Orissa High Court
Naladhar Mahapatra And Anr. vs Seva Dibya And Ors. on 21 August, 1990
Equivalent citations: AIR1991ORI166, AIR 1991 ORISSA 166, (1991) CIVILCOURTC 129 (1990) 70 CUT LT 510, (1990) 70 CUT LT 510
JUDGMENT A.K. Padhi, J.
1. Both the appeals arise out of a common judgment. T.S. No. 122 of 1973 was filed by Sova Dibya for partition of Schedule 'A' properties, claiming 6 annas share and Title Suit No. 206 of 1973 was filed by her praying for permanent injunction. As in both the suits and facts alleged were same, they were heard analogously and a common judgment was passed in both the suits. In First (contd. on 2nd col.) Appeal No. 34 of 1980, the judgment and decree of T.S. No. 206 of 1973 is challenged, while First Appeal No. 162 of 1978 arises out of T,S. No. 122 of 1973. Defendants 1 and 2 are same in both the appeals.
2. The genealogy between the parties as described in the plaint is as follows: --
Natha Meihapatra Jai Basu Iswar C. S. Paramananda Banchhanidhi = Sabitri(d-1) Balunki Gunu Bhaskar (d-5) Dayanidhi =Chobani (wife) d-7 Pranakrushna Sova Dibya (wife) plff .
Braja (d-3) Raja (d-4) Gobardhan Kunlala (wife) d-5 The brief facts as stated by the plaintiff are, the properties described in Schedule 'A' of the plaint stood jointly recorded in the name of Banchhanidhi, Balunki, Iswar and Paramananda. In some items separate notes of possession of the parties were also noted. Each of the members was in amicable possession of different plots but there was no partition by metes and bounds. Paramananda did not have any issue, due to affection had gifted his share equally to Banchhanidhi and Balunki on 21-1-1929. Each of the branch is entitled to 14th share i.e. 4 annas. A Banchhanidhi and Balunki are entitled to the share of Paramananda that is plaintiff claimed 6 annas share.
3. Banchhanidhi had married one Kokila. Kokila died when Pranakrushna, son of Banchhanidhi was still a child. Sabitri defendant No. 2 was a distant relation of Kokila. Banchhanidhi brought Sabitri to take care of Pranakrushna. As Sabitri looked after Pran-krushna as son and since there was no other lady member in the family she was treated well by every body. Banchhanidhi died near about the year 1942 and Pranakrushna died in the year 1954. After the death of both the male members defendant No. 1 who happens to be the brother's son of Sabitri visited the family and in that process without any consideration and dominating over the will of Sabitri who had no right to the properties belonging to Banchhanidhi has taken away a frudulent sale deed regarding some properties which is described as Schedule 'B' in the plaint. Sabitri being a stranger to the family could not have executed a sale deed on 15-7-1957 in favour of defendant No. 1. With these assertions, plaintiff has prayed for declaration that the sale deed executed in favour of defendant No. 1 by defendant No. 2 to be invalid, inoperative and also prayed for partition. In T.S. No. 206/73, plaintiff prayed for injunction.
3A. Defendants 1 and 2 in the joint written statement pleaded that after the death of Kokila, Banchhanidhi married Sabitri as his second wife to look after Pranakrushna and as such Sabitri is the widow of Banchhanidhi and not a stranger to the family. After the death of Pranakrushna for family necessity, defendant No. 2 had sold the properties for consideration to defendant No. 1. Alternatively it was pleaded by defendant No. 1 that from the date of sale i.e. 15-7-1957, he being in possession of the Schedule 'B' properties openly with hostile animus, has perfected his title by adverse possession.
Defendants 3 to 5 filed a joint written statement and almost admitted the facts averred in the plaint.
