Orissa High Court
Kapa Kaleswar Reddy vs S.Lingaraj on 19 June, 2017
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
(A) RSA No.197 of 2005
From the judgment and decree dated 26.2.2005 and 19.3.2005
respectively passed by the learned Ad hoc Addl. District Judge, Fast
Track, Aska in RFA No. 22 of 2004
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Kapa Kaleswar Reddy :::: Appellant
- :: VERSUS :: -
S.Lingaraj :::: Respondent
For Appellant :::: M/s. C.R.Nanda,
N.M.Praharaj, A.S.Das,
R.Singh, P.Das,
Mr.A.P.Bose, S.S.Routray,
Mrs.V.Kar, D.J.Sahoo,
S.K.Dvidedy. S.S.P.Dash
and N.Hota,
advocates
For Respondent :::: M/s. R.P. Mohapatra,
D.Mohapatra and
P.Ch.Sahu, advocates
(B) RSA No.222 of 2005
S.Lingaraj :::: Appellant
- :: VERSUS :: -
Kapa Kaleswar Reddy :::: Respondent.
For Appellant :::: M/s. R.P.Mohapatra,
D.Mohapatra and P.C.
Sahu, advocates.
For Respondent :::: Mr. C.R.Nanda, adv.
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PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
------------------------------------------------------------------------------------------- Date of Hearing::05.05.2017::Date of Judgment: 19.06.2017
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The appeals under Items (A) and (B) arise out of the judgment and decree passed by learned Ad hoc Addl. District Judge, Fast Track, Aska in RFA No. 22 of 2004 which had been filed by the appellant of the appeal under Item (A), the defendant in the original suit. In the said appeal, the respondent of the present appeal under Item (A), the plaintiff of the suit had filed the cross-objection.
The lower appellate court has allowed the appeal in part with modification of the share allotted to the parties and dismissed the cross-objection. Thus the two second appeals; one filed by the plaintiff (B) and the other one by the defendant (A) are before this Court.
2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. Case of the plaintiff is that one K.Rama was the original owner of the property in suit. He died in the year 1952 leaving behind his widow K. Sirimani and only daughter P.Mahalaxmi. The widow K.Sirimani died in the year 1985. P.Mahalaxmi and her // 3 // husband P.Lokanath have four children i.e. three daughters and a son. The plaintiff is the son of a daughter namely, A.Krishna Kumari and the defendant is the only son of P.Mahalaxmi and P.Lokanath. The defendant of the suit is the maternal uncle of the plaintiff i.e. this plaintiff is the defendant's sister's son. It is said by the plaintiff that K.Sirimani had executed a deed of gift in favour of her eldest grand-daughter namely, A.Kamala in respect of land measuring Ac.3.25 cents and since then said land had remained in her possession and enjoyment. Said A.Kamala was issue less. So the plaintiff being the son of the younger sister of A.Kamala namely, A.Krishna Kumari had been kept by A.Kamala as her son since the time of his birth and they had expressed their desire to take him in adoption. However, the husband of A.Kamala died early for which the matter did not further progress. In the year 1987, when A.Kamala wanted to take the plaintiff in adoption, there came serious objection from the agnates of her husband. The matter having stood like that A.Kamala wanted to gift away certain property in favour of her mother and another sister namely, Sabitri so that after some time they in turn would be gifting away the same property to the plaintiff. Pursuant to all these arrangements A.Kamala executed a deed of gift on 29.4.1987 in favour of her mother P.Mahalaxmi and younger sister Sabitri with an // 4 // understanding and their whole hearted agreement that later they would gift away the property to the plaintiff. P.Mahalaxmi, the mother of A.Kamala had expressed before her death in the year 1991 that the property was jointly given to her and Sabitri by Kamala so that they would be gifting away the property to the plaintiff. So it is said that after her death it was decided that there would be an execution of the gift deed by the successors of P.Mahalaxmi and the daughter, Sabitri would also execute another gift deed in favour of the plaintiff. Pursuant to the said decision though father of the defendant went to the office with his daughter, the defendant who is the only son did not accompany. He rather told the father to represent him in the matter. So on 4.5.1991, Lokanath and his daughter executed deed of gift in respect of land measuring Ac.1.95 cents in favour of the plaintiff. The lands finding mention in both the gift deeds were mutated in the name of the plaintiff who is paying the rent. The plaintiff when found the defendant to be strenuously chasing him to forcibly dispossess him from the suit land, the present suit has been filed.
