Orissa High Court
Jayadeb Swain vs Santha Behera And Ors. on 11 July, 2006
Equivalent citations: AIR2007ORI15, 2006(II)OLR286, AIR 2007 ORISSA 15, 2007 (1) ALL LJ NOC 151, 2007 (2) AJHAR (NOC) 388 (ORI), (2006) 2 CLR 218 (ORI), (2006) 2 ORISSA LR 286
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. The judgment and decree in Title Appeal No. 18 of 1982-1 of the Court of Subordinate Judge, Bhadrak has been assailed in this appeal.
2. The present Respondent No. 1 as plaintiff filed O.S. No. 183 of 1978-1 in the Court of Munsif, Bhadrak seeking declaration of title, confirmation of possession and other consequential reliefs in respect of the suit property. His case in brief was that one Anadi Ojha, father of defendants 1, 2 and 4 to 7 and husband of defendant No. 3, purchased the suit land from out of joint family funds on 17.2.1947 through a registered sale deed (Ext.3); whereupon the said Anadi, his sons defendants 1 & 2 each earned 1/3 share in that property. On the death of Anadi his 1/3 share was succeeded by his heirs defendants 1 to 7. After death of Anadi defendant No. 1 being the eldest son became the Karta of joint family and managed the affairs of the family. In order to repay some joint family loan and maintain the family he sold the suit land to the plaintiff on 22.7.1978 for a consideration of Rs. 2000/- under a registered sale deed, Ext. 1 and defendant No. 2, the other male heir of the joint family became the coexistent of that sale deed. After the said purchase the plaintiff took delivery of possession of the suit land and raised paddy crops over the same, but after some time he found that Plot No. 539 under Khata No. 23 measuring Ac.1.22 dec. had been wrongly mentioned in the sale deed though the land purchased corresponds to Plot No. 538 appertaining to Khata No. 123 measuring Ac.1.12 decimals. He, therefore, asked defendants 1 & 2 to ratify the mistake in the sale deed by executing deed of ratification. Though the defendant Nos. 1 & 2 agreed to execute a deed of ratification, yet they deferred the matter on various pretexts. When the matter stood thus, defendant No. 8 suddenly challenged the title of the plaintiff over the suit land claiming that he purchased the suit land from wife of late Anadi Ojha (defendant No. 3) on 27.10.1978; as a result, plaintiff had to file the suit seeking the aforementioned reliefs. It was also pleaded that defendants 3 to 7 had no saleable right over the suit land on 27.10.1978 as the suit land had already been sold to him by defendant Nos. 1 and 2 for legal necessity of the joint family.
3. Defendant No. 8, who is the sole appellant in the present appeal, contested the suit asserting that defendant No.1 was not the Karta of the joint family and that there was no legal necessity for sale of the suit land to the plaintiff. According to him, defendants 1 and 2 were separate from their father Anadi during the lifetime of Anadi and had no interest over the suit property. He claimed that the defendants 3 to 7 inherited the suit property, possessed the same and defendant No. 3 sold the suit land to him on 27.10.1978 for valid consideration to meet the expenses of the marriage of defendant No. 7 and accordingly, he has acquired title and possession over the said land. Defendant No. 8 claimed that the sale in favour of the plaintiff was a sham transaction without consideration and, therefore, no title passed to the plaintiff.
4. Defendant Nos.1 and 3 to 6 filed written statement supporting the plea of defendant No. 8, but they did not bother to contest the suit and were set ex parte.
5. From the pleadings of the parties learned trial Court framed 4 issues and on consideration of the evidence, oral and documentary, led by the parties held that the sale transaction in favour of the plaintiff is legal and valid and plaintiff has acquired right, title and possession over the suit property and that defendant No. 8 has acquired no right, title or possession over the same. He, accordingly, decreed the suit. The decree of the trial Court was challenged in the first appeal noted above on the ground that the trial Court did not properly appreciate the evidence on record and the position of law. Learned first appellate Court re-examined all the evidences and concurred the findings of the trial Court and dismissed the appeal. Aggrieved with the judgment and decree of the first appellate Court, the appellant-defendant No. 8 has preferred this second appeal.
