Subash Chandra Senapati & Others vs Unknown
2021 Latest Caselaw 11278 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                    RSA No.17 of 2004


           In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree passed by the learned Ad
     hoc Additional District Judge, Balasore in Title Appeal No.8/52 of
     2002/1999.
                                    .........

Subash Chandra Senapati & Others :::: Appellants.

-:: VERSUS ::-

Madhusudan Das & Others :::: Respondents.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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For Appellants ... M/s. Srinivas Mishra, R.N. Prusty, A.K. Senapati, M.K. Dash, S. Mantry, A.K. Mishra & P.K. Dash, Advocate For Respondents ... Mr. S.P. Mishra, Sr. Advocate Mr. S.K. Dash, S.K. Mishra, B.

Mohanty & S. Mishra, Advocates

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PRESENT:

THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 03.11.2021

--------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the

Code of Civil Procedure (for short, 'the Code') has assailed the {{ 2 }}

judgment and decree passed by the learned Ad hoc Additional District

Judge, Balasore in Title Appeal No.8/52 of 2002/1999.

By the said judgment and decree while dismissing the First

Appeal filed by the Appellants (Defendant Nos. 1(a) to 1(c)), the First

Appellate Court has confirmed the judgment and decree passed by the

learned Additional Civil Judge (Senior Division), Balasore in T.S. No.

100 of 1990-I . The present Respondent No. 1 is the Plaintiff in the Suit

and the rest of the Respondents had been arraigned as Defendant Nos. 3

to 14 and they having not filed the written statement had neither

contested the Suit nor the First Appeal. The original Defendant No. 1

having died during the pendency of the Suit, his legal representatives

have come on record as Defendant Nos. 1(a) to 1(c) and they are the

present Appellants. Original Defendant No. 2 namely, Radhaballav Das

having died during pendency of the Suit, in the absence of any issue of

his own as also his wife being not alive and presence of his elder brother

Defendant No. 3 and other agnates Defendant Nos. 4 to 14, his name has

been expunged as Dead.

2. For the sake of convenience, in order to avoid confusion and bring

in clarity, the parties hereinafter have been referred to, as they have been

arraigned in the Trial Court.

{{ 3 }}

3. The Plaintiff's case in short is that one Ghana @ Ghanasyam Das

died leaving behind his son Dinabandhu who was survived by three sons

namely, Radhakrushna, Ramchandra and Srihari. The Plaintiff and

Defendant No. 3 are the two sons of Radhakrushna. Rama Chandra died

leaving behind his three sons namely Syamsundar, Dologovinda

arraigned as Defendant Nos. 4 and 5 respectively and Managovinda

being dead, his widow has been arraigned as the Defendant No. 6

whereas Defendant Nos. 7 to 10 are his children. Srihari is the two sons

as Defendant Nos. 11 and 12.

It is stated that one Anu Das representing another agnating branch

died survived by his only son namely, Govinda who died leaving behind

his two sons namely Gopiballav (since dead) and Defendant No. 2.

Defendant Nos. 13 and 14 are the son and widow of Gopiballav. It is

further stated that the parties are 'Baishnabites" and for the members

who have been affiliated to have cult, the traditional way of cremation

of the dead bodies is not resorted to and accordingly, the dead bodies of

the members of the family are being buried separately in one burial

ground set apart for the purpose by the family. The said land under C.S

khata No. 66 of Mouza Chandipur assigned with C.S. plot No. 123 is

said to be the said such burial ground of the family and noted as i.e.

'SAMADHI'. It is said that the Suit property was divided in the Major

Settlement into two plots comprising of plot no. 241 and 242. Under {{ 4 }}

M.S. Khata No. 50, Ac.0.02 decimals when came to be allotted to plot

No. 241, similar extent of land Ac.0.02 dec. stood allotted to plot No.

