Orissa High Court
Tarini Kanta Giri vs Bhajanananda Giri And Ors. on 12 July, 2006
Equivalent citations: 2006(II)OLR458, AIR 2007 (NOC) 51 (ORI.)
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1.This appeal has been directed against the judgment and decree of learned Subordinate Judge, Karanjia passed in Title Appeal No. 10 of 1985-l reversing the judgment and decree of learned Munsif, Karanjia in Title Suit No. 12 of 1981-l.
2. Respondent No. 1 as plaintiff filed the above noted suit asking for declaration of right, title and interest over the suit land, which he claims to have purchased from Respondent No. 4, who was defendant No. 3 in the suit. His specific pleading was that in a family partition, the suit property fell to the share of defendant No. 3 and that defendant sold the same to him by means of a registered sale deed Ext. 1 and delivered possession of the land, but defendant No. 5 created disturbance in his possession. The present appellant, who was defendant No. 5, contested that claim pleading inter alia that in the family partition the suit land fell to the share of respondent No. 2, who was defendant No. 1 in the suit and that defendant No. 1 first entered into an agreement with him vide Ext. A and thereafter sold the suit land to him and basing on that sale, he came into possession of the suit land. Learned trial Court after considering the evidence, oral and documentary, led by the parties came to hold that the plaintiff failed to prove that the suit property fell to the share of Defendant No. 3 and that the plaintiff acquired title over the property through the sale effected by defendant No. 1. Consequently, the trial Court dismissed the suit, but directed for refund of the consideration amount to the plaintiff. Against that judgment and decree the plaintiff preferred Title Appeal No. 10 of 1985. Learned first appellate Court on reconsideration of the evidence and circumstance reversed that finding with the observation that the suit land never fell to the share of defendant No. 3 and the plaintiff got right, title over the suit property by virtue of the sale deed executed in his favour by defendant No. 1. The present appeal is against the said order and observation of the first appellate Court.
3. Though at the time of admission several substantial questions of law were accepted for consideration Mr. Bose, learned Counsel appearing for the appellant confined his argument to the following two questions of law only and submits that the other points formulated may be ignored. The substantial questions of law now pressed by learned Counsel for the appellant are as follows:
(i) In the face of admission by defendant No. 3, whether the fact that the suit property did not fall to the share of defendant No. 3, but to the share of defendant No. 1 has still got to be proved in view of Section 58 of the Evidence Act ?
(ii) Whether property once mortgaged can be transferred with the mortgagor's liability to a third party ?
According to learned Counsel for the appellant, when there is clear admission by the defendant No. 3 that the suit land never fell to his share, but it fell to the share of defendant No. 1, there was no scope of accepting or rejecting any evidence on this score, as according to Section 58 of the Evidence Act, facts admitted by a party need not be proved.
4. Mr. L. Pradhan, learned Counsel appearing for the respondent No. 1 while supporting the impugned judgment of the first appellate Court submitted that the findings do not suffer from illegality or perversity and, therefore, there is no scope of any interference in second appeal.
5. It would appear from the written statement of defendant No. 3 that he admitted that in the family partition, the suit land fell to the share of defendant No. 1. Defendant No. 1 admitted that he sold the suit land to defendant No. 5, who is the present appellant. Learned first appellate Court did not discuss or even indicate about the admission of defendant No. 3 or some of the evidence relating to the apportionment of the share of the family partition. Instead, by simply observing that the boundary given in the deed of agreement, Ext. A did not tally with the suit land, he disbelieved sale of the suit land to defendant No. 5-appellant. There was never any issue about boundary of the suit land. The controversy in the pleadings of the parties was simply about who got the suit land in his share. In not considering the admission of defendant Nos. 1 and 3 in this regard and also other surrounding evidence relating to partition, learned first appellate Court committed gross legal error. In fact he should have taken into account the presumption attached to admission of a party under Section 58 of the Evidence Act.
6. Regarding the validity of the sale of a mortgaged property, law is very clear that mortgaged property can be sold, but in that event the mortgagor's liability would pass on to the purchaser and unless the said liability under the mortgage is cleared, title would not pass to the purchaser. Be that as it may, this was never an issue in the suit or in the first appeal. So, the conclusion of the learned first appellate Court noted in paragraph 17 of the judgment was uncalled for and is also not in accordance with law.
7. Since learned first appellate Court has not considered the issues and evidence in accordance with the settled principles of law and has recorded findings on extraneous consideration, the judgment in Title Appeal No. 10 of 1985 cannot be sustained. The impugned judgment of the first appellate Court is accordingly, set aside, but the matter is remitted back to the first appellate Court for fresh disposal according to law after giving an opportunity of hearing to the parties. In this situation, the appeal is allowed, but the parties are directed to bear their own costs in the appeal.