6. Although several grounds were raised in the appeal memo and some questions of law were also formulated at the time of admission, Mr. P. Kar, learned Counsel for the appellant attacked the impugned judgments basically on the following points:
(i) Whether the Courts below were legally competent to hold that defendant No. 1 was the Karta of the family when the said defendant No. 1 in his written statement pleaded that he was not the Karta of the family?
(ii) Whether the Courts below were legally justified in their conclusion that the land sold under Ext. 1 is the suit land, which situates on Plot No. 538 under Khata No. 123 measuring Ac.1.12 decimals although in the sale deed the land sold has been described as Plot No. 539 under Khata No. 23 area Ac.1.22 dec.?
(iii) Whether the sale deed - Ext. 1 could convey any title to the plaintiff when the legal necessity noted in the sale deed was different than what was put forth in the evidence of the plaintiff?
(iv) Whether Ext. 4 could have been legally accepted in evidence when there was no pleading about the same?
Mr. Kar argued that evidence in relation to above noted aspects can be examined by this Court even in the face of concurrent findings of the Courts below and relied on the case of Ramlal and Anr. v. Phagua and Ors. reported in AIR 2006 SC 623, which contains observations that High Court in Second Appeal is at liberty to depreciate evidence and record its own conclusion when both the lower Courts concurrently erred in not appreciating the oral and documentary evidence properly.
7. Mr. Patnaik, learned Counsel appearing for the respondents offered counter argument indicating that the pleading of defendant No. 1 was self serving and was never backed by any evidence, so the Courts below were competent to record the finding that the defendant No. 1 was the Karta of the family and that he sold the suit land to the plaintiff respondent No. 1 for legal necessity, when evidence to that effect were available on record. He argued that in case of mis-description of a property in a document, evidence can be led to establish the correct identity of the property. According to him, when there is conflict between the plot numbers, Khata numbers and the boundary, the boundary shall prevail and so the Courts below committed no legal error in allowing evidence to be led about the real identity of the suit land. Mr. Patnaik further argued that the legal necessity having been clearly mentioned on Ext. 1 and the witnesses having supported the same presumption of legal necessity was available and astray statement of a witness cannot upset such presumption. Lastly, Mr. Patnaik argued that Ext. 4 is a document, which was produced by P.W. 4 during the course of hearing and since it was relevant to the issue of the suit, the same was admitted in evidence. According to him, such relevant document produced by witnesses is admissible even in the absence of specific pleading.
8. Admittedly, Anadi was the owner of the suit land and he died leaving behind his widow-defendant No. 3, sons-defendant Nos. 1 & 2 and daughters-defendant Nos. 4 to 7 as legal heirs. The plea of plaintiff-respondent No. 1 is that after the death of Anadi, defendant No. 1, who is the eldest son became the Karta of the family and for legal necessity of the joint family he sold the suit land to him. Plea of the appellant-defendant No. 8 as well as that of the other defendants was that defendant Nos. 1 & 2 were already separate from Anadi in mess and property during the life time of Anadi and they had no saleable right over the suit property; rather defendant Nos.3 to 7 as the legal heirs of Anadi had right and title over the said property.
A Hindu family is legally presumed to be joint unless otherwise proved. So, the burden was on the defendants to establish that there was a complete partition and defendant Nos. 1 and 2 were separate in mess and property from Anadi. Defendants failed to produce any document or reliable oral evidence of partition between defendant Nos. 1 and 2 and Anadi or for proving the fact of living of defendant Nos. 1 and 2 in separate mess. Learned Courts below have recorded this aspect and have disbelieved the plea of partition. From the evidence of P.Ws. 1, 3 and 4 and some admission of D.Ws they have drawn inference that the family was still joint and defendant No. 1 being the eldest son was the Karta of the family. No doubt, defendant No. 1 filed written statement with other defendants denying that he was the Karta of the family, but he never came forward to support or prove that stand. When positive evidence were available on the joint ness of the family and there was no evidence regarding partition, Courts below had legal jurisdiction to ignore the pleading of defendant No. 1 and record the finding on the evidence available on record.
9. Admittedly, the land sold to plaintiff has been described in the sale deed Ext. 1 under Khata No. 23, Plot No. 539 area Ac. 1.22 dec. But in evidence oral and documentary, it was shown that late Anadi had never acquired that land and had no connection with Khata No. 23, Plot No. 539 and that he was the owner of Plot No. 538 in Khata No. 123 over an area of Ac. 1.12 dec.and that defendant Nos. 1 and 2 sold the land left by Anadi to the plaintiff. Evidence was also led to show that by mistake wrong plot number and khata number were noted in Ext. 1 and that the real intention was to sell the suit land. The description of boundary given in Ext. 1 also supported the plea that the suit land was sold under Ext. 1. Law is settled that in case where there is mistake in description of land sold under a sale deed, to ascertain the land actually sold the boundary of the land given in the sale deed is to be given preference to the description of the land by survey plot numbers. This principle has been underlined by this Court in the case of Dhobei Behera v. Nabaghana Senapati and Anr. 1973 (2) C.W.R. 1255 and the case of Koresh Patnaik v. Hari Molliko and Ors. ILR 1964 Cuttack Series 203. It is pointed out in these cases that recital of the area, plot number etc. in the body of the document cannot be read as divorced from what is stated in the boundaries. In the case of Basudev Das and Anr. v. Somenath Das ILR 1963 Cuttack Series 189, also a Division Bench of this Court ruled that in cases where documents contain contradictory statements or mis-description of property extrinsic evidence will be admissible by virtue of Section 95 read with Section 97 of the Evidence Act. Again in the case of P. Ramamurty v. A. Kalapa Patro and Ors. 1963 ILR Cuttack Series 525, this Court observed that once it is accepted that the parties really intended to convey certain properties and possession of the said properties was in fact delivered to the vendee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale deed would not be of any consequence. Keeping these principles in mind the Courts below analysed the evidence on record and came to the conclusion that the suit property was actually intended to be sold and possession of the suit property was also given to the plaintiff respondent No. 1. Such conclusion, being supported by principles of law and evidence on record, does not call for any interference.
10. Relying on the decisions reported in AIR 1930 P.C. 57, Siddik Mahomed Shah v. Mt. Saran and Ors. and 1999 (2005) C.L.T. 48 : 2004 (Supp.) OLR 910, Para Biswal v. Janjali Khan, Mr. Kar submitted that Ext. 4 should not have been admitted in evidence as there was no pleading about its existence. Law is settled that a party cannot be permitted to lead evidence beyond his pleadings. But a party is not required to mention all his evidence in the pleadings. Ext. 4 is an agreement between defendant Nos. 3 and 8. It was produced by P.W. 4 and the said witness clarified under what circumstance it was in his possession and was produced by him in Court. The appellant raised no objection when it was proved. No doubt, some evidence was led by defendant No. 8 by way of explanation that blank stamp papers were stolen and Ext. 4 was created. But the first appellate Court at pages-13 & 14 of its judgment elaborately discussed all these aspects. When the document was in custody of P.W. 4 and was produced by him and the plaintiff had no knowledge about the existence of such document, there was no scope of any pleading about Ext. 4. So, learned Courts below did not commit any legal error in accepting Ext. 4 in evidence.
11. Mr. Kar argued that in case of alienation of joint family property, it is the alienee's duty to prove legal necessity and absence of proof of legal necessity or benefit to the family, alienation by Karta will not be binding on the other members of the family. In support of this contention, he relied on the decisions reported in 86 (1998) C.L.T. 35 Gopabandhu Das and Ors. v. Maheswar Mundian and Ors. and AIR 1983 Orissa 135 Smt. Manohari Devi and Ors. v. Choudhury Sibanava Das and Ors. Mr. Kar pointed out that, in the sale deed Ext. 1, the legal necessity has been described as payment of debt and maintenance of family; whereas in the evidence from both the sides, it was said that the land was sold to meet the marriage expenses of defendant No. 7. He contends that in the face of such contradictory plea the Courts below erred in believing that there was legal necessity in the family. The evidence in this regard have been clearly discussed by the Courts below. Ordinarily, whether there is legal necessity to support an alienation is a question of fact and the Courts below having concurrently held that there was legal necessity in the family and that being the eldest male member defendant No. 1 as Karta sold the suit land along with the other male member defendant No. 2, there is no scope for this Court of second appeal to interfere with the finding particularly when there is no perversity in the approach of the Courts below.
12. In view of the foregoing discussions and conclusions, the second appeal is found to be without any merit and is dismissed on contest with cost.