Orissa High Court
Natabar Padhan And Others vs Lalita Padhan And Another on 27 November, 2020
Author: D. Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
S.A. No.243 of 1989
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 15.02.1989 and
02.03.1989 respectively passed by the learned Sub-ordinate Judge,
Aska in T.A. No.13 of 1985 reversing the judgment and decree dated
29.04.1985 and 17.06.1985 respectively passed by the learned Munsif,
Kodala in T.S. No.42 of 1982
.........
Natabar Padhan and others ... Appellants.
-VERSUS-
Lalita Padhan and another ... Respondents.
Advocate(s) who appeared in this case by Video Conferencing mode:-
------------------------------------------------------------------------------------------------------------
For appellants ... M/s.N.C.Pati, A.K.Nanda and
S.K.Swain (Advocate)
For respondents ... M/r.C.R. Misra, B.N.Nayak and
G.Misra (Advocates)
.........
PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
--------------------------------------------------------------------------------
Date of judgment:27.11.2020
--------------------------------------------------------------------------------
D.Dash,J. The appellants, by filing this appeal, under section 100 of
the Code of Civil Procedure (for short, 'the Code') have assailed the
judgment and decree passed by the the learned Sub-Ordinate Judge,
Aska (as then was) in Title Appeal No.13 of 1985.
By the same, the lower appellate court having set aside the
judgment and decree passed by the learned Munsif, Kodala (as it was
then) in Title Suit No.42 of 1982 which had been called in question in
-2-
that appeal at the instance of the plaintiffs (respondents) as against the
dismissal of their suit; has decreed the suit declaring the right, title and
interest of the plaintiffs (respondents) over the suit land and for
recovery of possession.
2. For the purpose of convenience and clarity; the parties
hereinafter have been referred to in the same rank as assigned to them
in the original suit, namely, the appellants as the defendants whereas
the respondents as the plaintiffs in the same chronological order.
It may be stated here that the appellant nos. 1 to 4
(defendant nos. 1 to 4) having died during pendency of this appeal; the
same is being pursued by the appellant no.5 (defendant no.5). By a
specific order assigning reasons, it has already been said that the non-
substitution of the legal representatives of those deceased appellants-
defendants is not fatal to the appeal.
3. The plaintiff's case is as under:-
Ghanashyam, Natabara, Banchanidhi, Balaram, Bibhisan
and Balya are the six sons of late Damburu Padhan. He had also three
daughters. Dambaru died about 25 years prior to the suit. The joint
family consisting of Dambaru and his six sons had around 120 bighas of
landed properties as well as 8 houses. After the death of Dambaru, his
six sons continued to remain in joint possession of the properties for
few years when dissension for some reason or others arose amongst
the family members in the year 1969 or so. All having joined against
Ghanashyam, who happens to be the father of plaintiff no.1 and father-
in-law of plaintiff no.2 to deprive him of his legitimate share over the
landed properties of the joint family; that Ghanashyam had to file a suit
for partition against other members of the family, which stood
numbered as T.S. No.48 of 1970. It is said that then due to intervention
-3-
of the local gentlemen, the properties were then divided in six halves
and one share was granted to Ghanashyam. In view of the same, the
said suit for partition was not further prosecuted by Ghanashyam. The
house, which now forms the subject matter of the suit is said to have
been allotted to Ghanashyam. So, it is said by the plaintiffs that
Ghanashyam became the right, title and interest holder of the suit
house and remained in possession of the same which is now with the
plaintiffs.
It is further stated that Ghanashyam since had no son when
this plaintiff no.1 was having hand to mouth living in her in-law's place,
he had bequeathed the suit house and Ac.0.82 cents of land in her
favour by a will executed by him on 28.07.1972, which is a registered
one to the knowledge of all the defendants and other local gentlemen.