3B. The trial Court after assessing the evidence on record gave the findings in T.S. No. 122/73:
(a) defendant No. 2 has failed to prove that she was the legally married wife of Banchhanidhi;
(b) defendant No. 2 had no title in the property to convey to defendant No. 1;
(c) Pranakrushna died on 10-6-1954 and after death of Pranakrushna, plaintiff succeeded to 6 annas interest of the suit properties as the only heir of Banchhanidhi;
(d) defendant No. 1 did not acquire title by adverse possession; and
(e) under Ext. A sale deed dated 15-7-1957, no title passed to defendant No. 1.
With the above findings decreed the suit preliminarily for partition. In T.S. No. 206/ 73, injunction was granted against defendants.
4. Learned advocate for the appellants submits that:
(i) trial Court has not assessed the evidence on record in the proper perspective;
(ii) materials on record prove beyond doubt Sabitri was the legally married of Banchhanidhi;
(iii) defendant No. 1 has perfected title by adverse possession; and
(iv) Sabitri had right, title and interest over the property to convey to defendant No. 1.
The respondents on the other hand submitted that there is no evidence on record that Sabitri was legally married wife of Banchhanidhi and the findings of the trial Court are correct.
5. Both the sides advocates submit that the evidence adduced on the side of the plaintiff and also adduced on the side of the defendant are admissible under Section 50 of the Evidence Act. In AIR 1959 SC 914 Dolgobinda Paricha v. Nimai Charan Misra, Hon'ble Justice S. K. Das speaking in the Court has observed (at page 918):
"On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact, it states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the fact section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are-
(1) there must be a case where the Court has to form an opinion as to the relationship of one person to another;
(2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact;
(3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship, in other words, the person must fulfill the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the 'belief' or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conductor outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of Section 30 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at page 309 : AIR 1943 Cal 76 at p. 80.
It is only opinion as expressed by conduct which is made relevant. This is how the conduct comes in, The offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision; its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such
evidence and come to its own opinion as to the 'factum probandum' relationship in question."
After referring to Section 60 and discussing the inter relation between Section 60 and Section 50 and his Lordship observed -
"If we remember that the offered item of evidence under Section 50 is conduct in the sense explained above then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 50. This, in our opinion, is the true inter-relation between Section 50 and Section 60 of the Evidence Act.....,..."
6. I have quoted this decision in extensive since this AIR is the main decision on Section 50 of the Evidence Act. Following AIR 1959 SC 914 (supra), 33 (1967) CLT 740, (Ulla Dei (plaintiff) v. Malli Bawa (defendants)), his Lordship Mr. Justice G. K. Misra speaking in the Court has observed (at page 746):
"In the light of the aforesaid analysis, Mr. Mohapatra's criticison may be answered thus."
(i) Special means of knowledge must be proved independent of the opinion expressed by conduct. If, however, the opinion of a third person is expressed by different types of conduct as exercising the opinion at different times, special means of knowledge would be established thereby. The gathering of special means of knowledge is not confined only to the members of the family, but has been given a wide connotation by the expression 'otherwise'.
(ii) The third person must himself term an independent opinion as to the existence of the disputed relationship. It is desirable that all the relevant facts constituting the elements of Section 50 are put to the witness in examination-in-chief so that the Court would be in a position to form an opinion of its own and come to the conclusion that such relationship existed. This does not, however, mean that the Court is precluded from coming to its own independent conclusion from disjointed statements of facts not narrated in logical sequence, if such a conclusion is permissible on the materials on record.
7. In 38 (1972) CLT 44: (AIR 1972 Orissa 141) Balaram Das v. Jayakrishna Das his Lordship after opinion as to what are the essential requirements of Section 50 has further stated (at page 143 of AIR):
"......Every one of them has merely made a bare statement that Colin is either the sister of Ramchandra or that she is the daughter of Satyabadi. None of them has given evidence about the conduct on the basis of which that opinion has been formed. None of them has indicated that he had any special means to know the existence of such relationship. True it is, that on these points, there was no cross-examination, but it appears to me, that having regard to the language of Section 50, it was the duty of the counsel appearing for the plaintiff to put all material facts to the witness in examination-in-chief to elicit answers with a view to bring the evidence within the ambit of Section 50 without leaving the matter to the chance of cross-examination......."
After keeping in view the above dictums, analysis of the evidence of the witnesses examined on both the sides are to be made.
8. The defendants have examined 6 witnesses. D.W. 1 is the defendant. She had deposed that she had married Banchhanidhi as per ceremonial customs. At the time of her marriage, Pranakrushna was 6 to 7 years old. Her evidence has not been demolished in cross-examination. In the cross-examination, it has been suggested to her that she is the widow of one Dhobei Das which she has denied. Her evidence regarding married status is supported by the fact that she continued to stay in the family even after the death of Banchhanidhi and Pranakrushna.
9. D.W. 2 is the cousin sister of Sabitri. He has stated that "after the death of Kokila, Sabitri married to Banchhanidhi". In cross-examination he has stated that "Pranakrushna was aged 6 to 7 years by the time of death of Kokila", "Pranakrushna is elder to me by 2 to 3 years". Banchhanidhi married two years after the death of Kokila. His evidence shows that he was a mere boy about 6 to 7 years when Sabitri came to the house of Banchhanidhi for which his evidence is not acceptable so far as marriage of Sabitri is concerned.
10. D.W. 3 also claims to have seen the marriage. In the cross-examination he has stated that "I had first acquaintance with Banchhanidhi Mohapatra 30 to 35 years back" while in the examination-in-chief he has stated that Sabitri had married at the age of 14 years about 43 to 45 years back. For this reason his evidence is not acceptable to prove the marriage of Sabitri.
11. D.W. 4 has stated that Sabitri is the widow of Banchhanidhi Mohapatra. For such a statement he claims to be having his house withint 500 cubits from the house of the parties. His evidence is not acceptable under Section 50 of the Evidence Act as he has not deposed that why he held the opinion that Sabitri is the widow of Banchhanidhi.
12. D.W. 5 is an agnantic nephew of Banchhanidhi. He being a neighbour, agent and co-villager of Banchhanidhi, has special means of knowledge. Next question is whether his evidence regarding marriage of Banchhanidhi is evident by conduct. His evidence is defendant No. 2 is the second wife of Banchhanidhi. He has stated "I have seen the marriage of Banchhanidhi with defendant No. 2". So his opinion was formed by seeing the actual marriage. His evidence that he saw the marriage has not been dislodged in cross-examination.
13. D.W. 6 is defendant No. 1 and his age being 48 years, though he has stated that Sabitri was married to Banchhanidhi, his evidence is not acceptable under Section 50 of the Evidence Act as he has not stated as to from what conduct he held the opinion that Sabitri is the widow of Banchhanidhi.
14. The relevant witnesses of plaintiffs side who have deposed that Sabitri was not married to Banchhanidhi are P. Ws. 1, 2, 3 and 7. P.W. 1 is the plaintiff. She has stated in the examination-in-chief that Sabitri had married one Dhobei Das and was brought by her brother and was left in the house of Banchhanidhi. In the cross-examination she has stated that Sabitri is not the widow of Banchhanidhi. She has not given the evidence about the conduct on the basis of which she formed that opinion. Her evidence is not acceptable under Section 50. P.W. 2 claims to be the agnatic brother of Sabitri. In the examination-in-chief he has stated:
".......Dhobei Das, husband of defendant 2 died. After the death of her husband, defendant 2 used to reside in her father's house. Ratnakar Mohapatra the brother-in-law of Banchhanidhi Mohapatra took Sabitri from her father's house to the house of Banchhanidhi Mohapatra....."
This evidence of P.W. 2 is not acceptable under Section 50 of the Evidence Act as he has not stated about the conduct on the basis of which he formed that opinion though being a relation he has special means to say the existence of such relationship.
