Bhaskar Pradhan vs Unknown
2021 Latest Caselaw 11997 Ori

              HIGH COURT OF ORISSA : CUTTACK
                             RSA NO.478 OF 2009

      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, First Track Court-II, Kandhamal,
Phulbani in RFA No. 34 of 2009 (02 of 2007).
                               .........

       Bhaskar Pradhan                               ::::    Appellant.

                                  -:: VERSUS ::-
       Narahari Pradhan                       ::::           Respondent.

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

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For Appellant ... M/s. Maheswar Mohanty, B.K. Nayak and R.K. Das, Advocates

For Respondent ... Mr. R.Ku. Sahoo, Advocate

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PRESENT:

THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 23.11.2021

--------------------------------------------------------------------------------------- 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 judgment and decree passed by the learned Ad hoc Additional District Judge, First Track Court-II, Kandhamal, Phulbani in RFA No. 34 of 2009 (02 of 2007).

The Respondent as the Plaintiff has filed the suit for declaration of his right, title, interest and possession over the suit land with further prayer for recovery of the possession of the suit house from the {{ 2 }}

Appellant-Defendant. The suit having been decreed, the present Appellant-Defendant being aggrieved had filed the First Appeal which has also been dismissed.

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. The Plaintiff's case in short is that he had purchased the suit land

on 16.04.1968 from one Krushna Chandra Nayak for a consideration of

Rs.155/- and it was under a registered sale deed duly executed by said

Krushna. The suit land was subsequently recorded in his name under

plot No. 259. He then constructed the house over that land. In order to

earn his livelihood, the Plaintiff came from his village to G.Udayagiri

and worked in a shop as a salesman. Subsequent thereto, he started a

grocery shop of his own independently, brought his brother Biswanath

Pradhan and got him settled at village Raikia. Thereafter he brought his

next younger brother i.e. the Defendant in the year 1970 to provide him

good education but that move failed. So in the year 1985, he gave some

money to him to start a small grocery shop at village Malansuga that

there also the Defendant failed. In 1988, again accepting the request of

the Defendant, the Plaintiff allowed him to stay in his house as a

monthly tenant on payment of Rs.50/- per month. The rent subsequent {{ 3 }}

enhanced to Rs.300/- per month. The Defendant after sometime stopped

paying the rent. So the Plaintiff issued noticed under section 106 of the

T.P. Act terminating the tenancy. Having received the said notice, the

Defendant's response surprised the Plaintiff when he claimed exclusive

right over the suit land and denied the Plaintiff to have having any right,

title and interest over the same. It was claimed by the Defendant that he

got the suit house in his share in a partition effected in the year 1992.

So the Plaintiff finding no other way filed the suit.

4. The Defendant contesting the suit contended to be the owner of

the suit land and house. He claimed to be exclusive owner in possession

of the suit land having been allotted towards his 1/4th portion in the

partition. It is his case that the land under plot No. 259 was jointly

acquired by the Defendant and his brother including the Plaintiff by

spending the money from the joint family nucleus but the sale deed had

been made in the name of the Plaintiff as he was eldest among them. He

further claimed that the land under said plot was divided into four parts

and the portion over which the said house stand had fallen in his share.

5. Faced with above rival case, the trial court framed five issues.

Upon evaluation of evidence first of all coming to issue as to ownership

of the Plaintiff as claimed over the suit land vis a vis ownership of the

Defendant as projected in respect of the suit land and house, the answer {{ 4 }}

has been rendered in favour of the Plaintiff holding him to be the

exclusive owner of the property in question as it is his self acquired

property. This has practically led the Trial Court to pass the decree in

favour of the Plaintiff for eviction of the Defendant.

The First Appellate Court being moved has gone to discuss the

document proved from the side of the Defendant i.e. one photocopy

nomenclatured as 'SAMJHOTANAMA' marked Ext. B. Upon

consideration of the evidence on record, the First Appellate Court has

held that Ext. B to be of no aid to the case of the Defendant.

Accordingly, accepting the registered sale deed standing in favour of the

Plaintiff and also the record of right etc, the judgments and decrees

passed by the Trial Court have been confirmed.

6. Mr. Maheswar Mohanty, learned counsel for the Appellant

submits that the Lower Appellate Court has erred in law in

misconstruing Ext. B and in reading the same without reference being

made to the averments taken in para-7 of the written statement. He

therefore submits that the finding of the Lower Appellate Court that

Ext. B does not stand to support the case of the Defendant is wholly

erroneous and the same ought to have been held to be a formidable

evidence as to the partition of the total property as amongst Plaintiff,

Defendant and other brother as also allotment of the suit land in the {{ 5 }}

share of the Defendant in the said partition. He further submits that on

the face of the admission of the Plaintiff as would be seen from that Ext.

B as to the allotment of 1/4th over the total land to the Defendant, the

courts below ought to have given due regard to the same when the said

aspect stands corroborated by the oral evidence coming from the lips of

D.Ws. 1, 2 and 3. He thus submits that the above are the substantial

questions of law which are required to be answered in this Appeal.

7. Learned counsel for the Respondent submits all in favour of the

findings returned by the courts below. According to him, the learned

First Appellate Court having made a strenuous exercise has rightly held

that Ext.B to be of no avail to bulldoze the Plaintiff's claim as to the

entitlement to the reliefs.

8. In order to address the submission as above, I have carefully gone

through the judgments passed by the courts below.

Admittedly, the land in question was owned by one Krushna Ch.

Nayak who by registered sale deed dated 16.4.68 has sold the same to

the Plaintiff for valid consideration. The land has been mutated in the

name of the Plaintiff in the record of right. When the Defendant state

that it has been purchased from out of the surplus of the income of the

joint family nucleus, no such evidence on record has come as to how

much land that the joint family had, what was the income therefrom and {{ 6 }}

what was remaining as the surplus and that too in whose hands. The

other document projected by the Defendant is that so called

'SAMJHOTANAMA' that has been marked Ext. B. The document as

placed is a photo copy. No such evidence is there on record as to who

made the photo copy and who had then produced the original for being

so copied. In the first page as also on the reverse of that page of that

document signature of no one finds place. On the next page on one side

five persons including Plaintiff and Defendant and their father and

brother find mention whereas on the left side signature of few others

appear. Going through the contents of said Ext. B, this Court also finds

nothing to have been indicated as regards the purchase of the property

with the help of joint family funds and that the Plaintiff was merely a

namelender for the said purchase or that he being the eldest among the

brothers, it had been so purchased. First of all, said document Ext. B has

been rightly held as in admissible in evidence for the simple reason that

no foundation has been laid for bringing that document as secondary

evidence and the other reason as already stated. The relevant pleading in

the written statement providing the reference to the document Ext. B

being gone through and considered with the evidence on record; this

Court finds no reason/justification to say that the view taken by the First {{ 7 }}

Appellate Court in discarding Ext. B for giving no weightage to the

same for any purpose whatsoever is erroneous on facts and law.

9. For the aforesaid discussion and reasons, the submission of the

learned counsel for the Appellant (Defendant) that the Appeal merits

admission as it involves substantial questions of law standing to be

answered is not accepted.

10. In the result, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy