit land in his share and separated himself. So, he shifted to Diptipur and began to possess the suit land by constructing a shed over it in the year 1962 and carried on his business there. It is also stated that thereafter he constructed a big house on a side as shown in Schedule-C of the -5- plaint with the map attached to it. The construction having commenced in the year 1970, got completed in the year 1973. However, thereafter the plaintiff shifted and so he rented out the old shed to the defendant no.7 who remained in occupation of the same as a monthly tenant. It is next stated that the plaintiff approached the defendant no.1 as well as Jagannath for executing the sale deed in his name in respect of the suit land so as to regularize the matter, since it was his father who had made the benemai transaction in their names. It is stated that Jagannath acceded to said request and accordingly executed the sale deed on 29.12.1972 in favour of the plaintiff in respect of portion of the schedule-A as described in Schedule B of the plaint and thus the plaintiff constructed his house and well over it whereas the defendant no.1 did not respond to such call. It is further stated that none of the defendants ever possessed the suit land at any point of time and this Jagannath was all along residing in the village at Melchhamunda and when he was compelled to leave the village was allowed to occupy a portion of the suit house in view of their relationship. Jagannath died in the year 1974 and after his death, defendant no.5 continued to occupy the said portion. However as ill luck would have it, the plaintiff lost his two sons one in an accidental incident of drowning and the other one in a motor accident. For this his wife lost mental balance. Thus they ultimately decided to leave the place for an immediate change. Accordingly, they left the said village -6- entrusting Jagannath to look after all the properties there. It is stated that the plaintiff was all along paying the rent and in the settlement operation, the record has been prepared in the name of the plaintiff and the defendant no.1 although he had no title.
Alternatively, it is stated that the plaintiff has perfected title by way of adverse possession so far as Schedule A land is concerned. The allegations have been made that two years prior to the suit, the defendant no.5 allowed the defendant no.6 to occupy the two rooms on the western portion and the front verandah. However, being actuated with ill motive and in collusion with the defendant nos. 5 and 6 on 11.09.1986, they trespassed over the Schedule D land and started digging earth there from in order to lay the foundation for a house which was protested to by the plaintiff. The matter was then reported to the local Sarpanch for settlement. Since it ultimately failed, the suit has been filed.
4. The defendant no.1 in his written statement while traversing the plaint averments has denied the factum of benami purchase of schedule-A land by Changilal in favour of defendant no.1 and Jagannath. It is stated that the vendees as named in the registered sale deed are the real owners and there was no role of Changilal in that. It is stated that since there was an insolvency proceeding against the Changilal, during that period he had no funds to purchase the said suit schedule land. The factum of possession of -7- Schedule A land by Changilal and thereafter by the plaintiff is denied. It is stated that the consideration money was paid by the vendees and accordingly, they were delivered with the possession of the schedule-A land by the vendors. The defendant no.1 denies his knowledge about the sale deed executed on 29.12.1972 by Jagannath in favour of the plaintiff. Next stating that even if it so exists; the same is of no effect so far as he is concerned. It is further stated that during that time Jagannath was completely bed ridden and therefore he could not have executed the said sale deed and it is alleged to be a the nominal transaction and thus has not been acted upon. The assertion of the plaintiff that he has constructed a house over the suit land and well are denied. It is stated side by side that the claim of the plaintiff for change of the Record of Right has since been rejected. Alternative case of the plaintiff as regards acquisition of possession by adverse possession stands seriously challenged.
It is the case of the defendant no.1 that since purchase of the suit land in the year 1961, the defendant no.1 and Jagannath Agrawal and after him, his widow and defendant no.5 have been in physical possession of the suit land by constructing the suit house over it.
5. The trial court faced with above rival pleadings framed as many as eight issues. Rightly, taking up issue nos. 3,4 and 5 together for decision with regard to the claim of the plaintiff about benami -8- purchase and his right, title and interest as also simultaneously his alternative case, discussing the evidence on record, final answer has been recorded that the transaction was a benami one as claimed by the plaintiff where the defendant no.1 and Jagannath are just benamdars, the real owner being Changilal, the father of the plaintiff. So the trial court has gone to declare the right, title and interest of the plaintiff over the Schedule A land and in view of the evidence, it has believed the factum of possession asserting the ownership to have been with the plaintiff and his alternative case of acquisition of title by adverse possession has also been accepted. Accordingly, the suit stood decreed.