15. P.W. 3 claims to be the uterine brother of Dhobei Das. He gave his age to be 65 years. In the chief-examination he has stated that Sabitri had married his brother. In the cross-examination he has stated "the marriage took place 60 to 70 years back".
"I know Sabitri, Dhobei married her". He does not claim to have seen marriage nor he had stated that on the basis of which conduct he formed the opinion that Sabitri was married to Dhobei Das. His evidence is also otherwise not acceptable as his age is about 65 years and he says that marriage took place about 60 to 70 years back.
16. P.W. 7 claims to be agnatic nephew of Banchhanidhi. His age is 45 years at the time of deposition. He has stated-
"Banchhanidhi kept Sabitri to take care of Pranakrushna."
In the cross-examination he has stated:
"I have simply heard that Banchhanidhi kept Sabitri to look after Pranakrushna, I have also heard that Banchhanidhi did not marry after the death of Kokila. As I do not call Sabitri as Jethei I say Banchhanidhi did not marry anybody after the death of Kokila. I call Sabitri, as Dhaima."
The negative evidence that he had heard that Banchhanidhi had not married is inadmissible in evidence. His further evidence that he used to call Sabitri as "Dhaima" and not "Jethei" is not decisive of the question that there was no marriage between Sabitri and Banchhanidhi. It is consistent with either view and cannot be treated as a piece of evidence to prove his opinion regarding non-marriage as evidence by conduct so as to be relevant under Section 50 of the Evidence Act.
17. P.W. 8 though had come to depose regarding the date of death of Pranakrushna in the cross-examination he has stated that:
"I ascertained the date of death of Pranakrushna from his step mother Sabitri Dibya."
This evidence of P, W. 8 does not fulfi1l the condition to be relevant under Section 50 of the Evidence Act though he has described Sabitri as the step mother of Pranakrushna. He has not stated as to on the basis of which conduct he had formed the opinion that Sabitri was the step mother of Pranakrushna.
18. After discussing all the evidence on record, I find that none of the evidence except D.W. 1 and D.W. 5 examined on the side of the defendant is admissible under Sections 50 and 60 of the Evidence Act. The evidence of all the witnesses adduced on behalf of the plaintiff are equally either inadmissible or unreliable.
19. One document which is relevant is certified copy of the Electoral Roll vide Ext. B which has been admitted into evidence without objection. In Ext. B the voter list of the year 1970 Sabitri Dibya has been described as widow of Banchhanidhi. This electoral roll is challenged by the advocate for the respondent on the ground that the certified copy has been proved and his certified copy does not indicate that it was prepared under the Representation of the People Act, 1951. This document has been admitted without objection. It has been held in AIR 1972 Orissa 158 Kirtan Sahu, after him Uma Sahuani v. Thakur Sahu that Electoral roll is a public document and does not require any formal proof. The certified copy of a public document is admissible in evidence under Section 77 of the Evidence Act.
20. In AIR 1972 SC 608 P.C. Purushothama Reddiar v. S. Perumal, their Lordships have given the mandate that it is not open to a party to object to the admissibility of documents, which are marked as exhibits without any objection from such party. Once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
21. In 41 (1975) CLT 869 Land Acquisition Officer, D.I.S., Cuttack v. Madan Gajendra, it has been held that when a document is admitted into evidence without objection, not only the execution but also its contents are proved.
22. It has been held in AIR 1980 All 174 Smt. Aina Devi v. Bachan Singh (at page 177):--
"..........The family register was a public ocument. The entries made therein were proved by the certified copy of the extract, vide. Ext. II. The document proved its contents. The entries were presumptive evidence of what they recorded, until disproved by satisfactory evidence to the contrary. The burden was on the respondents to prove that the entries were incorrect. The same applies to the certified copy of the extract from the electoral roll, Ext. I."
23. In 62 (1986) CLT 298 Bhagyarathi Das v. Agadhu Charan Das, it has been held that documents admitted into evidence without objection, contents thereof are held to be proved.
