Orissa High Court
Kamala Ganik ..6 vs Bimala Biswal 66 on 19 June, 2018
Equivalent citations: AIR 2018 ORISSA 154, AIRONLINE 2018 ORI 314
THE HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO.414 OF 2011
An Appeal under Section 100 C.P.C. from the judgment and
decree dated 12.9.2011 and 19.9.2011 respectively passed by Sri
S.N. Mishra, learned District Judge, Sambalpur in R.F.A. No.2 of
2010 confirming the judgment and decree dated 10.11.2009 and
18.11.2009 respectively passed by Smt. Haripriya Dash, learned
Civil Judge (Senior Division), Sambalpur in C.S. No.130 of 2005.
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Kamala Ganik ..6 Appellant
-Versus-
Bimala Biswal 66 Respondent
----------------
For Appellant - M/s. A.R. Dash, S.K. Nanda-1, B. Mahapatra,
S. Swain, S.K. Sahu, S.N. Sahoo and
R.K. Kar
For Respondent - M/s. B. Sahoo, B. Mohanty, A. Tripathy and
Syed Faruque
-------------
PRESENT:
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
---------------------------------------------------------------------------------------------------- Date of hearing- 04.05.2018 : Date of judgment- 19.06.2018
-------------------------------------------------------------------------------------------- DR. D.P. CHOUDHURY, J. The captioned appeal is assailed against the confirming finding in the judgment and decree passed by the learned District Judge, Sambalpur in R.F.A. No.2 of 2010 which was preferred against the judgment and decree passed by the learned Civil Judge (Senior Division), Sambalpur in C.S. No.130 of 2005.
2. The appellant is the defendant before the trial court, whereas the respondent was the plaintiff before it. The description of 2 the parties would be in this judgment as per their nomenclature before the learned trial court.
PLEADINGS:
3. The unfurled story of the plaintiff is that the plaintiff and the defendant are two daughters of late Sundar Bhue who is the recorded owner of the schedule-A property vide M.S. plot No.319 of mouza- Sambalpur on rayati status. After death of Sundar Bhue the plaintiff and defendant succeeded the entire property left by their father and have been possessing the same in their own right, title and interest. On 2.1.2003 the plaintiff requested the defendant for partition of schedule-A property, but the defendant avoided.
4. On enquiry the plaintiff came to know that the defendant without knowledge and information of the plaintiff mutated the entire schedule-A property in her favour showing herself as the only legal heir of late Sundar Bhue in Mutation Case No.532 of 2001. The plaintiff being aggrieved preferred Mutation Appeal No.3 of 2003. The learned Sub-Collector, Sambalpur set aside the order of the Tahasildar, Sambalpur and remanded the matter to the learned Tahasildar for fresh disposal. Thereafter the learned Tahasildar in the mutation case after holding fresh enquiry and hearing the parties, jointly recorded the names of the plaintiff and defendant in respect of the schedule-A property. As the schedule-A property was jointly recorded in favour of the plaintiff and defendant the plaintiff requested the defendant to partition the suit property at schedule-A into two halves i.e. schedule-B and schedule-C by allotting schedule- 3 B to plaintiff and schedule-C to the defendant. Hence the suit was filed praying for partition of the suit land at schedule-A and to carve out half share of plaintiff therein.
5. Per contra, the defendant filed written statement refuting the allegation made in the plaint. It is averred by defendant that there is no cause of action arose in this case, the plaintiff has no right over the suit land, the suit is barred by law of limitation and non- joinder of necessary party. It is the further case of the defendant that the defendant is the only daughter of Sundar Bhue who was the original owner of the suit land. The plaintiff is not the daughter of Sundar Bhue. The genealogy as painted by the plaintiff is wrong and false. The mutation record does not create any right, title or interest and the suit has been filed to grab the property of her father. She expressed ignorance about any remand of mutation appeal and joint record of right prepared in respect of the suit land. Since the plaintiff has no right, title and interest over the suit land being a non-entity, she has no share in the suit land. As such, she is not entitled to any share as prayed by the plaintiff. So, the suit should be dismissed. DISCUSSIONS:
6. The learned trial court after going through the pleadings of both parties framed the following issues:-
1. Whether the suit is maintainable?
2. Whether there is any cause of action to bring the suit?
3. Whether the suit is bad for non-joinder of necessary party?4
4. Whether the suit is undervalued?
5. Whether the order of learned Tahasildar, Sambalpur in Mutation Case No. 532 of 2001 is in nullity for non-
service of notice on the defendant and has got no binding effect on defendant?
6. Whether the plaintiff is entitled for half share out of schedule 'A' property of the plaint and also entitled to get allotment of 'B' schedule property with respect to her half share out of that 'A' schedule property?
7. Whether the plaintiff is entitled for any more relief?
7. The learned trial court came to the conclusion that the plaintiff and defendant are two daughters of Sundar Bhue and they succeeded the properties left by Sundar Bhue at schedule-A. As such, she decreed the suit preliminarily in part by directing for partition of schedule-A property by allotting half share to the plaintiff and rest half share to the defendant. Learned District Judge, Sambalpur in R.F.A. No.2 of 2010 confirmed the finding of the learned trial court and dismissed the appeal.
8. The defendant filed the present Second Appeal and it was admitted on framing the following substantial questions of law:-
A) Whether the plaintiff can be held to be co-sharer of the defendant in order to claim half share of the suit property when neither the plaintiff gives any explanation as to why she could not adduce evidence of any person having special means of knowledge as required under Section 50 of the Evidence Act, 1872 about her relationship with the father of the defendant nor has in fact come forward with any such witness to support the claim?
B) Whether without the proof of the contents of the registered sale deed, any description relating to the status of the plaintiff could be of any assistance to her from the mere fact that the document has been admitted to evidence?5
C) Whether the courts below ought to have seriously doubted the entry inExts.1 and 2 as regards the status of the plaintiff where the plaintiff as also the defendant have stood as the co-executant with Sundar when they had absolutely nothing to do with the property said to have been sold under the said sale deed and for that reason whether the courts below ought to have held the document to have been created for the purpose as evidence in support of the clam of the plaintiff as regards her status running in favour of the case set up by the defendant?
9. Mr. A.R. Dash, learned counsel for the appellant relying on the decision reported in A.I.R. 1960 SC 100; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & others submitted that the question of burden of proof loses its importance when both sides led evidence. Relying upon the decision reported in (1972) 4 SCC 707; Bishwanath Rai v. Sachhidanand Singh, he further submitted that in spite of contents of letter being proved by the witness, the correctness of the contents is not proved in absence of examination of the author of the letter. According to him, in this case the document vide Ext.2 even if admitted, the correctness of such contents of the document vide Ext.2 are still to be proved by the plaintiff but not proved.
10. Mr. Dash, learned counsel for the appellant further relied on the decision reported in A.I.R. 1983 Bombay-1; Om Prakash Berlia and another v. Unit Trust of India and others and submitted that the contents of a document do not mean that such contents have got truth in it.
11. Mr. B. Sahu, learned counsel for the respondent submitted that, while adducing the evidence has clearly admitted 6 about the relationship between the parties and also admitted about execution of the registered sale deed. According to him, once the witness admitted the execution of the document, he/she is not permitted to deny the contents of the document in the Second Appeal. Further, he submitted that the R.O.R. was published showing the defendant as the sole legal heir of Sundar Bhue but on the objection made by the plaintiff, it was enquired and subsequently ROR was corrected showing the plaintiff and defendant are daughters of Sundar Bhue. According to him, Section 50 of the Evidence Act does not apply to this case and since it is a concurrent finding of facts of both the courts below, the same should not be disturbed in this Second Appeal as per the decision of the Hon'ble Supreme Court. He fully supports the judgment of the courts below.
12. Learned counsel for the respondent also relied on the decision reported in (2004) 7 SCC 107; Dayamathi Bai (Smt) v. K.M. Shaffi, where Their Lordships observed that the certified copy of a sale deed can be objected at the time of trial, but not later at appellate stage. Relying on the decision reported in AIR 1995 SC 1728; Digambar Adhar Patil v. Devram Girdhar Patil (died) and another, learned counsel for the respondent further submitted that the entries in the R.O.R. maintained in official course of business is relevant piece of evidence as per Section 35 of the Evidence Act. According to him, these decisions are applicable to the facts of this case.
13. The plaintiff filed the suit for partition claiming half share 7 in the suit land at schedule-A stating that she and defendant are two daughters of Sundar Bhue, whereas the defendant denies plaintiff's share stating that the plaintiff is not the daughter of her father Sundar Bhue. On the other hand, she claims the entire suit property being the sole successor of Sundar Bhue. The plaintiff in order to substantiate her case has adduced oral and documentary evidence, whereas the defendant adduced oral evidence, but no documentary evidence.
14. Section 103 of the Evidence Act speaks about the burden of proof. According to this provision the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. It is also reported in the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & others (supra) at paragraph-10 as follows:-
"666The expression "burden of proof" really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case, because both parties have introduced their evidence on the question of the nature of the deity and the properties and have sought to establish their own part of the case. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic."8
15. With due regard to the aforesaid decision it is clear that when both parties have led evidence the onus, becomes academic and it is divided. On the other hand the respective party has to prove their own plea. Since in the instant case the parties have led evidence to prove their respective plea, they are left to prove same accordingly.
16. The plaintiff has adduced two witnesses and some documentary evidence. P.Ws.1 and 2 have proved the certified copy of the sale deed vide Ext.2 to show that in 1986 Sundar Bhue and his two daughters plaintiff and defendant have sold some rayati land of Sundar Bhue to Saraswati Bhuyan. In that document the plaintiff and defendant have been arrayed as daughters of Sundar Bhue. No doubt Ext.2 is the certified copy and the original is not produced. The learned counsel for the appellant categorically argued that such document cannot show any truth in the contents even if it is a public document, because the original sale deed is a private document, whereas the certified copy of a sale deed is a public document.
17. According to Section 74 of the Evidence Act such public document is a secondary evidence as per Section 65(e) of the Evidence Act. Not only this, but also Section 65(a) of Evidence Act states that secondary evidence relating to document may be given when original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or any person out of reach of, or not subject to the process of the court, or of any person legally bound to produce, it and when, after the 9 notice mentioned in Section 66, such person does not produce it. In the instant case, the contention of the learned counsel for the respondent-plaintiff is that under Ext.2 some portion of the ancestral property of Sundar Bhue has been sold to Saraswati Bhuyan who is not a party to this case. She is also not to subject to process of the Court as no claim is made against her and she being transferee in possession of original document. Therefore, the original document being not produced under such circumstances, the certified copy is tendered by the plaintiff to rely upon the same to show that she was arrayed as daughter of Sundar Bhue. Now the question arises if at all the plaintiff and defendant are the daughters by proving document vide Ext.2.
18. The document vide Ext.2 shows that a rayati land of Sundar Bhue and the two daughters are only co-transferors along with Sundar Bhue. It is true that Sundar Bhue could have transferred the land under Ext.2 alone, but adding his two daughters cannot be said a stage manage affair to lay a claim in the suit filed in 2005 after 19 years of the execution of such registered sale deed. On the other hand, such document contains whether there is transfer or not depending upon the attending circumstances. The contents of the document vide Ext.2 are admitted by the plaintiff who is one of the executants of the document. She states as P.W.2 in her cross- examination that she has got part of the consideration amount after the registered sale deed being executed under Ext.2. There is nothing to disbelieve her testimony. So, the contents of the sale deed 10 not only admitted by P.W.2, but also truth in the contents are also proved by her.
19. When P.W.1, the Record Keeper of the District Sub- Registrar Office, Sambalpur proved the certified copy of the Ext.2, it was not objected by the defendant. It is reported in the case of Dayamathi Bai (Smt) v. K.M. Shaffi (supra), where Their Lordships observed at paragraph-14 as follows:-
" 14. To the same effect is the judgment of the Privy Council in the case of Gopal Das v. Thakurji reported in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, p. 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage."
20. With due regard to the aforesaid decision in the instant case when Ext.2 is introduced as secondary evidence and no objection made in the trial court, any objection to the said document at this stage is not permissible. The contention of the learned counsel for the appellant is that Section 67 of the Evidence Act has not been complied in this case to bring the registered sale deed into evidence. Rival submission is made by the learned counsel for the respondent to the effect that when Ext.2 is admitted in evidence as secondary 11 evidence for the reasons complying Section 65 of the Evidence Act, compliance of Section 67 of the Evidence Act does not arise. The Court find force with the submission of the learned counsel for the respondent.
21. Mr. Dash, learned counsel for the appellant relying on the decision of the learned Single Judge of Bombay High Court in the case of Om Prakash Berlia and another v. Unit Trust of India and others (supra), submitted that the certified copy of the document only proves the statement made therein, but not the correctness thereof. Upon perusal of such judgment, it appears that His Lordship has relied on the decision in the case of Bishwanath Rai v. Sachidanand Singh (supra) and P.C. Purushothama Reddiar v. S. Perumal; A.I.R. 1972 SC 608, but accepted the decision reported in the case of Bishwanath Rai v. Sachhidanand Singh (supra) because of the fact as narrated therein. Before accepting the decision of learned Single Judge of Bombay High Court, it is necessary to go through the decision of the Hon'ble Apex Court cited by the learned Single Judge. In Bishwanath Rai v. Sachhidanand Singh (supra) the Hon'ble Apex Court observed at paragraph-7 in the following manner:-
" xx xx xx xx
7. At one stage in its judgment, the High Court has stated that this letter was not relevant when Swamiji himself was not examined and that, if it had been relevant, the Court would have been inclined to entertain the request for examination of Swamiji as a Court witness. Great reliance was placed by learned Counsel on this view expressed by the High Court in its judgment. It appears to 12 us that the High Court was quite wrong in holding that this letter was not relevant. The contents of this letter were proved by the evidence of Ram Chandra Sharma who stated that he knew the handwriting of Swamiji with whom he had in correspondence even earlier. His evidence, thus, was sufficient to prove that Swamiji wrote this letter to Ram Chandra Sharma, and that the statements contained in the letter were made by Swamiji himself. It is true that, in the absence of examination of Swamiji, the correctness of those statements cannot be held to be proved. Thus, the evidence of Ram Chandra Shrama proves the contents of the letter, but not the correctness of those contents. The letter was, therefore, admissible to the extent to which the fact that Swamiji wrote such a letter to Ram Chandra Sharma with its contents has bearing on the issues involved in this case. To that extent, the letter was relevant and admissible. However, we are not inclined to agree with the High Court that, if this letter is relevant and admissible, the Court should have examined Swamiji as its own witness. The relevancy or admissibility was judged by the Court at the last stage of delivering the judgment. There was no justification for the appellant to wait for the judgment and not examine Swamiji as his own witness as held by us above. In the circumstances, this letter has to be taken into account to the extent just indicated by us above."
22. With due regard to the aforesaid decision reference was made to letter written by Swamiji, but Swamiji was not examined in that case. Their Lordships held that the statement of the letter is proved, but correctness is yet to be proved. It is quite obvious that the correctness of the letter was in dispute in that case, but so far as letter is concerned, it has been accepted by Their Lordships having evidentiary value.
23. In the case of P.C. Purushothama Reddiar v. S. Perumal; A.I.R. 1972 SC 608, Their Lordships observed at paragraphs 18, 19 and 20 as follows:-
13
"18. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility- see Bhagat Ram v. Khetu Ram AIR 1929 PC 110.
19. It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
Xx xx xx
20. The first part of s. 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty."
24. With due regard to the said decision it is clear that where a document has been marked without any objection, same cannot be objected in later stage. Moreover, once a document is properly admitted, the contents of the document are also admitted in evidence, though those contents may not be conclusive evidence. Moreover, it is held that the document maintained in due discharge of duty is admissible in evidence under Section 35 of the Evidence Act.
25. After going through both the decisions it is clear that the contents of the document if at all found to have been proved as per the provisions of the Evidence Act, the same are admissible as a whole. The truth with contents may be proved by adducing formal proof, but that does not mean that the document itself does not 14 convey any meaning particularly when it is not objected at the stage of trial and the same cannot be objected in later stage. The learned Single Judge of Bombay High Court has accepted the decision of the Hon'ble Apex Court in the case of Bishwanath Rai v. Sachhidanand Singh (supra) which was fitting to that case. But the said fact is not here. Therefore, the contention of the learned counsel for the appellant is quite distinguished and not relevant in the fact of case at hand. On the other hand relying upon the decision of the Hon'ble Apex Court in P.C. Purushothama Reddiar v. S. Perumal (supra) as stated above, when Ext.2 is proved as secondary evidence as per discussion made in the above paragraphs and same has not been objected to by the defendant at the time of trial, it is not possible to discard Ext.2.
26. On perusal of Ext.2 it appears that Sundar Bhue has transferred certain land to Saraswati Bhuyan along with the plaintiff and defendant arraying them as his daughters. The conduct of Sundar Bhue who is not alive is quite relevant and admissible to show the truth in the correctness of the document vide Ext.2. On the other hand in Ext.2 conveys the status of the plaintiff and defendant as daughters of Sundar Bhue. The view of the learned first appellate court in this regard is agreed with.
27. The next contention of the learned counsel for the appellant is that the status in the mutation R.O.R. cannot be relied on to prove that the plaintiff is the daughter of Sundar Bhue. Here, it is 15 admitted by both parties that after death of Sundar Bhue the defendant has got her name mutated in respected of schedule-A land. When the plaintiff came to know that the entire schedule-A land has been recorded in the name of the defendant, she filed appeal vide Mutation Appeal No. 3 of 2003 under Ext.4. The learned Sub- Collector remanded the matter and finally vide Ext.5 the learned Tahasildar allowed the application of the plaintiff and directed to add her name along with the name of the defendant in respect of schedule-A land. Of course, the defendant denies about the result of the appeal and the result of the later order of the Tahasildar. Since Exts.4 and 5 show that she and her advocate were very much present and were heard, ignorance of the defendant cannot a ground to discard the document. Hence, the R.O.R. is admittedly prepared in favour of the plaintiff and defendant. It is true that the R.O.R. does not create or extinguish right, title and interest of the party, but the presumption thereto is always attached. On the other hand, learned counsel for the respondent submitted that the presumption of the Mutation R.O.R. is correct until the presumption is rebutted. There is no dispute on such settled law. Since Exts.4 and 5 stand in favour of the plaintiff, the plaintiff is found to have proved the fact that schedule-A land stands recorded in the names of the plaintiff and defendant jointly.
28. Not only the above documentary evidence adduced by the plaintiff, but also the oral evidence adduced by the plaintiff who was examined as P.W.2 shows that she is the daughter of Sundar 16 Bhue and defendant is her sister. She has been vividly cross- examined by the defence, but she has made it clear that Sundar Bhue having 4 to 5 acres of land besides the suit land and sold the 4 to 5 acres of land to others. Thus, she has proved through her oral evidence about her status and execution of the original sale deed whose certified copy is Ext.2. On the whole, the plaintiff has proved through documentary evidence and oral evidence that not only she is the daughter of Sundar Bhue, but also sister of defendant and both of them stood recorded jointly in respect of the schedule-A land.
29. Learned counsel for the appellant strenuously urged that Section 50 of the Evidence Act has not been utilized by the plaintiff to prove her status. Section 50 of the Evidence Act is reproduced below for reference:-
"50- Opinion on relationship, when relevant.--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, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."
30. The aforesaid provision is clear to show that Section 50 of the Evidence Act deals only with the relevancy of the fact and the manner in which this relevant facts have to be proved in Section 60. It is submitted by learned counsel for the respondent that the evidence of relationship can be considered by oral evidence besides any documentary evidence on the point. The contentions are 17 required to be considered. It appears that Ext.2 being certified copy of the document executed by Sundar Bhue admitting the plaintiff and the defendant as his daughters is clear conduct by documentary evidence is a relevant fact under Section 50 of the Evidence Act to prove the relationship of the plaintiff and the defendant with Sundar Bhue. The statement of Sundar Bhue in Ext.2 is quite admissible under Section 32(5) or (6) of the Evidence Act, because he is dead, has thus opined the fact of relationship stated therein. So non- examination of any witness giving opinion as to relationship by the plaintiff besides Ext.2 and her evidence (P.W.2) is not fatal to discard the applicability of Section 50 of the Evidence Act. It is reiterated that the plaintiff is able to prove the relationship. Moreover, learned counsel for the respondent contended that the evidence of D.W.1 can be utilized not as a weakness in the case of plaintiff, but fact has been admitted by the defendant. In examination-in-chief D.W.1 has clearly stated that her father was treating the plaintiff as his daughter and he was under the clutches of the plaintiff. The fact admitted by the defendant is also relevant in favour of the plaintiff.
31. Thus, from the aforesaid discussion it is clear that the assertion of the plaintiff that she is the daughter of Sundar Bhue is proved by her by documentary and oral evidence.
32. So far as evidence of defendant is concerned to discharge her own onus, she has not adduced any documentary evidence. D.W.1 is defendant herself and D.Ws.2 and 3 are villagers. It is the defendant to prove that she is the only daughter to succeed 18 the property of Sundar Bhue. In her examination-in-chief at paragraph-1 admitted that her father behaving the plaintiff as his daughter and her father was under the clutches of the plaintiff. If at all the father is staying with the plaintiff and behaving as his daughter, it is sufficient to note that she being a daughter of Sundar Bhue has given clear opinion under Section 50 of the Evidence Act that the plaintiff is also the daughter of Sundar Bhue. At the same time she denied the fact that the plaintiff is the daughter of her father. In cross- examination she admitted that she has no document to show that the plaintiff is not the own daughter of her father. Also she expressed her ignorance that if any document vide Ext.2 executed by her father, by her and her sister by selling land to Saraswati Bhuyan. Her ignorance is not the clear denial. This is evasive denial which is taken as an evidence of may be or may not be. On the other hand, her evidence is not clear enough and cogent to show that she has not executed any document along with her father and the plaintiff vide Ext. 2.
33. On further analysis of evidence of D.W.1, it appears that due to financial crisis of her husband, her father gave schedule- A property and delivered possession to her and orally told that she has become the exclusive owner of the property. Any sort of transfer of property whether by sale or gift should be followed with document, but no such document is produced.On the other hand, she expressed her ignorance of Mutation Appeal and final order of the Tahasildar. If at all she has got ownership and possession over the suit property, she could have challenged the order of the Tahasildr which was very 19 much passed before the suit is filed. She also does not prove any rent receipt or land revenue to prove her exclusive ownership or possession thereon. Learned counsel for the appellant submitted that she has got the property by gift. Learned counsel for the respondent submitted that if she got gift, she cannot blow hot and cold at a time by stating that she being sole successor of Sundar Bhue succeeding to schedule-A. However, the evidence of D.W.1 is not clear, cogent and consistent to show that she is the sole owner of the schedule-A land. Thus, she has failed to rebut the presumption arising out of the R.O.R. recorded jointly in favour of the plaintiff and defendant.
34. D.W.2 revealed that he is staying at Dixitpali and not in the village of D.W.1. He has no knowledge about the property of Sundar Bhue. Similarly, D.W.3 has no knowledge about the suit land. So, the evidence of D.Ws.2 and 3 are not helping the defendant to discharge the onus. Thus, defendant-appellant has failed to prove her onus.
35. Now balancing the evidence of both parties, it appears that the plaintiff has been able to discharge the onus to prove that she is the daughter of Sundar Bhue while the defendant is also another daughter of Sundar Bhue. The defendant has failed to prove that the plaintiff is not the daughter of Sundar Bhue but she is the only daughter of Sundar Bhue. On the other hand the contention of the learned counsel for the appellant fails, but the contention of the learned counsel for the respondent is accepted. The Court agree with the view taken by the learned courts below. The substantial questions 20 of law as raised above are answered through the discussion made in the aforesaid paragraphs.
36. In the result, the judgment and decree passed by the learned District Judge, Smbalpur affirming the judgment and decree of the learned Civil Judge (Senior Division), Sambalpur is not interfered with being same legal and proper. Hence, the Second Appeal stands dismissed, but in the circumstances without any cost as the respective parties are to bear their own cost.
The L.C.R. be returned forthwith.
.
Dr. D.P. Choudhury, J Orissa High Court, Cuttack Dated the 19th June, 2018/DNP 21