Orissa High Court
Baishnab Charan Swain vs Pramod Kumar Swain & Others on 15 April, 2024
Author: D. Dash
Bench: D. Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.195 of 2018
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and decree dated 31.01.2018 &
23.02.2018 respectively, passed by the learned Additional District Judge,
Anandapur in R.F.A. No.08/14 of 2017-13, setting aside the judgment and
decree dated 28.02.2013 and 03.04.2013 respectively passed by the learned
Civil Judge, (Senior Division), Anandapur in Civil Suit No.83 of 2001.
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Baishnab Charan Swain .... Appellant
-versus-
Pramod Kumar Swain & Others. .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- M/s. Satyabadi Mantry,
A. K. Sharma, Advocates.
For Respondents - -------
CORAM:
MR. JUSTICE D. DASH
Date of Hearing : 06.04.2024 :: Date of Judgment: 15.04.2024
D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree passed by the learned Additional District Judge, Anandapur in R.F.A. No.08/14 of 2017-13.
Page 1 of 13 R.S.A. No.195 of 2018The Respondent No.1 as the Plaintiff had filed the suit (Civil Suit No.83 of 2001) in the court of learned Civil Judge, Senior Division, Anandapur for declaration that the sale deeds bearing no.1587 and 1588 are illegal, inoperative and not binding upon the interest of the Plaintiffs and his brother with further relief of permanent injunction against the Appellant (Defendant No.5) and the Respondent No. 2-14 (Defendant No.2-14). The suit stood dismissed.
So, the Respondent No.1 being the unsuccessful Plaintiff and thus non- suited, had carried an Appeal under section 96 of the Code. The Appeal has been allowed in declaring the above two sale deeds in respect of schedule A land to be valid only to the extent of Ac.0.03 decimal and Ac.0.09 decimal respectively. It has been further declared that the Respondent No.1 (Plaintiff) and the Appellant (Defendant No.1) and his three brother Respondent No.2-4 (Defendant No.2-4) to be the exclusive owners of the land in schedule B. Consequently, the prayer for permanent injunction in respect of schedule A land has been refused whereas the Respondent No.5-12 (Defendant No.5-12) have been permanently restrained from creating any sort of disturbance in the peaceful possession of the Respondent No.1 (Plaintiff), the Appellant (Defendant No.1) along with the Respondent No.2-4 (Defendant No.2-4) over schedule B property.
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 Suit.
3. Plaintiff's case is that:- (A) One Krushna Chandra Swain is the common ancestor of Plaintiff and Defendant No.1 to 5 and the deceased Defendant No.12. The Defendant No.5 & 12 represent the branch of Daitari Page 2 of 13 R.S.A. No.195 of 2018 being his son and daughter respectively and the Defendant No.1 to 4 represent the branch of Mahidhar being his sons. The Defendant No.6 is the natural son of Daitari and he being in his childhood days was adopted by Suanti Swain of village Adheidwar and therefore, he had snapped all his ties with the family of the common ancestor namely Krushna Chandra Swain. The members of the two branches of Krushna Swain in view of the dispute coming to surface amongst them during the life time of Rama Swain and Parabasi Swain sometime in the month of April, 1930, separated their properties and they remained in separate mess and estate. Since then each branch is separately enjoying the property, more or less to the extent of their shares in the absence of any regular partition by metes and bounds.
(B) This land in schedule A is the ancestral Gharabari land of the members of the two branches. The land under Hal plot no.450 measuring Ac0.24 decimal however continues to be recorded as agricultural land which is appertains to the recorded Gharabari Plot No.400. Both the branches have 50% share each over Schedule-A property. The land under Hal plot no.400 measuring Ac.0.53 decimal corresponds to Sabik plot no.289 and 290 measuring Ac0.49 decimal & Ac0.05 decimal. Daitari, the father of Defendant No.5 to 12 had sold Ac0.04 decimal of land from out of plot no.289 to one Kiran Bihari Sahoo by registered sale deed dated 29.03.1991, which was subsequently purchased by Mahidhar swain, the father of the Plaintiff orally from Kirtan Sahoo for a consideration of Rs.30,000/-. Out of the rest land of Ac0.49 decimals, Mahidhar and Daitari jointly sold Ac0.37 decimal to the Defendant No.6 by registered sale deed dated 26.7.1974. Thus the branch of Daitari had only Ac0.04 decimal in respect of the land under Hal plot no.400 whereas the branch of the Plaintiff & Defendant No.1 to 4 have Ac0.04 decimal towards their original share and in addition to that they Page 3 of 13 R.S.A. No.195 of 2018 have Ac0.04 decimals of land which they had purchased from Kirtan Sahoo and the total area of land of Plaintiff and Defendant No.1 to 4 comes to Ac0.12 decimal. In that way, the Plaintiff's branch is entitled to 50% share over the land under Plot No.450 whereas the rest 50% goes to Defendant No.5 to 12. Out of the aforesaid land, the State Government has acquired an area of Ac0.08 decimal for construction of Sadang Minor Irrigation Canal in Land Acquisition Case No.1/2000 and that has been utilized for the said purpose.
(C) Schedule B land originally belongs to one Misei Jena of village Brahmanikala and the grandfather of the Plaintiff namely, Jagabandhu Swain got it exclusively in an auction sale and he pursuant to the said purchase, had mutated his name in Mutation Case No.945/66 of 1933-34. Since then, Jagabandhu was in possession of the said land and after his death, his successors that i.e. the Plaintiff and Defendant No.1 to 4 are in exclusive possession and enjoyment to the exclusion of the branch of Daitari. Jagabandhu was working in a transport company in Kolkata. Therefore, the affairs relating to the landed property of the village was being looked after by Daitari. Taking advantage of the absence of Jagabandhu, Daitari could manage to get his name recorded in the Hal Record of Right and also in respect of schedule B land as its owner, although the branch of Daitari had no right over the said property. Said recording is questioned is illegal and erroneous.
(D) The Defendant No.5 illegally executed sale deed in respect of Ac0.08 decimal of land relating to Plot No.400 in favour of Defendant No.7 and the entire Ac0.24 decimal pertaining to Hal plot no.450 in favour of Defendant No.8 to 12 under two registered sale deeds dated 24.09.2001 which are the Page 4 of 13 R.S.A. No.195 of 2018 subject matter of the present suit. It is stated that these sale deeds are without the consideration and not backed by legal necessity. The purchasers being strangers in respect of the undivided dwelling house of the Plaintiff and the Defendant No.5, the sales are not valid. It is further stated that these two sale deeds having been executed and registered during the consolidation operation without prior permission of the consolidation operation are illegal. Since the Defendant No.7 to 11 being armed with these two sale deeds threatened the Plaintiff to trespass over schedule A land and as the Defendant No.5 created disturbance in the suit and enjoyment of the Plaintiff over schedule B land taking advantage of the wrong recording of the land under Hal Record of Right, the present suit has come to be filed.
4. It would be pertinent to mention at this stage that the Defendant No.6 and 12 having died during pendency of the suit, their legal representatives have come on record. Defendant No.13 and 14 being the State and its functionaries, they have been impleaded during pendency of the suit.
In view of the acquisition of Ac.0.08 decimal of land under plot no.450 by the State, the Defendant No.7 to 10 as also Defendant No.5 and Defendant No.2-4 as well as Defendant No.8 and 12 have filed separate written statement. The Defendant No.6 admitted the fact that Gouranga was adopted by Saunti Swain during his childhood days. He has pleaded about the valid purchase of Ac0.37 decimals of land from Mahidhar and Daitari by registered sale deed dated 26.07.1974.