6. The unsuccessful defendants then carried an appeal under section 96 of the Code of Civil Procedure being aggrieved by said judgment and decree of the trial court. The lower appellate court sitting over to examine the sustainability of the findings of the trial court mainly on the issue nos. 3, 4 and 5, upon discussion of evidence in the back drop of the pleadings has held as under :
" xxx xxx xxx
xxx xxx xxx
From all these indications, it is not safe to rely on the plaintiff's case that the defendant no.1 and husband of the defendant no.5 were simply named lenders and the father of the plaintiff was the -9- real owner of the suit properties having purchased those benami from Debadhi, Ext.13".
The alternative case of the plaintiff as regards the claim of acquisition of title by adverse possession having been dealt and then accepting the plaintiff's case that the sale deed executed by Changilal under Ext.14 being without consideration it has held that as intended by the parties to the said transaction, the title in respect of Schedule B land covered under Ext.14 has passed in favour of the plaintiff. Accordingly, the trial court's judgment and decree has been modified to the extent of declaration of right, title and interest of the plaintiff over the Schedule B land which is a part of Schedule-A land and his entitlement to get vacant possession of the same has accordingly been found out.
7. These appeals have been admitted on the following substantial questions of law :
As per the order dated 17.09.1991 in Second Appeal No. 50 of 1991.
Whether a plea of Benami is available to be raised in view of Benami Transaction (Prohibition) Act, 1988? As per the order dated 14.07.2014 in Second Appeal No. 50 of 1991.
Whether a co-owner of a piece of immovable property without any prior partition, can alienate a specific portion of the property conferring any right on the transferee in the specific portion of the property?
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As per the order dated 23.07.1991 in Second Appeal No. 54 of 1991.
1. Whether the provisions of the Benami Transactions (Prohibition) Act, 1988 apply to the facts and circumstances of the case?
2. Whether question of adverse and hostile possession can be looked into notwithstanding the operation of the provisions of the Benami Transactions (Prohibition) Act, 1988?
3. Whether presumption attached to the record-of-rights has been rebutted by evidence on record?
As per the order dated 14.07.2014 in Second Appeal No. 54 of 1991.
Whether the findings of the learned appellate court on the nature of the alleged benami transaction suffers from misreading of the evidence of P.W.5 as well as other evidence on record?
8. Learned Senior Counsel, Mr. B.Routray on behalf of Kishorilal Agrawal and others (the appellants in S.A. No. 50 of 1991) submits that on the face of the finding of the lower appellate court that the property in question was not purchased Benami by Changilal Agrawala in the name of defendant no. 1 and Jagannath, the husband of defendant no. 5 which is based upon sound appreciation of evidence, in view of the settled position of law the lower appellate court ought not to have again gone to decree the suit declaring the right, title and interest over the Schedule - B land, when the very case of the plaintiff is that it was a nominal and sham transaction and that too without consideration. He further submits that when the
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property in question stood jointly purchased in the name of defendant no. 1 and Jagannath, the husband of the defendant no. 5 and admittedly when there was no partition between those two co-owners, sale even if said to have made by the Jagannath and even though valid in the eye of law intending to transfer the title by that in favour of the plaintiff, the same being with respect to specific portion of the property ought not to have been held to be so valid. Thus, he contends that the suit as laid by the plaintiff is liable to be dismissed in its entirety.
9. Learned Senior Counsel, Mr. B.H.Mohanty on behalf of the respondents placing the oral evidence on record coming from the lips of P.W. 1 to 12 as also D.W. 1 to 5 has strenuously urged before this Court that a finding ought to have been given that the entire transaction of sale made by the original owner, Gagan Bihari Barik was actually in favour of the father of the plaintiff whereas the defendant no. 1 as also Jagannath were just benamidars. According to him, all ingredients for establishment of a case for benami purchase in the case has been duly established through acceptable evidence, when there remains no evidence from the side of the defendants to even to counter the same much less to say to bulldoze. Thus, he contends that the lower appellate court ought not to have dismissed the suit in part by modifying the judgment and decree passed by the trial court as even accepting the possession of the
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defendants in respect of Schedule C and D properties, no such right over the suit property has accrued in their favour. According to him, the decree for eviction as passed by the trial court ought not to have been set at naught. He also places before this Court that Jagannath and defendant no. 1 are not related to each other, they belong to different families and thus are co-owners being co-purchasers and there remains no pleading or evidence as regards payment of proportionate consideration; so the sale by Jagannath is also not prohibited. In this regard, he urges before this Court that while considering the evidence to arrive at a decision, judicial notice of all those aspects such as the local habits, normal behaviour of the parties etc. are required to be kept in view. Finally, the submission is that the judgment and decree passed by the lower appellate court are liable to be set aside and those of the trial court are to be restored.
10. In addressing the rival submission and simultaneously answering the substantial questions of law, at the outset it may be stated that the transaction which is said by the plaintiff to be Benami is dated 03.10.1961 and the suit has been instituted on 30.11.1986 claiming the relief of declaration of right, title and interest over the suit land pleading that it was purchased Benami in the name of defendant no. 1 and Jagannath. Thus, here the prohibition as contained in section 4 of the Benami Transaction Prohibition Act has no applicability as the provisions of the said Act and Ordinance
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preceding to it for having come into force after the institution of the suit and as in view of the settled position of law that the provisions are not retrospective in operation and do not apply to the pending suits which had already been filed and entertained prior to the coming into force of section 4 of the Act. Reference may be made to the case of R. Rajgopal Reddy (dead) by LRs Vrs. Padmini Chandrasekharan (dead) by the LRs; AIR 1996 SC 238, wherein earlier decision rendered in case of Mithilesh Kumari & Anr vs Prem Behari Khare: AIR 1989 SC 1247 has been held to have not laid down the correct law and as such have been overruled ; and thereafter the decision in case of R. Rajgopal Reddy (supra) has been consistently followed. In view of above position of law which has been set at rest, the substantial question of law as framed at the time of admission of the appeal on the above score as indicated in the forgoing paragraph stands answered that the plea of Benami is available to be raised so far as the present suit is concerned.
11. The learned counsel for both the sides during hearing are in agreement that the following substantial question of law arises in the case so as to be answered and for that there has been thus the elaboration of the substantial question of law framed on 14.07.2014 in S. A. No. 54 of 1991. Which is restated as under :-
Whether the lower appellate court is right in upsetting the finding of the trial court that the transaction in favour of defendant no. 1 and
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Jagannath was a benami one and the real owner was Changilal when those two vendees shown in the registered sale-deed as such are the name lenders and in rendering the finding as that whether the lower appellate court has not gone to appreciate the evidence in their true prospective or that it is the outcome of perverse appreciation of evidence?
12. The ingredients for establishing a case of Benami Transaction are well known in law. In a case of Benami Transaction, there remains a real owner, ostensible owner and vender. The burden of proof to show the transaction to be a Benami Transaction rests upon the party who pleads by leading acceptable evidence. It must be shown that though the transaction in pen and paper was in the name of a person, nonetheless the real owner has remained the beneficiary althrough under the said transaction and it had never been shared by that person in whose name it merely stood as purchased. The transaction was neither intended to benefit nor has benefitted that person other than real owner in any way. The benamdar had no role in the transaction nor had any active participation except doing the act for the purpose of standing as the vendee in the document concerned in acting to the tune of and as per the direction of the real owner. The final decision for the transaction was arrived at between the real owner and the vender, the consideration for the transaction was so agreed between them and it was paid by the real owner to the
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vender. The possession of the property was delivered by the vendor to the real owner and he enjoyed the property in question as its owner for all purposes giving out so to the entire world in such a way that all had the belief that he was the owner of the same, though in the record the name of that person other than the real owner, just remained for name sake. Thus in order to ascertain as to whether the transaction is a benami one or not, the evidence, let in by the parties claiming as such, are required to be critically examined to find out as to whether he has been able to discharge the burden that rests upon him. Of course simultaneously for the purpose, the surrounding circumstances and conduct of the parties as also their relationship and other attending factors are required to be cumulatively viewed in arriving at an ultimate conclusion either in favour of benami or against.
