Orissa High Court
Shankarsan Sahay vs Urmila Sahay And Others on 3 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.94 Of 2021
(Through video conferencing mode)
Shankarsan Sahay .... Appellant
Mr. D.K. Pradhan, Advocate.
-versus-
Urmila Sahay and others .... Respondents
CORAM: JUSTICE ARINDAM SINHA
ORDER
Order 03.02.2022
No.
1. 1. Mr. Pradhan, learned advocate appears on behalf of appellant
and submits, his client filed suit for declaration of title and possession
over suit schedule-B property. His client deposed at trial but
defendants did not. Even then the trial Court dismissed the suit on
purported appreciation of facts. The dismissal was confirmed by the
first appellate Court. Concurrent judgments of dismissal of suit gives
rise to substantial questions of law involved, for admission of this
appeal.
2. He submits further, his client is son of late Gouri Shankar
Sahay and his second wife. His father had two brothers. There was a
partition suit, in which neither his client nor his mother was made
party. As a result in the suit, certain properties came to the share of
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late Rukmani Devi, who was stepmother of his client being first wife
of his client's father. There was erroneous appreciation of evidence in
laying emphasis on appellant's omission to produce sabik RoR
establishing tally between land mentioned therein and land allotted to
late Rukmani Devi in the partition suit. This emphasis was misplaced
since appellant should have been given benefit of adverse
presumption, on defendants omission to take the box. Therefore,
plaintiff's evidence ought to have been accepted as uncontroverted.
3. It appears from judgment of the trial Court that in dealing with
the suit it said and reiterated that there was no issue framed regarding
appellant being son of late Gouri Shankar Sahay through his second
wife. Issues arise on variance of pleadings. As such, it can be
presumed that there was no dispute raised in the suit on appellant
being the son of late Gouri Shankar Sahay.
4. The first appellate Court in its judgment referred to provisions
in section 15 and 16 of Hindu Succession Act, 1956. Thereupon the
Court said, inter alia, as follows.
"The plaintiff is the legal heir of the husband
of Rukmani Devi being the son of his second wife.
Even if the property allotted in favour of Rukmani
Devi in T.S. No.10/1973 is treated as her exclusive
property, after her death the plaintiff being the only
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legal heir of Gouri Shankar Sahay shall succeed to
the said property and the property described as per
the Sabik ROR is to devolve in favour of the plaintiff
U/s. 15 (1)(b) of the Hindu Succession Act, 1956.
Therefore there is no need on the part of the plaintiff
to challenged the judgment and decree passed in
T.S. No.10/1973, as the lands allotted in favour of
Rukmani Devi devolves in his favour in the event of
death of Rukmani Devi, in absence of any other
legal heir."
5. This Court does not find any substantial question of law
involved in the appeal for its admission. However, it is necessary to
reiterate that there was no issue decided between the parties regarding
plaintiff's claim of being son of late Gouri Shankar Sahay through his
second wife. The first appellate Court has also observed regarding
plaintiff being successor of late Rukmani Devi, in respect of the suit
schedule land falling in her share as a result of the partition. This is
because late Rukmani Devi died issueless. As such appellant has
benefit of constructive res judicata on his claim of being the son of
late Gouri Shankar Sahay and successor of late Rukmani Devi.
6. With above observations, the appeal is dismissed.
(Arindam Sinha)
Judge
Sks
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