Satyaranjan Kar (Since Dead) vs Unknown
2021 Latest Caselaw 10987 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                    RSA No.78 of 2012


           In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree passed by District Judge,
     Balasore in RFA No.113 of 2003.
                                    .........

Satyaranjan Kar (since dead) & his LRs :::: Appellants.

-:: VERSUS ::-

Nanigopal Pradhan & Others :::: Respondents.

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

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             For Appellants                 ...      M/s. S.K. Das, , A.K. Otta, A.
                                                   Dhalsamanta, B.P. Dhal, S.Das, A.
                                                   Sahoo, S. Mohanty and N.K. Das,
                                                   Advocates
             For Respondents                ...      M/s. G. Mukherji, Senior
                                                   Advocate, P.Mukherji, A. Ch.
                                                   Panda, S.P. Ray, S. Priyadarsini
                                                   and S. Mishra (for Respondent
                                                   No.1& 2)

                                             ------
     PRESENT:
                      THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing: 04.10.2021 :: Date of Judgment: 27.10.2021

--------------------------------------------------------------------------------------- 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 {{ 2 }}

judgment and decree passed by the learned District Judge, Balasore in

RFA No. 113 of 2003.

By the said judgment and decree in the Appeal filed by these

Appellants under section 96 of the Code, the First Appellate Court has

dismissed the said Appeal. Thus the judgment and decree passed by the

learned Civil Judge (Junior Division), Jaleswar in T.S. No. 143 of 1994

(98/2001) have been confirmed. The suit filed by Respondent Nos. 1

and 2 as the Plaintiffs has been decreed and sale deed executed by

Respondent No. 3(defendant no.3) in favour of the Appellants

(defendant nos. 1 and 2) has been declared void, in-operate as also not

binding on the Respondent Nos. 1 and 2 (Plainfiff) and consequentially,

permanent injunction has been issued. In view of that the counter claim

advanced by the Appellants (Defendant Nos. 1 and 2) has been

disallowed.

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. Plaintiffs' case:-

The Plaintiffs namely Nani Gopal and Kamal Lochan are two

brothers. They as well as Defendant Nos. 3 to 11 belonging to one

family. They being Hindus are governed by the Mitaskhara School of

Hindu Law.

{{ 3 }}

It is stated that Siba Pradhan was the common ancestor of the

party. He had two sons namely, Ananta and Anirudha, both are dead.

The Defendant Nos. 3 to 5 namely Rabinarayan, Gouranga and Ranjit

are the sons of Ananta whereas the Plaintiffs namely, Nani Gopal and

Kamal Lochan are the sons of Gouranga, the Defendant no. 4.

Anirudha's three sons are Basanta, Hemanta and Niranjan. Basanta and

Hemanta being alive, they are the Defendant Nos. 6 and 7. Niranjan

being dead, his branch is represented by his wife Laxmipriya and two

sons namely Sanjay, Ajay and daughter called Gita who are Defendant

no. 8 to 11 respectively.

The suit land appertains to the major settlement plot No. 976 of

khata No. 390/14 ad measuring Ac.1.14 dec. and the same corresponds

to sabak plot No. 572, khata no. 66. This is in village Sahabadipur

under Bhograi Police Station. It is stated that originally the land under

sabak plot No. 572 comprising of Ac.0.32 dec. was the ancestral

property of Ananta and Anirudha. Ananta having died in the year 1948,

his three sons lived in joint mess with their uncle, Anirudha. However,

there was partition between the co-sharers in 1964 and in that partition

from the land under sabak plot No. 572. Anirudha was allotted with Ac

0.05 dec. on the western side whereas the remaining eastern side of

Ac.0.17 dec. stood allotted in favour of three sons of Ananta. It is

further stated that subsequent thereto the northern side of Ac.0.02 ½ dec.

{{ 4 }}

from out of said Ac.0.17 dec. was acquired for construction of Digha

Chandaneswar Road and thus there remained the balance of Ac.0.14 ½

dec. of land in joint possession of Defendant Nos. 3 to 5 In an amicable

partition in the year 1976 as amongst the sons of Ananta that Ac.0.14 ½

dec. of land is stated to have fallen in the share of Ranbir, the

Defendant No. 5. It is further stated that Ranbir remained in possession

of the same to the exclusion of all others being the sole owner and on

21.6.86, he sold the said land to the Plaintiffs by a registered sale deed

wherein the Plaintiffs who then being minor were represented by their

father guardian. The land was sold for a consideration of Rs.7,000/- and

the father of the Plaintiffs as their guardian took possession of the suit

land on behalf of the Plaintiffs from that Ranbir. The Defendant No. 3 to

5 decided to prepare separate record of right in the major settlement

operation in respect of their family property since there was no

document evidencing and in support of the partition, a memorandum of

partition was prepared and as per the partition since the suit land was in

the share of Ranbir, it was so indicated therein with further mention as

by then to have been sold. The Defendant Nos. 3 and 4 have signed on

that memorandum. However, during major settlement operation

although the Defendant No. 3 gave the consent to the separate recording,

the Defendant Nos. 6 to 11 did not. So separate record of right could not

be prepared and everything thus remained in joint.

{{ 5 }}

Be that as it may, the Settlement Authority as found on enquiry in

field have reflected the exclusive note of possession of the Plaintiffs in

respect of the suit land. Subsequently, in terms of the order passed by

the higher authority settlement, the suit land has been recorded in the

name of the Plaintiffs. When the matters stood thus, on 14.2.94, the

Defendant No. 3 created a sale deed in favour of Defendant No. 1 and 2

with respect of Ac.0.05 dec. towards the eastern side. Having obtained

such sale deed that the Defendant Nos. 1 and 2 created disturbance in

the possession of the Plaintiffs in so far as the suit land is concerned.

Hence, the suit.

4. The Defendant Nos. 1, 2 and 3 in their written statement have

admitted that said land of Ac.0.14 ½ dec. under C.S. Plot No. 572 was

in the hands of D.Ws. 3 to 5 in their possession and it was pursuant to

the amicable partition with their uncle Anirudha in which they had got it

in their share. They admit that there was partition between three sons of

Ananta. The dispute is raised pleading that the suit land had been equal

allotted to the three brothers and not to Defendant No. 5 to the exclusion

of others. They stated that Defendant No. 3 was in exclusive possession

of the disputed land and accordingly, he has rightly with the authority

sold to Defendant Nos. 1 and 2. With these pleadings they have also

advanced the counter claim to declare their right, title and interest over

the same and pass a decree of permanent injunction.

{{ 6 }}

5. On the above rival pleadings, the Trial court has framed ten

issues. The issue nos. 6 and 7 appear to be most important for deciding

the suit. The first one is as to whether the land measuring Ac.0.14 ½

dec. of land out of C.S. Plot No. 572 was exclusively allotted to Ranbir,

the Defenant no. 5 or not and the other one concerns with the validity of

the sale deed executed by Defendant No. 3 in favour of Defendant

Nos. 1 and 2 whichis again dependant on the first one's answer.

6. The Appeal has been admitted on the following substantial

questions of law:-

A. Whether the judgment passed by the Lower Appellate Court

can be sustained without there being formulation of any point for

determination on the ground taken in the Appeal that the Appellants

were not giving due opportunity to adduce evidence and by not

accepting the same ground observing that the provisions contained in

order 18 rule 3-A of the Code of Civil Procedure are mandatory? and

B. Whether in the face of specific stand taken by the Defendant

that the sale deed marked Ext. 4 is void on the ground that fraud has

been practising on the Registry Authority showing therein a piece of

non-existence land to confirm jurisdiction on the Sub-Registrar,

Ramnagar in the district of Midinapur in the State of West Bengal; the

courts below should have adjudicated on the validity of the sale deed?

{{ 7 }}

7. I have heard Mr. S.K. Das, learned counsel for the Appellants and

Mr. G. Mukherjee, learned Senior Counsel for the Respondent Nos. 1

and 2.

I have also carefully read the judgments passed by the Trial Court

as well as the First Appellate Court.