The law covering the subject in my considered opinion requires that the appreciation of evidence has to be at a higher pedestal since such pleas are very easy to be taken and that the plea taken is to thwart the apparent claim of one which stands with the initial recognition and acceptance from the records. The whole purpose is to see that such pleas are not taken often just for plea's sake without required foundations.
13. Now adverting to our case, the question which gets posed before this Court is that whether the lower appellate court is right in
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setting aside the finding of the trial court that the transaction under Ext. 13 was a Benami holding to the contrary, if the outcome of perverse appreciation of evidence and without keeping the settled law in mind or that of the trial court was based on proper appreciation of evidence with assignment of reasons as regards fulfillment of all the required ingredients for establishing the Benami Transaction which ought not to have faced the interference in the first appeal.
At this place, let me state that in a civil suit, the standard of proof is by preponderance of probability and that undoubtedly remains fixed for every type of suit so as to ascertain the proof of a particular fact pleaded by one and denied by the other. However, in certain cases where the court proceeds to decide a particular fact in issue, the appreciation of evidence stands in a higher footing than the other. The cases for example are the disputed question of factum of adoption, a plea which is very easy to be taken to deflect the natural line of succession and it is a declaration having far reaching consequences binding even against non-parties; a plea of Benami transaction where the apparent claim as seen from records is going to be given a good bye and the recognition on that score is going to be set at naught; a plea of execution of will and basing claim upon it which has the definite affect of causing deprivation to some person standing to the advantage of the beneficiary binding against the whole world being a judgment in rem and that too coming for decision when
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the testator is no more alive and the court is going to either give a seal of approval to the said act of a dead person or saying against in his absence. Thus in all such cases, not only that the court is required to appreciate the evidence in arriving at the factual finding on that score but also at the same time, it has to see that no such suspicious features touching the root stand in the way and if any such so surfaces, those are required to be sufficiently repelled by the party staking the claim as such when also all the attending circumstances and subsequent developments are to be viewed for considering their impact either way over the same.
14. However before taking up above exercise in the case in the light of aforesaid, one important fact that emerges from the pleading in the plaint has to be kept in view and cannot be lost sight of as the same has material bearing. While the said transaction Ext. 13 is said to be a Benami one in the name of defendant no. 1 and Jagannath, the husband of the defendant no. 5 by the Changilal, the father of the plaintiff on 03.10.1961, it has been further pleaded that since it was so purchased Benami, accepting the request, Jagannath sold back the property in his possession to the plaintiff by executing the registered sale-deed dated 29.12.1972 and it is next said that said transaction was actually a nominal and sham one where there was no payment of consideration etc. The lower appellate court has accepted this Ext. 14 to be a sale-deed to have clothed the plaintiff
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with the title in respect of Schedule B property involved under that deed. The plaintiff banks upon the theory of Benami Transaction so far as Ext. 13, the sale-deed dated 03.10.1961 is concerned and now for part property for which he has obtained the sale deed, Ext. 14, his claim is again based upon Ext. 13 and he is not pressing Ext. 14 into service. It is true that in a case of Benami Transaction, the recitals of the documents for that very transaction has very little impact in coming to a conclusion as regards the nature of transaction and those do not stand in the way. The said aspect can be proved through other evidence by the party who challenges the recitals in saying that those were his own handiwork. In the given case however, eyebrows get raised that when the transaction under Ext. 13 was Benami one and that as per the plaintiffs case had clothed his father with title and ownership, then what was the necessity for again obtaining a sale- deed executed by one of those purchasers vide Ext. 14. When the plaintiff claims the transaction to be a nominal and sham one without any consideration and just to get back the property pushing the earlier sale-deed to oblivion certainly he having relied upon that subsequent transaction, finally can be said to have accepted the same to have clothed title in his favour and thus is bound by the recitals made therein which has rather greater force in the facts and circumstances of the present case that when Ext. -13 is said to be a Benami Transaction, wherein Changilal was the real owner, he is not
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the vendee under Ext. 14 and no such step has been proved to have been taken by him during his life time whereas on the other hand Ext. 14 has been taken by the son of the so called real owner of the transaction of sale vide Ext. 13 who is now the plaintiff in the present suit. The plaintiff who is the son of Changilal is the vendee under Ext. 14 and that has come into existence after a decade of the initial transaction. The recitals under Ext. 14, therefore, in my considered view being of great significance for proper appreciation, let those be quoted:-
"Ehi bikrayanama dalil lekhi debara karana emanta ki uparokta panchakhana barnita sampati ambha sampadanakarinka khas dakhali sampati ate, ambhe taha nirapadare bhoga dakhala kari asuachhu. Ethiku ambhara kharcha sakase tankara nitanta darakar hebaru adya ebang apana grahitankatharu nagada 700 tanka (sata saha tanka) ganidei tanka mulyare ambhara khas dakhali Ac. 33 decimal apananku bikraya karidei tahinre purna dakhala madaidelu o ehi bikraya sampatire thiba gachha, machha, pani xxxx xxxxx xxxxx apana o aapanankara putra, poutradi utaradhikari krame jabata chandrark nirapadare bhoga dakhala karibe o jaha chainbe taha kariparibe. xxxx xxxxx xxxxxx xxxxxx xxxxx xxxxx xxxx xxxx".
From the above recitals, even slightest hint is not received that this executant of the sale-deed under Ext. - 14 was a benamdar
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or even that he executed the sale-deed keeping the request of the plaintiff in just formally and nominally reconveying the property and that he was having no such interest over the same under Ext. 13. As it appears, the plaintiff smartly wants to avoid the rigours of the above recitals by going to have a summersault in saying that Ext. 14 is a nominal and sham transaction.
15. Here let me also state that said plea itself is not entertainable in the eye of law. In a case of nominal and sham transaction, the foundation stands that by such document no transaction has actually been effected and the transferor retains the title. So such a stand is available to be taken only by the transferor that he merely executed the document without intending to transfer the title which in fact he retained and continued to enjoy the property as such. But in the instant case, the said plea is taken by the purchaser. So, it is not understood as to what he actually means to say by that and in what direction it leads him and as to which destination. If inference is drawn then it may be said that he wants to plead that the transaction did not affect his title over the land that he was having as the successor of Changilal, the real owner. In this situation, undoubtedly the burden heavily lies upon him to prove as to for what purpose then this document was brought into existence by taking up the said exercise and unless that is duly established, the very plea of Benami itself falls flat on the ground and bites dust as
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those amount to blowing hot and cold in the same breath. Let us again further examine in that light, the evidence.
The important witness in this connection is P.W. 18 who is the identifying witness to the said sale-deed under Ext. 14. His evidence is simply on the score that Jagannath having expressed his desire to execute the sale-deed in favour of the plaintiff requested him to stand as an witness and accordingly he stood as such in the transaction under Ext. 14. The other witness is P.W. 9 who has deposed about the scribing of the said document and its execution in his presence. Next witness is the plaintiff himself. Although he has stated in support of the plaint averments, nonetheless the fact stands that the same goes without receiving any corroboration from any other source. Another important feature which surfaces here that cannot also been lost sight of is that when it is said that Jagannath accepting the request of the plaintiff came forward to execute a sale-deed and the defendant no. 1 did not respond in a positive manner, however at the same time, it is seen that having taken the sale-deed from Jagannath under Ext. 14 in the year 1972, the present suit has been field only in the year 1986 i.e., almost after about a decade and half and for the same also there remains no such cogent explanation which in the given fact situation stands as a must. Thus, even without going to examine the evidence and find out as to if the appreciation of the same by the trial court is proper or that of the lower appellate court in
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arriving at the decision on the issue of Benami, this Court is led to hold that the transaction under Ext. 13 was not Benami one. For the aforesaid, the ultimate conclusion arrived at by the lower appellate court so far as the nature of transaction under Ext. 13 is concerned in finding that on defendant no.1 and Jagannath, the husband of defendant no.5, the title over the land purchased under Ext. 13 rested is not liable to be interfered with.
At this place it may be placed that the defence of defendant no.5 that such sale deed under Ext.14 is the outcome of fraud has neither been pleaded in detail nor duly established by required evidence. On this factual score, the courts below have recorded the concurrent finding. During hearing nothing is shown that the appreciation of evidence in deciding this factual aspect as done by the courts below suffers from the vice of perversity so as to call for interference.
