Orissa High Court
Hrudanand Sahoo vs Sri Sri Ananta Gopal Jew Bije on 2 September, 2021
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
RSA NO.117 OF 2014
From the judgment and decree dated 21.01.2014 and 03.02.2014
respectively passed by the learned Additional District Judge,
Dhenkanal in RFA No.37 of 2011 (01 of 2014).
Hrudanand Sahoo ::: Appellant
-versus-
Sri Sri Ananta Gopal Jew Bije
& Two Others. ::: Respondents
Appeared in this case by Video Conferencing Mode:
For Appellant - M/s. Chittaranjan Pattnaik,
S.Ch. Padhi & Bidisha Sahoo,
Advocates.
For Respondents - None
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING :: 29.07.2021 & JUDGMENT ::12.8.2021
D.Dash, J. The Appellant, by filing this Appeal, under section 100 of the
Code of Civil Procedure (for short, 'the Code') has assailed the
judgment and decree passed by the learned Additional District Judge,
Dhenkanal in RFA No.34/11 (01 of 2014).
The Appellant as the Plaintiff had filed the Civil Suit No.57 of
2008 in the Court of learned Civil Judge (Senior Division),
Kamakhyanagar, arraigning the Respondents as the Defendants. The
suit is for declaration that the Registered Gift Deed dated 22.02.2001
executed in favour of the Respondents No.1 (Defendant No.1) is null
and void; with further relief of mandatory injunction for demolition of
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a thatched house being so constructed by Respondent No.1
(Defendant No.1) and recovery of possession. The suit having
decreed granting all the reliefs, the Respondent No.2 filed the Appeal
under Section-96 of the Code. The First Appellate Court allowed the
Appeal in setting aside the judgment and decree passed by the Trial
Court. The Second Appeal has come to be filed by the Plaintiff who
having been successful, next has also been unsuccessful before the
First Appellate Court.
2. For the sake of convenience, in order to avoid confusion and
bring in clarity, the parties hereinafter have been referred to, as they
have been arraigned in the Trial Court.
3. a) The Plaintiff's case is that the property as described in the
schedule of the plaint stood recorded in the name of Late Satrughana
Sahoo. After death of Satrughana, his four sons and three daughters
succeeded to his property. Although they were separate in mess, yet
were joint in property. Plaintiff claims to be the Karta of the said joint
family property. The suit property is situated on the side of the road
and that being developed from time to time stand converted to
homestead.
It is stated that Santosh Kumar Dash, so called Marfatdar of
Defendant No.1, Deity fraudulently managed to obtain the Gift deed
in respect of the suit property from the Plaintiff. It is further stated
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that said Santosh Kumar Dash had fraudulently managed and
succeeded to have the land in question so mutated vide Mutation Case
No.1431 of 2001 in consonance with the said registered Gift deed.
The Plaintiff claims that he has no power or the authority to execute a
deed of gift without consent of other co-sharers so as to prejudice
them in any manner. The Defendant No.1 said to have put up a
thatched house over the suit property. With all such pleadings, the
Plaintiff filed the suit claiming the reliefs as already stated.
4. The Defendant No. 2, contested the suit by filing written
statement. He claimed himself to be the Marfatdar of Defendant No.1
instead of Santosh Kumar Dash. It is stated that Defendant No.1,
Deity having an Ashram which is being managed by the Managing
Committee represented through him. He asserts that the Plaintiff had
executed the Gift deed in favour of Defendant No.1 in proper state of
mind and to his full knowledge for establishment of a permanent
Ashram of the Deity over there. It is his case that the suit at the
instance of the Plaintiff is a collusive one with the erstwhile
Marfatdar of the Deity namely, Santosh Kumar Dash. The possession
of the suit property is claimed by the Deity represented by the
Managing Committee.
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5. The Trial Court on the above pleadings, framing eight issues
appears to have decided Issue No.4 & 5 touching the claim and
counter claim of the Plaintiff and Defendant No.2.
Upon analysis of the evidence and their evaluation, the answers
having been given in favour of the Plaintiff. It has been held that the
Plaintiff is entitled to a declaration that the registered Gift deed dated
20.02.2001 executed by him in favour of the Defendant No.1 and
accordingly, the consequential ROR has been held null and void. It
has been held that the Gift deed has been obtained from the Plaintiff
by practicing fraud. The fate of the suit hinges upon the decision on
this issue. Accordingly, the suit stood decreed.
The lower Appellate Court has reversed the finding of the Trial
Court that the registered Gift deed is void which has practically led to
non-suit the Plaintiff.
Although no such substantial question of law which according
to the Appellant (Plaintiff) arises for being answered in this Appeal
has been stated mentioned in the memorandum of appeal, during
hearing learned counsel for the Appellant submitted that the lower
Appellate Court had failed to appreciate the evidence on record in
their proper perspective; in ultimately rendering the finding that no
ground has been made out for declaring the said registered deed of
gift as void.
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It is further submitted that when the Trial Court on proper
analysis of evidence on record and upon their evaluation has found
the gift deed to have been obtained from the Plaintiff by fraud, the
lower Appellate Court has in a casual manner gone to differ with the
same and that to without assigning any reason as tenable in law.
According to him, the finding of the lower Appellate Court in
ultimately disagreeing with the Trial Court in setting aside the
registered deed of gift as void is suffers from the vice of perversity
and thus cannot sustain. With all these, he urges for admission of this
Appeal so as to answer above substantial questions of law which
according to him arise in the case.
5. Keeping in view the submission made, I have perused the
judgment passed by the Trial Court as well as the First Appellate
Court.
Coming to the main question as to authority of the donor in
executing the deed of gift touching upon the prayer of the Plaintiff for
its declaration as void, it would be proper to have glance at the
averments taken in that regard in the plaint. The Plaintiff at
paragraph-6 has stated that Santosh Kumar Dash, the then Marfatdar
of Defendant No.1-Deity had fraudulently obtained the deed of gift. It
has further been said that the signature in the Gift deed is forged one.
These pleadings appear to be wholly deficient so as to meet the
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requirement of the provision of Order-6, Rule-4 of the Code. The
Plaintiff has not set forth the particulars of fraud as so required. When
it is stated that Gift deed was fraudulently obtained, it has not been so
pleaded that it was not so executed by him nor explained further.
However, the Plaintiff in his evidence has said that he has never
executed the gift of deed. The given pleadings and evidence are not
enough to conclude that the deed of gift which is a registered one is a
forged one.
Next coming to question of its execution by the Plaintiff
without consent of other co-sharers, it seen that here the Plaintiff
himself executed the registered deed of gift which has been registered
and that thus carries the legal presumption as to its due execution with
his full knowledge which has not rebutted through clear, cogent and
acceptable evidence. As against the assertion that it is invalid since
other co-sharers had not consented to it, it is seen that co-share has
come forward to question this Gift deed and they have also not been
made parties to the suit wherein the Plaintiff who is the donor under
the Registered Gift Deed is the suitor. For the first time, he states that
being the Karta of the family, he had no authority to execute the Gift
deed without the consent of others which contradicts his own conduct
in executing the gift deed and the assertions made therein and he is
also estopped to challenge the gift on that very ground of lack of
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authority on his part. The gift has been accepted by the donee as
would be evident from the fact that the land is under their possession
with thatched house standing over there, which the Plaintiff is not
stating to have been when so put up. Although, it is said that it has
been so done authorizedly, the evidence on that score is not sufficient
to conclude that the donor despite of the execution of the deed of gift
had never parted with the possession over the property so gifted and
had remained in possession.
For the aforesaid discussion and reasons, the submission of the
learned counsel for the Appellant are not accepted.
6. In the result, the Appeal stands dismissed. No order as to cost.
.......................
(D. Dash), Judge.
Narayan