At this stage, it is pertinent to mention that the suit was initially one for permanent injunction and later on by amendment, the plaintiff has been allowed to make a payer for declaration of his right, title and interest.
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4. The defendant while traversing the plaint averments has stated that K.Rama and K.Sirimani were blessed with one son and a daughter. The son having died, the daughter remained as their only child. This defendant further claims that K.Sirimani had adopted him as her son in the year 1973 after the death of her husband K.Rama. His case thus is that he is the adopted son of his maternal grandmother (mother's mother). It is said that the said adoption was made upon due performance of giving and taking ceremony and observation of all other rites as per their caste and custom. The defendant denies the execution gift deed dated 7.5.55 by K.Sirimani. This deed is said to be a nominal one and not acted upon being never so accepted by the donee during lifetime. This defendant has however admitted in the written statement that neither Kamala nor her successors in interest have any claim over the suit property nor they any time in future would so advance. It is stated that Kamala has relinquished her right over such property by receiving a sum of Rs.5,000/- in presence of the Sub-Registrar, Digapahandi. The execution of the gift deeds by Lokanatha and K.Sirimani and Sabitri on 4.5.91 in favour of the plaintiff has been denied. The defendant again advances his claim over the suit property on the basis of a Will said to have been executed by his // 6 // mother Mahalaxmi on 31.12.90. The defendant has further asserted his possession over the suit land.
5. On the above rival pleadings, the trial court framed in total eight issues.
Taking up issue no. 4 as to the claim of the defendant as the adopted son of K.Sirimani upon analysis of evidence, the trial court's answer has been that the defendant has failed to prove the factum of adoption and his claim as the adopted son of K.Rama and K. Sirimani is untenable. While answering this, a finding has been conclusively rendered that the defendant is the son of K.Mahalaxmi. The case projected by the defendant that after the death of K.Rama, Sabitri had accepted him as the adopted son has been negatived.
After that the trial court having gone to decide issue nos. 3 and 5 which concern with the rival claim of right, title, interest and possession of the parties over the suit land which necessarily include the claim on the basis of those deeds of gift etc., the trial court has accepted the deeds of gift vide Exts. 8 and 9 favouring the plaintiff. However since the defendant having a definite share over the property since is not san executant of those deeds of gift, those gifts have been held to be valid only to the extent of the share of the executants. The defendant's claim based on willnama, Ext. A said to have been executed by K.Mahalaxmi in his // 7 // favour has been held to be of no legal effect. In view of all these finally the defendant has been found to be having 1/5th share over the suit property with the rest 4/5th resting with the plaintiff. In view of that, the plaintiff's right, title and interest in respect of 4/5th share on the suit land has been found out.
With all these, the trial court has ultimately passed a preliminary decree holding the entitlement of the plaintiff to the extent of 4/5th share over the suit property and that of the defendant to extent of the 1/5th share.
6. The defendant being aggrieved by the above judgment and decree of the trial court filed the first appeal (RFA No. 22 of 2004). On receipt of notice, the plaintiff also filed a cross-objection.
The defendant before the first appellate court challenged the acceptance of the deeds of gift under Exts. 8 and 9 to the extent as has been said by the trial court and also the rejection of his claim mainly basing upon will, besides the adoption.
First appellate court in view of such rival contention touching the finding on the issues rendered by the trial court as is seen has taken up the exercise of scrutinizing the evidence, both oral and documentary at its end. It has finally recorded its finding in tune of the findings of the trial court in respect of all the issues save and except the finding with regard to the Ext. 8, the purported // 8 // deed of gift executed by Sabitri in favour of the plaintiff. This deed of gift has been held to be having no evidentiary value and to have conveyed no title upon the subject matter described therein unto the plaintiff. In view of that the lower appellate court approving the course adopted by the trial court in passing the preliminary decree holding it to be right has gone for appropriate modification in the assignment of share to the parties. The modification has been-
"that the plaintiff is entitled to 3/4th share (15/20 as mentioned in the judgment and decree of the first appellate court and 1/4th (5/20 as stated by the lower appellate court".
7. Challenging the above judgment and decree both sides have filed the appeals as already stated.
8. The appeal under Item (A) has been admitted on the following substantial questions of law:-
"i. Whether grant of relief of partition suo moto in a suit for permanent injunction simplicitor or any suit for declaration of right and recovery of possession is proper?
ii. Whether the plaintiff-respondent can maintain a suit for partition during the lifetime of his mother A. Krishna Kumari?
// 9 // iii. Whether the appellate court was a legally correct in granting decree for partition of the property basing on the inference contained in Ext. 9?"
9. Though no specific order has been passed reflecting admission of the appeal under Item (B), it has been ordered that it would be heard along with the appeal under Item (A). Therefore, learned counsels for the parties at the outset of hearing fairly contend that both the appeals are to be disposed of by answering the same set up substantial questions of law and no such substantial question of law other than those framed while admitting the appeal under item (A) surfaces for being answered in the appeal under item (B) except the one with regard to non-acceptance of Ext. 8 which will be covered under item no. (iii) as above. This Court also on going through the judgments of the courts below does not find any reason to accord its disagreement with the said submission.
10. Learned counsel for the appellant of the appeal item (A) contends that the original suit being one for permanent injunction and later on when it has been amended at the fag end by insertion of the prayer for declaration of right and recovery of possession where this defendant was not given appropriate opportunity to raise his objection to the said relief by tendering necessary pleading and further leading any evidence if any, the courts below have erred in // 10 // law by going to grant the relief of partition in that very suit. According to him, the provisions of order 7 rule 7 of the Code of Civil Procedure when are not getting attracted for the court to exercise said power, there has been any serious error of law in granting such relief of partition.
It is further contended that in the absence of A.Krishna Kumari, the mother of the plaintiff and when she was not a party thereto, the suit as laid ought to have been dismissed even when the court found that the grant of relief of partition was ideal.
His last contention is that after the lower appellate court discarded Ext.8 for consideration, it has again fallen into error by relying upon Ext. 9 and taking a cue from that it ought not to have proceeded to allot share to the parties in adherence to the same.
11. Learned counsel for the respondent of the appeal under item (A) contends all in favour of the ultimate result of the suit as has been rendered by the lower appellate court having quite fairly submitted that the factual finding recorded by the lower appellate court in discarding Ext. 8 appears to have been passed on detail examination of evidence on record and as a measure of rectification of the defect and in setting the mistake committed by the trial court right.
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12. As provided in order 7 rule 7 of the Code, the court has the power to grant general or other relief which appears it to legitimate and proper in any case even though such reliefs have not been specifically asked for. When it is not inequitable to do so and it should not be larger than what prayed for. That relief which may be granted has to be subject to the satisfaction that the grant of the same is just and proper and that such reliefs are neither wholly inconsistent with the original claim or puts the defendants by the surprise as to deprive him of the opportunity to lead any evidence to counter.
The position is well settled that in a suit for permanent injunction where the defendant in his written statement comes to deny the title of the plaintiff and sets up a case of title unto himself, the plaintiff can be permitted to amend the plaint to convert the suit to one for declaration and injunction so as to avoid the legal hurdle as regards maintainability of the suit.
In the instant case, a bare reading of the case projected by the plaintiff in the plaint as also the rival claim laid by the defendant in the written statement goes to reveal that when the plaintiff asserted his title over the suit property in support of the prayer for permanent injunction; the defendant while very much denying the same has on the other hand claimed independent title.
// 12 // The parties have led evidence extensively in support of their respective claim.
13. In view of above pleadings, the following relevant issues have been framed:-
"1. Was the plaintiff got right, title, interest over the suit land?
2. Whether the defendant is the adopted son of K. Sirimani?
3. Whether the defendant has got right, title, interest and possession over suit land?"
14. In such state of affair, when in order to decide the grant of permanent injunction, the court is called upon to decide the rival claim of the parties laid over the subject matter claiming respective title over the same, in my considered view the move for amendment of the plaint inserting the prayer for declaration of right, title and interest has been rightly allowed and its stage is immaterial. At that stage, the defendant has nothing to be aggrieved and that was also not in consistent with the original claim so as to take the defendant by surprise. The parties were already aware of the respective claim over the subject matter and accordingly issues having been framed, they participated in the trial having all the opportunities. The question now arises whether in that suit the court has rightly granted the relief of partition or not.
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15. At the risk of repeatation, it be stated that it is well within the domain of the court is inconsonance with the provision of order 7 rule 7 of the Code to pass a decree for partition and possession in suit for title or possession if it is so felt just as if the same has been asked for. Although such power is wide enough to grant relief of general nature or other relief, yet it has to be read in the context of the plaint averments and the cause of action made therein. The test is to see whether the defendant will be taken by surprise or if the parties knew the case which had to be tried. The relief is always allowable even though not prayed for; if it is not inequitable to do so and it should not be larger than what prayed for. The rule is rooted in a larger principle, namely that on the one hand, no party at the trial should be taken by surprise and, on the other, in case of an alternative relief, the same should not be such grant to constitute any embarrassment, at least to the parties pleading it. Putting the rival claim of the parties in respective of the subject matter of the suit as those emerge from the pleading as also the other facts and circumstances, viewing the parties to have led extensive evidence on their respective claim, in my considered view grant of such a relief of partition cannot be said to be untenable. The lower appellate court appears to have taken into account the ratio of the decision reported in case of Rangalu Lakshmana vs. // 14 // Rangalu Seetamma: 1986(II) OLR 597. For the purpose, it has also gone to examine as to whether all the necessary parties are there before the Court or not. Finding evidence from P.W. 3 elicited during cross-examination at para-3 that K.Rama, K. Sirimani, P.Mahalaxmi, P.Lokanath. A.Kamala and P.Sabitri are dead, it has found no such hurdle for grant of the decree for partition. It has been further stated that when the plaintiff and defendant represent the family, it is permissible to grant such relief of partition. Said A.Krishna Kumari has executed a deed of gift which has been found to valid to the extent of her interest, and if it would be so found in this appeal, then the said substantial question of law would practically pale into insignificance. Now of course, the question arises as to whether the lower appellate court has rightly granted the decree for partition allotting 3/4th share to the plaintiff and 1/4th share to the defendant over the subject matter of the suit relying upon Ext. 9 which is deed of gift executed by P.Lokanath, A.Kamala and A.Krishna Kumari.
The lower appellate court has gone to dwell upon the rival contention in so far as those two deeds of gift i.e. Ext. 8 and 9 are concerned. It has found on independent assessment of evidence both oral and documentary in detail that Ext. 9 is admissible in evidence although it is a certified copy as secondary evidence. It has // 15 // discarded the Ext. 8 and refused to accept the same in evidence holding it to be a created one for the purpose. Evidence has also been examined in detail in finding out that donees were capable of making the gifts and that is valid in respect of their interest and that it has been so accepted by the plaintiff during the lifetime of the donors. The donee being minor at the time of gift a specific finding has been given. Relying upon the ratio of the decision of the Apex Court in case of K.Balakrishna vs. K. Kamalam and others:2004 (I) Supreme 169 as also deeds recitals made therein the deeds and then viewing the subsequent conduct of the plaintiff in applying for the mutation of the said land in the year 1992, due acceptance of the said gift has finally been held. When this Ext. 9 has been accepted and found to be legally valid and not void as claimed by the defendant, no such error of law can be said to have been committed by granting the plaintiff with the share which the donors had over the property by excluding the share that the defendant was /is having over the same.
In view of the finding that Ext. 8 purported gift of deed executed by P.Sabitri has not been proved and thus has no legal value for being considered for adjudication of the dispute which is found to be in order, it has rightly gone to reallot the share to the plaintiff and the defendant as 3/4th and 1/4th respectively // 16 // modifying the allotment of share as had been done by the trial court as 4/5th and 1/5th respectively.
16. The aforesaid discussion and reasons accordingly provide answers to the substantial questions of law that the lower appellate court has not fallen in error either on fact or in law in granting the relief of partition in the suit with the shares as allotted to the parties.
17. Resultantly, the appeals fail. In the facts and circumstances, the parties are to bear their respective costs throughout.
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D. Dash, J.
Orissa High Court, Cuttack Dated 19th day of June, 2017/ Aswini.