16. With the above conclusions, the curtain however does not get finally drawn since automatically another question springs up which has not at all been kept in mind by the lower appellate court that whether the sale-deed executed under Ext. 14 in favour of the plaintiff by one co-owner being a co-purchaser under Ext. 13 can be taken to have clothed the title in respect of the specific property as indicated in Ext. 14 so sold upon the plaintiff. Admittedly, there remains no evidence as regards proportionate payment of
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consideration under Ext. 13 by the vendees i.e., defendant no. 1 and Jagannath, the husband of defendant no. 5 and there is no case in specific also pleaded. So as per the sale-deed under Ext. 13, in view of the provision of section 45 of T.P. Act each of the purchaser has to be held to be having equal interest over the property so purchased under Ext. 13. In the instant case, when the entire property described in Schedule A, measures Ac. 2.65 decimals, no doubt the property described in Ext. 14, comes to Ac. 1.33 decimals which is approximately the half and as described in the Schedule to be Ac. 1.26 decimals. Be that as it may, specific portion and part has been indicated in the sale-deed under Ext. 14. Thus, while holding that the plaintiff under Ext.14 has been clothed with title in respect of the interest that the vendor was having over the entire Schedule -A property by virtue of the purchase under Ext. 13 with defendant no. 1, it is not further permissible in law to hold that by such Ext. -14, the plaintiff has been clothed with the title in respect of that property as specifically described therein. The sale-deed Ext. 14 having clothed the plaintiff with the title in respect of the half interest that Jagannath (vendor) was having over the property described in Schedule -A, this Court is of the clear opinion that the decree as passed by the lower appellate court cannot stand and thus it needs modification. There ought to have been a preliminary decree for partition of the property described in Schedule - A allotting the half share to the plaintiff so far
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as the half interest of Jagannath over the property covered under Ext. 13 is concerned with further direction for deputation of Civil Court Commissioner to cause division of the property under Schedule -A as above taking into account all the equitable factors including the convenience of the parties, their respective possession and accordingly for drawal of final decree.
17. Provisions of Order 7, Rule 7 of the Code of Civil Procedure not only allows the plaintiff to claim relief either simply or in the alternative but also further empowers the court to grant either general relief or other relief as the court may think just to the same extent as if had been asked for. The court has thus the power to grant either general relief or other relief which appears to it to be legitimate and proper in any case even though such reliefs have not been specifically asked for. The court in exercise of this power obviously cannot grant larger reliefs than what has been claimed by the plaintiff but it can always grant a lesser relief as found just and proper and further such reliefs must not be either wholly inconsistent with the original claim nor takes the defendant by surprise depriving the opportunity to meet the same.
The question here relates to title of the parties over the suit land. By the process as aforementioned neither party is caused with any surprise in saying that they had no notice and thus had no opportunity. In the instant case as against the claim of larger relief by
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plaintiff, he being found entitled to a lesser relief the same is therefore allowable in law being just and proper more so when such reliefs are not found to be wholly inconsistent with the plea of the defendants nor can be said to be taking the defendants by surprise so as to cause any sort of deprivation of opportunity to them in any way. Rather the facts, as established justify the granting of smaller relief which stands as the only solution.
In that view of the matter, this Court while disposing the appeals finds it to be a fit case so as to exercise the power under Order 7 Rule 7 of the Code and accordingly feels inclined to modify the decree of the lower appellate court in passing a preliminary decree for partition of Schedule -A property declaring half share of the plaintiff over the same in further directing for deputation of a Civil Court Commissioner for making the division of Schedule A property in the field between the plaintiff and defendant no. 1 in accordance with their respective shares in equal half by taking into consideration and bestowing due attention upon all the equitable factors including the convenience of the parties, their possession, enjoyment etc. and respecting those to the maximum extent as far as possible and practicable and for drawal of final decree in accordance with the same so as to finally put quietus to the lis.
18. With the modification of the judgment and decree passed by the lower appellate court to the extent as stated above, the appeals
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are accordingly disposed of. In the facts and circumstances of this case, there shall however be no order as to costs throughout.
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D. Dash, J.
Orissa High Court, Cuttack The 3rd May, 2016/Routray/Narayan