24. From all these decisions it is clear that once a document is admitted into evidence, without objection the document cannot be challenged at a subsequent stage, but in a case where a document which cannot be admitted into evidence due to some prohibition in law, even if it is admitted into evidence without objection, the Court can come to a finding that the document though admitted is legally inadmissible.
25. In this case Ext. B has been admitted without objection. After perusing Ext. 'B' I do not find any infirmity in it to come to the finding that this document is legally inadmissible. In Ext. B defendant No. 2 has been described as the widow of Banchhanidhi Mohapatra. In the conclusion I hold that the evidence of D.W. f is corroborated by Ext. B and evidence of D.W. 5, the circumstances that she is continuing in the family even after the death of Banchhanidhi and Pranakru-shna, that she came to the house with a married status and not as a maid servant. The finding of the trial Court that Sabitri was not the legally married wife of Banchhanidhi is not sustainable.
26. From the evidence on record it is apparent that some of the parties were possessing some properties for mutual convenience but there was no partition by metes and bounds. Defendant No. 2 has also not adduced any evidence to prove that there was partition by metes and bounds. The finding that the disputed properties involved in Title Suit No. 122/73 are ancestral properties, and the same have not been partitioned in between Jail, Basu, Iswar and Paramananda is unassailable. The further finding that Paramananda died issueless by making a gift of 4 annas interest in favour of Banchhanidhi and Balmiki is also a correct finding. The evidence on record also proves that Pranakrushna died in 1954 and Banchhanidhi died after 1942. Since I have held that Sabitri was widow of Banchhanidhi, both the plaintiff and Sabitri will be entitled to the 6 annas share of Banchhanidhi that means both of them together will inherit 6 annas interest to the suit properties (in T.S. No. 122/73) each having 3 annas interest.
27. The defendant No. I has pleaded that he has perfected title by adverse possession. Defendant No. 1 is unable to say as to what extent of land was sold by Sabitri to him. Though defendant No. I claims to have constructed a house on the purchased land, he is not able to give the plot number of that land. There is no evidence on record also to come to a finding that defendant No. 1 was possessing the properties sold under Ext. A to the knowledge of co-owners and to their exclusion. Defendant No. 1 being a nephew of defendant No. 2 might be some times looking after the properties but there is no evidence on record to come to the finding that he has perfected the title by adverse possession. The finding of the learned trial Court in that regard is correct and is unassailable.
28. It has been submitted by the plaintiff that the sale deed (Ext. A) was obtained by defendant No. 1 in collusion with defendant No. 2 and without consideration. Defendant No. 2 has admitted passing of consideration and no collusion in respect of the share of Sahibtri. Hence the document is valid so far as the share of Sahibtri is concerned. Under Ext. A defendant No. 2 has conveyed the specific properties. Since there was no partition by metes and bounds, defendant No. 2 had no authority to convey title of the properties of joint owners and the sale deed in favour of defendant No. 1 cannot bind the share of the plaintiff and other co-sharers and the same is invalid and inoperative so far as the share of the plaintiff and other co-sharers are concerned, while it will be valid to the extent of 3 annas share which is to be allotted to defendant No. 2 in partition. In the conclusion I hold-
(a) Sabitri was legally married to Banchhanidhi;
(b) that both Sabitri and plaintiff are entitled to the shares of Banchhanidhi i.e. each having three annas interest in the suit properties; and
(c) that the sale deed Ext. A shall not be operative so far as plaintiffs share and share of co-sharer's are concerned but shall bind the share of defendant No. 2 which is to be adjusted in the final decree proceedings.
Defendant No. 1 being a stranger to the family is restrained from interfering in possession of the suit properties until in the final decree proceeding, any property is allotted to him. In the final decree proceeding the possession of parties as far as possible shall be respected.
With the above directions the appeals are partly allowed. There shall be no direction as to costs.