Few months thereafter, Ghanashyam, in order to see that in future, no
such trouble arises for her daughter, he also gave the very same
property to her by a registered deed of settlement made on
22.11.1972. The plaintiff with her family claim to have been in
exclusive possession of the suit land and house to the exclusion of all
other members of the family.
It is stated that the defendants and their children having
failed in their attempt to cause deprivation to the plaintiffs in getting
any property, remained in enimical term with the plaintiffs and an
incident having once arisen, there was a criminal case and that was
concerning the occupation of the suit house. On 03.06.1978 the suit
house was gutted with fire and then the defendants threatened to
trespass upon the same, which was somehow prevented by the
plaintiffs by initiating a proceeding under section 144 Cr.P.C. in the
court of the Executive Magistrate, Chhatrapur and obtaining an order of
restraint. The plaintiffs claimed that after the suit house was destroyed
-4-
by fire, they have put up thatched roof and during that period, severe
threat came from the side of the defendants. So, once for all to avoid
any future dispute/litigation, the suit had to be filed for the reliefs as
stated above.
4. The defendants 1 to 5, in their written statement, denied
the assertion made by the plaintiffs that the suit house had been
allotted to Ghanashyam in a prior partition. It is stated that out of the
total area at the site, half had been purchased by Natabar (defendant
no.1) in the year 1952 and the remaining half had been purchased by
Dambaru, the father of the defendants in the year 1948 and that half
has been given to Natabar (defendant no.1) as Jyesthansa and the rest
half, with the consent of other defendants, who are his brothers. Still all
the defendants are in occupation of the suit house by converting it into
a chow shed. Although all the defendants have stated that defendant
no.1 alone has the right, title and interest over the suit site, they assert
that their joint possession still continues. Refuting the case of the
plaintiffs, as aforesaid, the defendants prayed to non-suit the plaintiffs.
5. The trial court, on the above rival pleadings, framed as
many as six issues.
Taking up the issues concerning the allotment of the suit
house in favour of the father of the plaintiff no.1 in a family partition
vis-à-vis, the issue as to if the father of the defendant had got the suit
house in partition and then as his Jyesthansa; upon consideration of the
evidence in the backdrop of the rival pleadings, culling out certain
circumstances, the trial court has rendered its finding that the property
had been purchased in the name of different persons of the family and
they were in joint possession. The defendant no.1's claim that it is his
property has been held in the negative. The final finding is that the suit
-5-
house is the joint family property of the family in the joint possession of
the parties. Practically, this has gone to provide the answer to the other
important issue as to the claim of the plaintiffs' exclusive right, title and
interest over the suit land and their possession in the negative. With
such findings, however, the suit has been dismissed.
6. Grieved by the said judgment and decree dismissing the
suit, the plaintiffs carried an appeal under section 96 of the Code before
the learned Sub-Ordinate Judge, Aska. The lower appellate court, on
analysis the evidence both oral and documentary at its level and upon
their examination, has come to conclude that the finding rendered by
the trial court on issue no.2 and 3 are not correct. Having said so, it has
substituted its finding in favour of the plaintiffs. Practically, this finding
has led to decide the fate of the appeal as the lower appellate court has
simultaneously negated the claim of title by the defendants by way of
adverse possession. Thus, the suit has been decreed.
7. The defendants are thus now questioning the above findings
of the lower appellate court in opposition to the findings as had been
rendered by the trial court.
8. The appeal has been admitted on ground nos.1 and 4
having been said that those are the substantial questions of law, which
are reproduced hereinbelow:
"(a)If the lower appellate court committed serious
illegality in holding that the suit house was allotted to
the share of Ghanashyam Padhan in view of the
admission of Ext.2 into evidence without objection in
spite of the evidence of P.Ws2, 3 and 4 to the effect
that they are unable to say as to when item no.18 was
included in Ext.2? and
(b)If Ext.2 is admissible as a document of partition
without being registered?"
