Orissa High Court
Sri Chandra Mohan Behera .Since Dead. ... vs Sri Sarbeswar Nayak And Others on 9 April, 2018
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.237 of 1994
From the judgment and decree dated 26.3.1994 and 12.4.1994
respectively passed by Shri H. Mohapatra, learned District Judge,
Balasore in M.A. No.93 of 1991 reversing the judgment and decree
dated 25.9.1991 and 28.10.1991 respectively passed by Sri D.K.
Tripathy, learned Munsif, Nilgiri in O.S. No.7 of 1983.
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Sri Chandra Mohan Behera (since dead)
through L.Rs. ................... Appellants
--versus--
Sri Sarbeswar Nayak and others ..................... Respondents
For Appellants : Mr. Prakash Ranjan Barik, Advocate
For Respondents : Mr. Budhiram Das, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :03.04.2018 │ Date of Judgment:09.04.2018
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Dr. A.K. Rath, J.This is a defendant's appeal against reversing judgment.
02. Plaintiff-respondent no.1 instituted the suit for permanent injunction. The case of the plaintiff was that his father, defendant no.2, borrowed a sum of Rs.60/- from one Narayan Roy. Narayan Roy taking advantage of the illiteracy of the defendant no.2 got a sale deed executed in his favour in respect of Ac.0.02 dec. and 4 kadis of the suit land representing to the vendor that the same was the deed of mortgage. The defendant no.2 again borrowed a sum of Rs.100/- from the defendant no.1 to repay the loan of Narayan Roy. Defendant no.1 obtained a sale deed executed by 2 defendant no.2 on 17.8.68 for a consideration of Rs.200/-. It was further pleaded that Narayan Roy sold the land purchased by him for a consideration of Rs.200/- to the defendant no.1 by means of a registered sale deed dated 20.8.68 by misrepresenting that it was a deed of mortgage. According to the plaintiff, he is not bound by the sales in favour of Narayan Roy and defendant no.1 as the suit lands are the undivided joint ancestral properties. The stranger purchasers have not acquired right, title and interest on the portions purchased by them. The defendant no.1 threatened to dispossess the plaintiff. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
03. The defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. The specific case of the defendant no.1 was that he is in exclusive possession of the portion of the suit land. The Tahasildar mutated the suit land in his favour. The order was confirmed in appeal before the S.D.O., Nilgiri. The matter had been attained finality.
04. Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court dismissed the suit. Felt aggrieved, the plaintiff preferred M.A. No.2/4 of 1988/85-I before the learned Addl. District Judge, Balasore. Learned lower appellate court allowed the appeal and remanded the suit to the learned trial court for framing an issue "if the suit property is the undivided dwelling house of the joint family and if the sale deeds executed by defendant no.2 in favour of Narayan Roy and defendant no.1 are valid and binding on the plaintiff". The suit was taken up for hearing afresh after framing the additional issue. The court below came to a finding that defendant no.1 was in actual physical possession of the suit land. As there was 3 no evidence with regard to existence of any dwelling house on any portion of the suit land, the provision of Sec.44 of the Transfer of Property Act did not apply to the impugned transactions. Held so, it dismissed the suit. Feeling aggrieved, the plaintiff filed M.A. No.93 of 1991 before the learned District Judge, Balasore. Learned appellate court came to hold that the suit property formed part of the homestead. There was no partition between the parties. Even if, the defendant no.1 possessed the portion of the purchased land in pursuance of sale, he is liable for ejectment. Plaintiff is entitled to a relief of injunction. In the event the defendant no.1 or his heirs are found in possession of any portion of the suit land, the plaintiff is entitled to recover possession of the suit land. Held so, it allowed the appeal. It is apt to mention here that during pedency of the second appeal, the sole appellant died. The legal heirs have been substituted.
05. The second appeal was admitted on the following substantial questions of law.
"1. Whether proviso to Section 44 of the Transfer of Property Act applies to the present case where transfer of the suit property by Maheswar Nayak, deceased defendant no.2 was not in his personal capacity in respect of his share but as Karta of the joint family ?
2. Whether the courts below are justified in decreeing the suit for permanent injunction when the plaintiff is not in possession of the suit land ? "
06. Heard Mr. Prakash Ranjan Barik, learned counsel for the appellants and Mr. Budhiram Das, learned counsel, on behalf of Mr.A.K. Mishra, learned counsel for the respondents.
07. Mr. Barik, learned counsel for the appellants, submitted that learned trial court while deciding issue nos.2 to 4 categorically held that the sale deeds executed by the father of the plaintiff in 4 favour of defendant no.1 and Narayan Chandra Roy are not mortgage deeds. The defendant no.1 is in possession of the suit land since the date of his purchase. The suit land is not a part of the homestead land of the plaintiff. There is a fence between the homestead of the plaintiff and the suit land. The findings rendered by the learned trial court have not been reversed by the learned lower appellate court. He further submitted that the finding of the learned appellate court that the defendant no.1 being a stranger cannot claim joint possession in view of the bar contained in Sec.44 of the Transfer of Property Act and should be evicted from the suit land is not legally tenable. The defendant no.1 purchased the suit land in the year 1968 by means of a registered sale deed. Possession was duly delivered to him. The plaintiff admitted that he was 18 years old when the suit land was mortgaged with Narayan Chandra Roy in the year 1968. He had not filed any suit challenging the validity of the sale deeds. The suit was filed in the year 1983 after lapse of 17 years seeking prayer for permanent injunction. To buttress his submission, he relied on the decisions of the apex Court in the cases Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and others, AIR 2008 SC 2033, Gautam Paul vs. Debi Rani Paul and others, AIR 2001 SC 61.
08. Per contra, Mr. Das, learned counsel for the respondents, submitted that the suit property is the ancestral joint family homestead of the plaintiff and defendant no.2. The plaintiff's only residential house exists over the suit land. The suit schedule property had not been partitioned by metes and bounds. The father of the plaintiff had no right to alienate the suit property to the defendant no.1. Defendant no.1 was a stranger to the family. He relied on the decision of the apex Court in the case of Dorab Cawasji Warden vs. Coomi Sorab Warden and others, AIR 1990 SC 867.
509. Learned appellate court came to hold that the suit land purchased by the defendant no.1 comprised the homestead. Defendant no.1 was a stranger purchaser. The provision contained in Sec.44 of the Transfer of Property act operates as a bar on the defendant no.1 to claim joint possession or title in respect of the suit land. If the transferees have been put in possession or have come jointly to possess, they can be kept out by injunction. Even if, the defendant no.1 possessed the portion of the purchased land in pursuance of sale, he is liable for ejectment.
10. In Udayanath Sahu vs. Ratnakar Bej and others, AIR 1967 Ori.139, this Court held :
"If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under Section 44 of the T.P. Act." (emphasis laid)
11. Taking a cue from Udayanath Sahu (supra), this Court in the case of Bhim Singh and another v. Ratnakar Singh and others, AIR 1971 Ori.198 held :
"The undivided family consisted of the plaintiff and the defendants 1 and 3 therein. The first defendant had alienated his 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house along with the plaintiff and defendant
2. The facts as found by the courts were that by an 6 amicable arrangement among plaintiff and defendants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession.
xxx xxx xxx "if in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of Section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in Section 44 is to prevent the intrusion of strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out."
xxx xxx xxx "The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial Judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of Section 44 of the Transfer of Property Act an the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be 7 taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession."
12. Bhim Singh (supra) has been quoted with approval in Dorab Cawasji Warden vs. Coomi Sorab Warden and others, AIR 1990 SC 867.
13. In view of the authoritative pronouncement of this Court in the case of Udayanath Sahu (supra) and Bhim Singh (supra), the court below is perfectly justified in decreeing the suit for permanent injunction.
14. The decisions cited by the learned counsel for the appellants are distinguishable on facts. The principles governing grant of prohibitory injunction have been succinctly stated in Anathula Sudhakar (supra). In Executive Officer, Arulmigu Chokkanatha Swamy Koli Trust, Virudhunagar vs. Chandran and others, AIR 2017 SC 1034, the apex Court held that the suit filed by the plaintiff for a mere declaration without relief or recovery of possession was clearly not maintainable when the purchaser admittedly not in possession of the property. In the said case, relief of recovery of possession was not claimed. In none of the cases, Sec.4 of the Partition Act as well as Sec.44 of the Transfer of Property Act were the subject matter of consideration. The substantial questions of law are answered accordingly.
15. A priori, the appeal fails and is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 9th April, 2018/Basanta