8. Coming to the first substantial question of law, it is seen that

although the Lower Appellate Court has not one by one noted the points

for determination taking the grounds indicated in the Memorandum of

Appeal, yet at the outset it has noted the contentions advanced during

hearing in consonance with all the grounds taken in the Appeal in

challenging the judgment and decree passed by the Trial court. All those

have been noted at paragraph-2 of the judgment more importantly, if the

Defendant Nos. 1 to 3 had been given due opportunity before the Trial

court in presenting their case in the proceeding. The Lower Appellate

Court has noted several developments taking place on different dates to

which the suit was posted for the purpose of adduction evidence by the

Defendants uptill 29.10.2003 when finally the argument being heard,

the suit stood posted for judgment. Those being elaborately disccused at

paragraph-10 of the judgment of the Lower Appellate Court it has been

held that the order passed by the Trial court in finally closing the case of

the Defendants and hearing the argument does not suffer from any {{ 8 }}

infirmity. Having said so, the Lower Appellate Court has found no such

necessity to remand the suit to the Trial court on that ground.

In dealing with that the Lower Appellate Court has also discussed

the provision of order 18 rule 3-A of the Code as also the provision of

order 17 rule 2 of the Code with the explanation as it contains. This

being the position without expressing any opinion on the merit as to

whether the final conclusion so arrived at by the Lower Appellate Court,

its judgment cannot be termed to be unsustainable for non-formation of

the point for determination on the said ground taken in the Appeal.

Having said as above, since the matter relates to deprivation of

opportunity to a party to adduce evidence; this Court feels it proper in

the interest of justice to examine the sustainability of the ultimate

conclusion arrived at by the Lower Appellate Court. For the purpose the

progress of the hearing of the suit being trekked; it is seen that the

Plaintiffs from their side first examined Plaintiff No. 1 as the witness.

This being made on 9.10.2002, their next witness P.W. 2 was examined

on 13.11.02. Thereafter two more witnesses from their side were

examined on 27.11.02. P.W. 4 being further re-examined, the

Defendants cross-examined him and were provided full opportunity on

that score. They again when prayed to recall P.W. 4 for further cross

examination that has also been allowed and it was completed on

2.9.2003. As noted by the Lower Appellate Court and also verified at {{ 9 }}

this level, the deposition of this witness runs into twenty (20) pages. The

record reveals that the Trial court has also given liberal adjournments in

the matter. However, finally on 8.9.2003 the Defendants examined their

first witness and then the next one on 29.9.2003. Thereafter the

Defendants sought for adjournment which was also granted till 2.10.03.

On that date again adjournment was sought for. So, the Defendants were

allowed further chance to tender the evidence on 29.01.2003. However,

on that day, no further step was taken and the evidence from the side of

the Defendants being closed, the order was passed by the Trial court in

closing the evidence from their side whereafter argument was heard and

the suit was posted for judgment. The Lower Appellate Court most

importantly has noted that the Plaintiff's evidence being closed, several

adjournments have been granted to the Defendants to produce their

witness and adduce further evidence. In that situation, referring to the

explanation of order 17 rule 2 of the Code, it has been said that the court

below has rightly proceeded further in the suit in disposing it by passing

the judgment.

9. It is the settled position that Rule 2 and 3 of Order 17 of the Code

provide for distinct and different sets of circumstances. Rule 2 applies

where an adjournment has been generally granted and not for any

special purpose, whereas Rule 3 applies where the adjournment has been

given for one of the purposes mentioned in said Rule 3. When Rule 3 {{ 10 }}

empowers the Court to decide the suit forthwith, Rule 2 speaks of

disposal of the suit in one of the modes specified. Rule 2 does not apply

unless the party has failed to appear at the hearing whereas Rule 3 will

apply where the party appears, but has committed default as referred to

in said rule. It has also been held in several cases that even where a party

is physically present in Court but refuses to take part in the proceeding

after his application for adjournment is refused, he cannot be said to

have appeared at the hearing, so as to being the matter within Rule 3 of

Order 17 of the Code. Even where a party to whom time had been

granted at his instance for doing one of the acts mentioned in Rule 3 of

Order 17 but he fails to do the same, and also does not appear at the

hearing of the suit, then the court should proceed only under Rule 2.

(Ref:- M/s. Radhika Engineering Industries vs. M/s Hindustan

Aeronautics Ltd, Koraput Division, 1993 (II) OLR 37).

10. In the given case, when the Defendants having adduced evidence

by examining two witnesses and having taken several adjournments for

the purpose of adducing further evidence have failed to do so, in that

situation, the Trial Court having not condoned the default having the

tendency to drag on the hearing of the suit at the whims of the

Defendants, this Court is not in a position to say that there was

unreasonable denial of the opportunity to the Defendants in taking part {{ 11 }}

in the hearing. In view of all these above, this Court finds no fault with

the Trial court in disposing the suit on merit.

11. Taking note of the rival case projected by the parties when it is

seen that pivotal issue in the suit is as to if the suit land was exclusively

allotted to the share of Ranjit, the Defendant No. 5 or was in possession

of Defendant Nos. 3 to 5, this Court feels it proper to examine the

sustainability of the same first within the scope of this Appeal before

taking up the exercise in order to find out the answer to the second

substantial question of law. It is therefore to be seen whether the finding

recorded on that issue is the outcome of perverse of appreciation of

evidence on record or not. It is borne out from the sale deed dated

14.2.94 that Rabindra D.W. 3 has also sold lands other than the suit land

to the Defendant No. 1. In that year 1994, as per the settlement record,

the Defendant No. 5 was the recorded tenant in respect of the suit land.

In that memorandum of partition, Ext. 11, the Defendant No. 3 is a

signatory along with Defendant Nos. 4 and 5. The evidence on record go

to show that the said document Ext. 11 was produced during the

settlement operation and at one stage, this Defendant No. 3 had also

given his consent for recording of the suit land in the name of the

Plaintiffs who claim to have purchased the suit land from Defendant No.

5 by registered sale deed Ext. 4 which finds mention in the description

that the land had fallen to the share of Defendant No. 5 and so was being {{ 12 }}

sold. Another sale deed Ext. 10 further reveals that the Defendant No. 3

had purchased the land from Defendant No. 5 by accepting and

recognizing the fact that said land which he purchased was in the

exclusive share of Defendant No. 5. In such state of affair in evidence,

when the vendor of Defendant Nos. 1 and 2 i.e. Defendant No. 3 has

gone to purchase some land from Defendant No. 5 accepting his

exclusive right to be there over the said land having fallen in his share,

the present challenge denying the factum of partition is certainly

untenable. Furthermore Ext. 8 another certified copy of the khatian

when indicates the recording of other land in favour of Defendant No. 3,

the same stands to support the case of the Plaintiffs that the land in

question had fallen in the share of Defendant No. 5 in the partition

which they purchased. Such conduct of the Defendant No. 3 who is the

so called vendor of the suit land which is claimed by Defendant Nos. 1

and 2 to have been so purchased from Defendant No. 3 as the vendees

and which is projected as the foundation of the claim of Defendant Nos.

1 and 2 has to be whittled down. The courts below having answered this

important issue in favour of the Plaintiffs as the conclusion does not

suffer from the vice of perversity, are not found to have committed any

error.

12. This now takes us to the second substantial question of law. The

Defendants have taken a stand that Ext. 4 which is the base of the claim {{ 13 }}

of the Plaintiffs is void as the same had been obtained by practicing

fraud upon the Registering Authority. It is their case that in order to

clothe the jurisdiction for the purpose of registration of the sale deed

Ext. 4 upon the Sub-Registrar, Ramnagar in the district of Midinapur in

the State of West Bengal, a piece of land stating to have been situated

under the jurisdiction of that Sub-Registrar has merely been mentioned

although the same does not exist in field.

13. The law on the score has been settled by catena of decision of the

Hon'ble Apex Court as well as this Court that initial burden of proof

that such piece of land finding mention in the document was only to

confer the jurisdiction upon that Sub-Registrar lies upon the party who

claims to declare the sale deed invalid on that ground. The party so

challenging the sale deed has to discharge the said burden of proof

through acceptable evidence that either said land did not then exist or it

did not belong to the vendor and was not in his hands or that there was

absolutely no intention to sell that land of which the vendees have not at

all taken the benefit of in any manner. No such evidence being so

piloted from the side of the Defendants and as the said initial burden of

proof has not been discharged by the Defendants, occasion had not so

arisen for the Plaintiffs to dispel the shifted onus of proof as on that fact,

the lower Appellate Court appears to have rightly repelled that

contention at the threshold.

{{ 14 }}

The discussions made above accordingly provide the answers to

the substantial questions of law which run against the Appellants.

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

(D. Dash), Judge.

Aksethy