-6-
9. I have heard the learned counsel for the appellants at
length. None appeared for the respondents despite several
opportunities. The judgments of the trial court and lower appellate
court have been carefully gone through in the backdrop of the rival
pleadings with simultaneous perusal of the evidence both oral and
documentary let in by the parties. The written notes of submission by
the learned counsel for the appellant; the same has been taken on
record and gone through.
10. In the case at hand the findings rendered by the trial court
have been reversed by the lower appellate court. The unsuccessful
plaintiffs, being the appellants, before the lower appellate court had
first of all raised the contention that the partition list admitted in
evidence from their side and marked as Ext.2 is genuine and binding on
the defendants and thus the factum of partition in the year 1972
between Ghanashyam and others with the allotment of properties as
amongst the parties thereunder ought to have been upheld by the trial
court. It was also contended that the gift deed executed by
Ghanashyam marked as Ext.4 although was genuine, the trial court has
erred both in fact and law by rejecting the same. The conclusion of the
trial court as to the inclusion of the property under item no.18 in that
partition list (Ext.2) to have been made later and as such manipulation
was questioned to be against the weight of the evidence on record and
for that, it was urged that such a finding cannot be allowed to stand.
Such contentions were refuted by the defendants before the
appellate court and they strenuously urged in support of the findings
rendered by the trial court.
11. It is seen that the lower appellate court has first of all gone
to address as to whether there was a partition between Ghanashyam
-7-
and his other brothers in the year 1972 in metes and bounds and if the
suit house had fallen to the share of Ghanashyam who then gifted to
the plaintiff no.1. Ext.2 is the document which has been admitted in
evidence from the side of the plaintiffs and that is the list of properties
with a mention that these are in the share of Ghanashyam. As regards
this partition list of the year 1972, the defendants have averred in the
written statement to be having no knowledge and then it has been
stated that if that would be so proved by the plaintiffs, the same being
void is of no value and thus cannot form the foundation of the plaintiff's
claim. It has been further stated in paragraph-4 of the written
statement that mention of the suit house in the property list of those
documents is an act of manipulation and as such void and that has not
clothed Ghanashyam with any title over the said property. The
averments appear to be ambiguous.
It was first contended by the learned court for the appellant
that this Ext.2 being inadmissible in evidence ought not to have been
looked into for any purpose whatsoever. Then, he contended that this
Ext.2 being rendered suspect especially as to inclusion of the property
under item no.18 which is the crux issue here to decide the fate of the
suit, the lower appellate court's conclusion in accepting that Ext.2 in
decreeing the suit, contrary to the finding of the trial court is faulty not
only in law but on fact as that finding overruling the interpolation of
item no.18 properly therein is based on perverse appreciation of
evidence. The learned counsel for the appellant had taken this Court
through the evidence of P.W.2 and 4 is showing as to how inconsistent
their evidence on this score run.
The pleadings laying down the claim of the defendants for
non-suiting the plaintiff shows that they, instead of projecting any
specific case, find the averments like beating around the bush in
-8-
watching as to how far the plaintiffs are able to prove the same so as to
heavily rely upon the failure of the plaintiffs on the score to that extent.
The parties admit that preparation of the typed copies of the partition
list, one concerning the cultivable land and the other for the house. The
execution of Ext.2 is not disputed by the defendants which is the list of
properties allotted to Ghanashyam. So far as the houses are concerned,
the partition list has been admitted as Ext.3. The dispute lies in a
narrow campus as to the property under item no.18 as finds mention in
Ext.2. The defendants assert during trial that it was not there in the
original list at the time of its preparation and is an act of subsequent
insertion to suite the purpose. In order to provide justification/support
to the same, the use of different carbon resulting appearance of deep
coloured typed letters which in other words using new carbon paper is
stressed upon in support of the challenge as to later inclusion. P.W.2 is
the author of said document (Ext.2). This document has been admitted
without any objection. It is his evidence that there were twelve (12)
numbers of such list which had been prepared and each brother was
given two copies, one relating to the agricultural land and the other for
the houses. His evidence is pin pointed that the suit house was given to
Ghanashyam and that had been typed out by him to mentioning at the
end which was within the knowledge of the defendants as also
Ghanashyam. The defendants do not deny the status of this P.W.2 that
he was one among those associated in the process. This P.W.2 was
never asked to offer his explanation or confronted as to this item no.18
with its description in Ext.2 by deep coloured letters using new carbon
papers. The defendants being in custody of these lists of properties as
has been stated by P.W.2 have not produced any of the copy with them
to show that item no.18 with its description has been an interpolation
-9-
and made subsequent to the preparation of Ext.2 by way of insertion
without the knowledge of all the signatories thereto.
Had it been so made, on the face of available evidence,
clear conclusion would have emerged out. That being so, this non-
production of the document to enable the court to have the concluded
say in the matter leads the court to draw an adverse inference on the
assertion of the defendants as to subsequent inclusion of item no.18
property in Ext.2 only to suit the plaintiffs claim.
Ghanashyam has been examined as P.W.4. It is his
evidence that when Ext.2 and 3 were prepared, he claimed that the
cost for the suit for partition that he had filed he made good of by the
defendants; so in lieu of that the suit house was allotted to him in his
share. This explanation of P.W.4 for such item no.18 in Ext.2 has not
been shaken by bringing/placing any such surrounding circumstances
so as to create doubt in mind. Therefore, this Court is not in a position
to hold that in the above conclusion arrived at by the lower appellate
court suffers from the vice of perversity warranting interference.
12. The document (Ext.2) being the list of properties fallen to
the share of Ghanashyam cannot be taken to be a document by which
the partition of the properties amongst the parties has been made. The
settled position of law is that when by virtue of a family settlement or
arrangement, members of a family descending from a common
ancestor or any near relation seek to sink their differences and
disputes, settle and resolve their conflicting claims or disputed title
once for all in order to buy peace of mind and bring about complete
harmony and goodwill in the family, such arrangements are governed
by a special equity peculiar to themselves and would be enforced if
honestly made. The object of such arrangement is to protect the family
from long drawn litigation, perpetual strifes which mars the unity and
- 10 -
solidarity of the family and create hatred and bad blood between the
various members of the family. However, the court is to see that the
family arrangement is a bona fide one so as to resolve family disputes
and rival claims by a fair and equitable division or allotment of
properties between the various members of the family. The registration
of such a document is necessary only if the terms of the family
arrangement are reduced into writing where also there lies distinction
that the said document if is a mere memorandum prepared after the
family arrangement already made and the document is made after that
for the purpose of the record or for information of the court for making
necessary changes in the record and other papers relating to the
properties; as in that case the memorandum itself does not create or
extinguish any rights in immovable properties and thus is not required
to be registered as the same would not fall within the mischief of
section 17(2) of the Registration Act. So it is admissible in evidence
without being so registered. In the given case the reasons for such
settlement cannot be said to be non-existent. Ghanashyam had filed
the suit for partition and this settlement is subsequent to that. The
other evidence, as discussed also heavily lean in favour of the finding of
the lower appellate court.
On a seemly analysis of the principles as stated and the
discussions made above, this Court finds that the view taken by the
lower appellate court that Ext.2 is acceptable to judge character as to
ownership of the properties as stated under item no.18 therein from
that time onwards is right more particularly when the evidence as to
possession of the parties after Ext.2 is not so clarified in detail by the
defendants so as to negate plaintiffs claim.
In view of all the aforesaid, this Court is unable to provide
the answers to the substantial questions of law favouring annulment of
- 11 -
the judgment and decree as passed by the lower appellate court in
finally decreeing the suit with the relief as ordered therein and thereby
restoration of the judgment and decree passed by the trial court.
13. Resultantly, the appeal stands dismissed and in the facts
and circumstances, without cost.
..........................
D. Dash, J.
Orissa High Court, Cuttack Dated the 27th day of Nov, 2020/ B.Nayak