242 under M.S. Khata No.286. Over the said land under plot no.242, the

Defendant No.1's note having 1/4th share is said to have been

erroneously recorded by the Settlement Authority by banking upon the

registered sale deed dated 27.11.74 executed by Defendant No. 2 in

favour of the Defendant No. 1 which is void. For that extent of land

measuring Ac.0.03/4 dec. vide C.S. plot No. 123, this noting etc. are

said to have been surrepsiously made keeping all other co-sharer in

complete darkness. The sale is said to be opposed to the family custom

and tradition as also that the nature of property being not partiable such

sale is attacked as void ab initio. The sale having come to be noted for

the first time in 1975 during the settlement rent camp stage although the

objection had been filed; it is said to have been illegally ignored.

It is next said that taking advantage of such illegal note of

possession, Defendant No. 1 forcibly encroached upon the land

measuring Ac.0.02 dec. appertaining to khata No. 242 as described in

Lot No. I of schedule 'B' of the plaint on 15.11.89 and the same is said

to have been amalgamated which his adjacent land. For all these, the

Suit has come to be filed.

4. Contesting Defendants i.e. the legal representatives of original

Defendant No. 1while traversing the case averments have denied the {{ 5 }}

plaint of the Plaintiff that the schedule land under schedule 'B' was se

apart as burial ground, 'SAMADHI' for the joint family and that it was

used as such from time immemorial. They also denied that the dead

bodies of the members of the family are buried and not put to funeral

pyre. It is their specific case that the Suit land having since been

partitioned amongst the co-sharers, separate rent schedule have been

prepared and it was so in respect of the Suit land in the name of

Radhaballav, the deceased Defendant No. 2 and Gopiballav indicating

their separate possession. It is however stated that the property under

Lot No. II of schedule 'B' has been wrongly recorded as part of the C.S.

plot No. 123 although that land was the part of C.S. No. 122 which is

the separate purchased land of Defendant No. 2. The Defendant No. 2 is

said to have sold away the property under Lot No. II in schedule 'B' to

Defendant No. 1 by registered sale deed dated 27.11.74 and since then

the possession of the said land remained with Defendant No. 1 and after

his death is possessed by the Defendant Nos.1(a) to 1(c) and thus they

are in possession of that land under C.S. plot No. 122 by keeping it

under enclose putting green fence around it. It is said that the Plaintiff

although had raised objection in the settlement rent camp stage, the

Plaintiff himself and other co-sharer have then had accorded their

consent for recording the Suit property exclusively in the name of {{ 6 }}

deceased Defendant No. 1. Alternatively, they have set up a case as to

have perfected their title over that land by way of adverse possession.

5. On the above rival pleadings, the Trial Court framed in total eight

issues. Having answered issue no. 5, first which in my view is the

correct course so adopted, the conclusion has been that the Suit land is

used as 'SAMADHI' the cremation ground of the family comprising of

Plaintiff and Defendant Nos. 2 to 14. As regards the next important issue

i.e. issue no. 4 concerning the alternative case of the Defendant as to

acquisition of title over the same by adverse possession, side by side

dealing with other surrounding circumstances attached to the land with

its character as already held, the answer has been recorded in favour of

the Plaintiff. Accordingly, the Suit has been decreed directing the

deletion of the name and share of the Defendant No. 1 from the M.S.

khatians and correction as to the nature of the property under Lot No. II

of schedule 'B' at column 8 and 9 as 'SMASAN' and 'SAMADHI'.

The Lower Appellate Court in addressing the contention raised

before it by the parties upon holding the discussion of rival case and

evidence on record at para-8 to 12 of its judgment has found no reason

to tinker with the findings of the Trial Court in any way/s. The result

rendered by the Trial Court has remained the same in the First Appeal.

6. The Appeal has been admitted on the following substantial

questions of law:-

{{ 7 }}

A) Whether in absence of pleading and evidence that the Suit plot is ancestral joint family 'coparcernary' property, the finding that sale deed in Ext.A is ab initio void according to authority reported in 78 (1994) CLT 397?

