Orissa High Court
Gopabandhu Das And Ors. vs Maheswar Mundian And Ors. on 24 February, 1998
Equivalent citations: AIR1998ORI131, AIR 1998 ORISSA 131, (1998) 3 CURCC 333 (1998) 86 CUT LT 35, (1998) 86 CUT LT 35
JUDGMENT R.K. Dash, J.
1. The unsuccessful plaintiffs are in appeal against the confirming judgment of the learned Subordinate Judge, Karanjia (presently designated as Civil Judge, Senior Division) in Title Appeal No. 2 of 1982.
2. One Nityananda Das had initially filed the suit for declaration of right, title and interest and for recovery of possession of the lands described in Schedule-A of the plaint. During pendency of the suit, the plaintiff died and upon his death his sons were substituted as plaintiffs. For the sake of convenience Nityanands Das would be referred to as the plaintiff in the present appeal.
3. Plaintiff's case, in brief, is that Indramani Mundian and Rangu Mundian were real brothers. The lands described in lot Nos. 1 and 2 of sched-ule-4 of the plaint originally belonged to Karuna Jena of Khuntiposi who transferred the same to Govinda Mundian, father of Indramani and Ranga, on 19-8-1962. Both Indramani and Rangu sold away lot No. 1 to the plaintiff for a consideration of Rs. 1,000/- by a registered sale deed dated 11-2-1971-. Subsequently Rangu alone sold lot No. 2 to the plaintiff for a consideration of Rs. 140/- by a registered sale deed dated 20-12-1971. Having acquired the aforesaid lands by virtue of purchase, the plaintiff remained in possession by constructing a house on a portion thereof. Alternatively the plaintiff claimed to have perfected title by prescription to the said lands by being in possession for more than the statutory period to the knowledge of the defendants. In the current settlement the whole of the suit lands stood recorded in the name of the plaintiff as described in Schedule B of the plaintiff. The village of the plaintiff being at a distance of 64 Kms. from the suit lands it was difficult on his part to personally cultivate it. He, therefore, entrusted to one Daitari Mahanla of village Khuntaposi to look after the cultivation. The defendants in order to dispossess the plaintiff trespassed into a portion of the suit lands described in Schedule C of the plaint and sowed paddy on 14-6-1987. This led the plaintiff to approach the local police whereupon a criminal case was initialed against them. Simultaneously a proceeding under Section 144 Cr.P.C. was also initiated. Ultimately the plaintiff approached the learned Munsif, Karanjia by filing the present suit seeking necessary reliefs as aforesaid.
3A. Defendants 1 to 5 filed joint written statement denying the plaintiffs case. They pleaded, inter alia, that the suit lands were their joint family properties in which they and their fathers had equal shares. The family had no legal necessity at the relevant time and the sales effected by their fathers in respect thereof are not binding on them. They have further urged that upon the death of their fathers, they are all along in possession of the suit lands. They, therefore, prayed that the plaintiff having no right, title or interest in the suit lands is not entitled to the reliefs as prayed for.
4. In view of the above pleadings, two questions that arose for consideration before the trial Court were :--
(i) Whether there was any legal necessity of the joint family to alienate the suit land by Indramani and Rangu, fathers of defendants 1 to 5? And
(ii) Alternatively, whether the plaintiff acquired title to the suit land by prescription?
5. So far as question No. (i) is concerned, learned trial court on a scrutiny of the evidence adduced by the parties, held that the plaintiff utterly failed to prove that the joint family consisting of Indramani, Rangu and the defendants had legal necessity to alienate the suit lands under Exts. 3 and 4 and therefore, the transfers being not valid and genuine, did not bind the interest of the defendants.
6. Coming to question No. (ii), at the outset it may be stated that the plaintiff though asserted in his pleading that he has perfected his title in respect of the suit lands by being in possession for more than the statutory period, but no issue to that effect was framed. However, the learned trial court on an appraisal of the evidence found possession of the suit lands with plaintiff but negatived his claim of acquisition of title by prescription. Mainly on these findings the trial court declined to grant the reliefs as sought for by the plaintiff and dismissed the suit. On appeal the learned Subordinate Judge while agreeing with the trial court's finding regarding absence of legal necessity of the joint family to alienate the suit land, reversed the finding of possession recorded in favour of the plaintiff. He made a thread bare discussion of the evidence adduced by the plaintiff and held that the plaintiff was never in possession of the suit land. Having held thus, he affirmed the decision of the trial court and dismissed the appeal.
7. Learned counsel for the plaintiff has sought to challenge the findings of the lower appellate Court on the questions of legal necessity as also possession. I am afraid while exercising second appellate jurisdiction under Section 100 CPC, it is not open to this Court to re appreciate or reassess the evidence, however gross the error may seem to be. Jurisdiction of the Court in second appeal being confined to substantial questions of law, the finding of fact is not open to challenge even if the appreciation of evidence is palpably wrong. Sufficiency or adequacy of evidence to support a finding of fact is a matter of decision of the Court of fact and it cannot be attacked in second appeal. However, it has been judicially determined that in the following cases finding of fact may be interfered with in second appeal namely:
(1) Where there is no evidence at all on which finding of fact can be based.
(2) Where findings of fact have been recorded by ignoring important and relevant evidence having considerable bearing on the issue or by taking into consideration extraneous facts.
(3) Where point for determination is one of mixed questions of fact and law.
(4) Where construction of document of title or document which is the foundation of the rights of the parties is involved.
(5) Question of admissibility of evidence.
(6) Where ultimate finding of fact by the first appellate Court is as a result of wrong placing of onus.
Where two views are possible to be taken from the available evidence, it is not open to the second appellate court to set aside the findings because the other view appear to be more appealing. In the present case, counsel for the plaintiff has not been able to show that the findings recorded by the first appellate court on the above two questions are perverse. It may be that those findings are erroneous but however grossly erroneous those may be, this Court is precluded from interfering with the findings of fact in exercise of power under Section 100, CPC. On a scrutiny of the judgment and findings of the learned first appellate Court, I am of the view that the findings on those two vital questions were reached on proper appreciation of evidence and jurisdiction of this Court in second appeal being very limited, I am not inclined to interfere with the same.
8-9. Undisputedly the suit lands were the joint family properties of Indramani and Rangu and their sons defendants 1 to 5. Defendants' case is that at the time when transfer was effected under sale deeds Exts. 3 and 4 by their fathers, the joint family had no legal necessity and therefore, those deeds were not binding against their interest. The manager of a joint Hindu family has power to alienate for value the joint family property so as to bind the interest both of minor and adult coparceners in the property, provided the alienation is made for legal necessity or benefit of the estate. In the case of a Hindu father, however, he has some special power to alienate coparcenery property which no other coparcener has. It is settled law that where the alienation of joint family property is not approved by the sons, the burden is on the alienee to establish that the same was supported by legal necessity or benefit of the family or that he made reasonable enquiry about existence of such necessity (see Kamaraswami Mudaliar v. Rajamanikkam Udayar, AIR 1966 Kerala 266 and Radhakrishna Das v. Kaluram, (1963) 1 SCR648 : (AIR 1967 SC 574). In the case in hand as appears from the recitals in the sale deeds (Exts. 3 and 4), the necessities for which the suit lands were alienated were for purchase of seeds and for repayment of co-operative loan. In order to prove such necessities, no evidence worth the name was adduced by the plaintiff to discharge the burden. It needs no mention that the recitals about legal necessity in a deed of sale are not sufficient to discharge the burden that lies upon the alienee. In this context reference may be made to a decision of the Apex Court in the case of Rani v. Sant Bala Debnath, AIR 1971 SC 1028, where the Court observed :
"Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to recitals varies according to circumstances..........."
Bearing in mind the aforesaid decision of the Apex Court and there being no evidence whatsoever adduced by the plaintiff, I would agree with the findings and the ultimate conclusion of the trial Court affirmed by the appellate Court that the sale deeds Exts. 3 and 4 executed by the fathers of defendants 1 to 5 were not supported by any legal necessity.
10. Coming to the next question as to whether the plaintiff has alternatively acquired title by prescription, at the outset it may be stated that the plaintiffs pleading in that regard is cryptic in nature; inasmuch as all the necessary ingredients of adverse possession have not been pleaded. Besides, the learned appellate Court on a discussion of the evidence adduced by the plaintiff, has disbelieved the fact of possession of the suit lands by the plaintiff and it being a finding of fact, this Court sitting in second appeal is precluded to re-assess that evidence and alter the said finding.
11. In view of discussions made above, I find no merit in the second appeal which is accordingly dismissed. No costs.