5. The Defendant Nos.2 to 4 have supported the case of the Plaintiff.
6. The Defendant No.5 as well as Defendant No.7-10, who are the real contestant to claim of Plaintiff. The Defendant Nos.7 to 10 confines their Page 5 of 13 R.S.A. No.195 of 2018 case in respect of schedule A property. The Defendant No.5 has supported the case of Defendant No.7 to 10 and has also challenged the claim of the Plaintiff that the recording of schedule B land in the Hal record of right as wrong and erroneous.
7. As per the case of Defendant No.5, the ancestral property between the two branches of Krushna had been partitioned. The two branches are in exclusive possession of separate portions of the property. However, the Record of Right has been prepared in their joint name. It is stated that the dwelling house of Mahidhar is separate from that of Daitari and the two families are strangers to each other. From the time of separation of the land between two branches, which affected them, the Defendant No.5 is in exclusive possession of the property under plot no.450. He was possessing it exclusively till he sold it to Defendant Nos.8 to 11. According to him, being the need of money, he had sold the same and executed the sale deed in favour of Defendant No.7 in respect of Ac0.08 decimal of land from Hal Plot No.400 which he was exclusively enjoying being separate from the members of the branch of Mahidhar. He has stated to have delivered the possession of the land covered under the two sale deed to the purchasers who are in exclusive enjoyment of their respective purchased properties. In spite of the partition affected between the two branches since long, the misunderstanding between them was there. Therefore a document acknowledgment the partition was executed on 31.05.1997 in presence of village gentries. The sale deeds which he (Defendant No.5) executed are legal and valid and title has been conferred upon the Defendant Nos. 7 to 11. The property in schedule B are the joint properties of parties of both the branches and, therefore, the Plaintiff's claim that record of right is erroneous and not acceptable.
Page 6 of 13 R.S.A. No.195 of 20188. The Defendant Nos.7 to 10 in supporting the case of Defendant No.5 have stated that the dwelling house area and agricultural lands of the two branches are well demarcated and there is no connection between the two. According to them, the Defendant No.5 being in need of money for construction of house had sold Ac0.08 decimal of land from Plot No.400 for a consideration of Rs.40,000/- in favour of Defendant No.7 followed by delivery of possession. In that way, being need of money for repayment of the loan he has sold the whole land under plot no.450 which he was in exclusive enjoyment form the time of partition between two branches in favour of Defendant No.8 to 11 for valuable consideration. The purchasers are in possession and enjoyment of the said purchase property. It is therefore stated that the Plaintiff and Defendant Nos.1 to 4 have no right over it. His case is that in spite of separate and exclusive possession, the lands were recorded jointly for which on 31.05.1997, a Memorandum of Partition came into being in presence of the local gentries. The said Memorandum of Partition was between the Defendant No.5 on one hand and the Plaintiff along with Defendant Nos.1 & 2, who are the elder members of the other branch.
9. The Trial Court on the above rival pleadings, framed in total nine issues. Sitting over to answer issue no.6 which relates to the fate of the two sale deeds which is the subject matter of the present suit, upon examination of evidence and their evaluation, those sale deeds were held to be valid to the extent of share of the Defendant No.5 (the vendor of Defendant Nos.7 to 11). Next proceeding to rule upon the issue no.7, which concerns with the recording of the land under Hal Khata No.165 in the name of Daitari Swain, whether valid or not; examining the evidence and going for assessment of the same, the finding has been rendered in saying that the property in schedule B Page 7 of 13 R.S.A. No.195 of 2018 are the exclusive separate properties of the grandfather of the Plaintiff, namely, Jagabandhu and that it is his self-acquired property and not the joint family property which is now in possession of the Plaintiff. It is stated that the Defendant No.5 to 14 had no manner of right, title, interest and possession over the same. Practically, the above answers have led the Trial Court to decree the suit.
10. The Plaintiff being thus non-suited had carried the First Appeal. The First Appellate Court upon examination of the evidence and their evaluation independently at its level as it appears from the judgment has ordered that:-
"The sale deeds no.1587 and 1588 dtd.24.09.2001 in respect of the Schedule-A lands are hereby declared valid to the extent of A0.03 decimals and A0.09 decimals respectively. It is further declared that the plaintiff and the defendant no.1 to 4 are the exclusive owners of the schedule-B land of the plaint. Consequently, the prayer for permanent injunction in respect of schedule-A land is refused whereas the defendant no.5 to 12 are permanently restrained from creating any sort of disturbance in the possession of the plaintiff and the defendants no.1 to 4 over schedule-B properties. Accordingly, the suit of the plaintiff is decreed in part. Resultantly, the appeal is allowed and the judgment dtd.28.02.2013 and decree dtd.12.03.2013, passed by the learned Civil Judge (Sr. Division), Anandapur is set aside. No order is passed as to cost of the proceeding."
Hence the present Second Appeal.
11. Learned counsel for the Appellant submitted that the Courts below have omitted to read the provision of section 3 of the OCH & PFL Act that when the consolidation operation notification had already been published and operation was going on, the sales ought to have been held to be invalid. He further submitted that in view of the provision contained in section 51 of the OCH & PFL Act, the Civil Courts was having no jurisdiction to entertain the Page 8 of 13 R.S.A. No.195 of 2018 suit. He, therefore, urged for admission of this appeal to answer the above as the substantial questions of law.
12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.
13. The parties are not in dispute as regards their interse relationship and to be the descendant of common ancestor of Krushna Swain. There is also no dispute on the factum of adoption of Defendant No.6. It is also not in dispute that the land under Hal Plot No.400 measuring Ac0.53 decimal is the Gharabari land of plaintiff and Defendant No.1 to 5 which corresponds to sabik plot no.289 and 290. As per the pleading and evidence, the two branches of Krushna Swain are separate in mess and property and so also in respect of the homestead land. When the plaintiffs claim that plot no.450 measuring Ac0.24 decimal is part of dwelling house area being an appurtenant to the above noted Ac0.53 decimal, the same is seriously disputed by the contesting Defendants. There is no denial of the fact that out of this Ac0.24 decimal under plot no.240, the State Government has acquired Ac0.08 decimal for laying canal and that land is no more in existence to form the subject matter of the suit. The Plaintiff has included schedule B land in the plaint claiming that the same is in exclusive property of his grandfather, and therefore, the entry of the name of father of the Defendant No.5 in the ROR is said to be erroneous. Evidence on record reveal that the Hal Plot Nos.354 (Ac.0.32 decimals) and 393 (Ac.0.29 decimals) correspond to sabik Plot No.467 (Ac.0.33 decimals) and 519 (Ac.0.26 decimals) which is evident from the plot index Ext.9. The plaint case is that the same has been wrongly recorded in the name of his father Defendant No.5, which is denied by Defendant No.5. The Plaintiff has Page 9 of 13 R.S.A. No.195 of 2018 proved the documents Exts.7, 8, 9 and 10 to 10/G. The Defendant No.5 has, however, not tendered any evidence except proving the document Ext.8 that he is the co-owner of schedule B property. The Trial Court had come to a conclusion that Hal RoR Khata No.165 recorded in the name of Daitari is not valid and erroneous. The Plaintiff's claim over schedule B land has thus been accepted by the Trial Court. This finding has not been questioned by Defendant No.5 or Defendant No.12 in the First Appeal by filing any cross objection or cross-appeal. So that finding of the trial court having attained its finality, it has been rightly held by First Appellate Court that the Plaintiff and the Defendant Nos.1 to 4 are the exclusive owners of schedule-'B' properties and that the Defendant Nos.5 and 12 have no right and interest over the same.
In that view of the matter and as no material surfaces to negate the view, the First Appellate Court having said that the Trial Court ought to have decreed the suit in part and at least in favour of the Plaintiff as there is no ground to decline that relief.
14. Schedule A properties consist of two separate Hal plots. It is also not in dispute that Hal plot no.400 corresponds to sabik plot no.289 and 290 whereas Hal Plot No.450 corresponds to sabik plot no.304 as evident from the plot index Ext.3. The sabik RoR in respect of schedule A land under Ext.1 shows the recording in the name of Parabasi Swain, the grandfather of Defendant No.5 and Rama Swain, the grandfather of the Plaintiff and the Defendant Nos.1 to 4 as the co-owners. The land under plot no.289 is Goda land and measures Ac0.49 decimal whereas plot no.290 is recorded as Ghara Agana measuring Ac0.84 decimal.
Page 10 of 13 R.S.A. No.195 of 2018The oral evidence is overwhelming on the score that the two branches by Parabasi and Rama were separate both in mess and estate during their life time. Therefore, the shares of each branch over schedule A property comes to 50% and that includes plot no.304 corresponding to Hal Plot No.450. The First Appellate Court thus upon detail calculation has rightly concluded that the sale deed Ext.A-2 which has been executed by Defendant No.5 is in excess of his share.
The finding of the First Appellate Court that Ext.A-2 is valid to the extent for only Ac0.03 decimal but not Ac0.08 decimal as on the face of the evidence, it has rightly been held that the property in Schedule-A has lost its character as undivided joint family property is not at all assailable.
15. In respect of Plot No.450 of Schedule-A, it having been held that the father of Defendant No.5 had left behind 50% of the same to the extent of Ac0.12 decimal from out of the land under plot no.450 in schedule A, the claim of Defendant No.5 over the entire Ac0.24 decimal on the basis of Memorandum of Partition dated 31.05.1997 Ext.B-1 is unacceptable as has been rightly held by the First Appellate Court, when there is no material on record to substantiate the claim of Defendant No.5 that he was in exclusive possession of entire area of the exclusion of other co-owners when fact remains that there is no pleading as to ouster.
16. The documentary evidence shows that the two branches are in separate enjoyment of the land plot wise to the extent of their share of 50% and from that inference having been drawn that like other plots, the legal heirs of Daitari and Mahidhar were in separate possession of the house of the land under plot no.450 cannot be said to be a faulty one. Basing upon the plain paper document Ext.B-1,the Defendant No.7-11 have purchased the Page 11 of 13 R.S.A. No.195 of 2018 entire plot of land under plot no.450 without ascertaining as to if it was a valid document. Therefore, they have been rightly denied to avail the benefit of principle of equity in the full-fledged partition where the same plot no.450 should fall in the allotment to their favour so as to get the benefit being the bonafide purchaser. The father of Defendant No.5 being entitled to Ac0.12 decimal, the Defendant No.5 is only entitled to Ac0.09 decimal appertaining to this plot. Therefore, the First Appellate Court has committed no error in holding Ext.B-2 to be valid to the extent of Ac0.09 decimal. The First Appellate Court on thread bare discussion of evidence is found to have rightly arrived at a conclusion that the provision of section 44 of the T.P Act would not stand to deprive Defendant Nos.7 to 11 and they are to be held to be co-owners by virtue of their purchase. The findings of the First Appellate Court as have been summed up in Paragraph 27-a to 27-d are thus found to be the outcome of just and proper appreciation of evidence in the backdrop of rival pleadings and the settled position of law.
17. The submission of the learned Counsel for the Appellant that in view of the provisions contained under section 3 of the OCH & PFL Act, the sale deeds are illegal is not acceptable when the intent of the legislature behind such provision is kept in view. The said transactions without permission are prohibited for the reason that those would stand on the way of the consolidation operation to continue and meet its ends. But after the consolidation operation those transactions would certainly binding on the vendors if the land under the transactions remain the same without loosing their identity and in that event the transactions would stand to be fed by the vendors.
Page 12 of 13 R.S.A. No.195 of 201818. In the wake of aforesaid, this Court finds that there arises no substantial question of law for being answered meriting admission of this Appeal.
19. In the result the Appeal stands dismissed. No order as to cost.
(D. Dash), Judge.
Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 22-Apr-2024 18:14:49 Page 13 of 13 R.S.A. No.195 of 2018