B) Whether the plaintiff is entitled to challenge deceased defendant No.2's sale to defendant No. 1 as he is not entitled to succeed to the share of defendant No. 2 by survivorship?

7. Mr. S. Mantry, the learned counsel for the Appellant submits that

the findings by the courts below that the Suit property under described

in Lot No. I and II of the schedule 'B' of the plaint is in nature, the

burial ground (SAMADHI) of the joint family is wholly untenable and

in the absence of any pleading and even in the absence of any evidence

that the Suit plot is the ancestral joint family coparcernary property, the

courts below have complete erred in accepting the claim of the Plaintiff

as also by subsequently holding the sale made by the Defendant No. 2 in

favour of original Defendant No. 1 as void ab initio. He submits that

oral and documentary evidence let in by the parties being properly

scrutinized, the finding recorded by the courts below can never stand

and it ought to be held that the Plaintiff has failed to discharge the

burden of proof resting on is shoulder on those scores. He however

submits that the answer to the second question is dependant upon the

answer to the first one.

{{ 8 }}

8. Mr. S.P. Mishra, the learned Senior Counsel appearing for the

Respondent No. 1 submits all in favour of the findings returned by the

courts below. According to him, on the face of the concurrent finding of

fact recorded by the Trial Court as well as the First Appellate Court as

regards the nature and character of the property in Suit and its user by

the members of the family and further keeping in view the admitted fact

that the parties are Baisnabites not following traditional way of

cremation by putting dead body on the funeral fire as there surfaces no

such perversity, the first substantial question of law must receive its

answer in favour of dismissal of this Appeal.

9. From the certified copy of the C.S. record of right relating to the

Suit land, the joint recording of the same in the name of Dinabandhu

predecessor of Plaintiff and Defendant Nos. 3 to 10 and Govinda, the

predecessor of Defendant No. 2, 13 and 14 with ½ share entitlement to

each is evident. The kisam of the land as finds mention therein is

'SAMADHI'. The claim of the Defendant No. 2 is primarily based

upon Ext. A, the sale deed executed by Defendant No. 2 in favour of

Defendant No. 1. That also clearly discloses the nature of the land

measuring Ac.0.03 dec. out of the Suit land as so involved in the

transaction was 'SAMADHI' as on that date i.e. 17.11.74. There is no

evidence on record as to said nature of land having undergone change

after purchase.

{{ 9 }}

In that view of the matter and in the absence of any evidence let in

by the Defendant Nos. 1(a) to 1(c), the Trial Court having said that they

have not been able to establish that the foundation for recording of the

property vide Lot No. II of schedule 'B' of the plaint as 'Homestead'

instead of 'SAMADHI', this Court finds no such infirmity therein.

In view of the above, this court wholly agrees with the view of the

Trial Court that such entry as regards the nature has no significance and

is simply to be ignored.

10. On going through the document admitted in evidence and marked

Ext. 1, 2 and 3 and A as also the oral evidence available on record the

findings of the courts below that the Suit land has been used as

'SAMADHI' or burial ground of the Plaintiff and the Defendant Nos. 2

to 14 is seen to be free from any such infirmity. That nature of property

being not partiable, when the courts below have found the alienation

made by the Defendant No. 1 in favour of Defendant No. 2 vide Ext. A

as void; this Court finds the same to be well in order. The evidence on

record being wholly insufficient, this Court is also of the considered

view that rightly the alternative case of Defendant Nos. 1(a) to 1(c) as to

acquisition of title over the Suit land by adverse possession has no leg of

stand and that plea eventhough has been taken in the alternative, the plea

itself is wholly contradictory to the main plea based on purchase.

{{ 10 }}

Moreover, in view of the finding as to the rights of the parties and nature

of the property, the plea is not entertainable in law.

11. All these aforesaid thus provide the answer to the first substantial

question of law running in favour of dismissal of this Appeal.

Consequently, the answer to the other substantial question of law also

follows the same path.

12. Accordingly, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy