Sadan Khadi & Another vs Lokanath Khadi & Others
2023 Latest Caselaw 8663 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                       S.A. No.401 of 1999

  Sadan Khadi & Another                   ....            Appellants
                                           Ms. J. Sahoo, Advocate



                               -Versus-


  Lokanath Khadi & Others                 ....           Respondents

None CORAM:

JUSTICE R.K. PATTANAIK

DATE OF JUDGMENT:07.08.2023

1. Instant appeal under Section 100 of the Civil Procedure Code, 1908 is at the behest of the appellant assailing the impugned judgment and decree dated 21st September, 1999 promulgated in Title Appeal No.6 of 1998 by the learned Civil Judge (Senior Division), Jeypore, Koraput, whereby, the decision of learned Civil Judge (Junior Division), Jeypore in T.S. No.23 of 1993 was reversed and dismissed the suit as a result.

2. The appellants as the plaintiffs instituted the suit in T.S. No.23 of 1993 for partition of the suit schedule property in two equal halves and allot each to them and respondent Nos.1 and 2 (defendant Nos.1 and 2) and to declare that defendant Nos.3 to 7 (respondent Nos.3 to 7) having no right, title and interest over the same. As per the appellants, the subject in question to be the ancestral property and in so far as the interest of defendant No.3 (respondent No.3) is concerned, he being an outsider is not entitled to any share despite the fact that it stands recorded jointly. In other words, respondent Nos.3 to 7 challenged the

Sadan Khadi & Another and Lokanath Khadi & Others

claim of appellants with a defence that the suit schedule properties are not ancestral in nature, inasmuch as, an extent of Ac.7.98 decimals was sold to respondent No.3, whereas, the remainder Ac.8.61 decimals, the same was also acquired by them. The possession of the property in respect of which the appellants claimed partition was also challenged by respondent Nos.3 to 7. Considering the pleadings of the parties, the learned Civil Judge (Junior Division), Jeypore framed as many as seven issues and finally decreed the suit in favour of the appellants preliminarily with a declaration that respondent Nos.3 to 7 have no title vis-à- vis the schedule properties which are the joint family interest of the appellants and respondent Nos.1 and 2. Being aggrieved, respondent Nos.3 to 7 challenged the above decision in Title Appeal No.6 of 1998 which was allowed on contest. In other words, the judgment and decree of the Trial Court was set aside and the suit for partition was dismissed. The said judgment in appeal is in question at the instance of the appellants.

3. Heard Ms. Sahoo, learned counsel for the appellants. But, none appeared for the respondents.

4. This Court by order dated 19th January, 2000 formulated the substantial questions of law which are as follows:

(i) Whether the finding of the learned Lower Appellate Court that the suit schedule properties not to be joint family interest of the plaintiffs (appellants) is perverse being contrary to the evidence?

(ii) Whether the findings of the learned Appellate Court are illegal being an error apparent on the face on record?

5. The undisputed facts are that originally the suit holding consisted of Ac.18.64 decimals and respondent No.3 purchased land out of the same under two sale deeds executed in 1955 and 1959 under Exts. B & C. It is also admitted that the land purchased

Sadan Khadi & Another and Lokanath Khadi & Others

by respondent No.3 from the father of the appellants have been duly recorded in his name with a separate holding bearing No.11/5 marked in evidence as Ext. D corresponding to Holding No.44 (Ext. F) of the current settlement. It is also not in dispute that respondent No.3 or for that matter, respondent Nos.4 to 7 do not belong to the family of the appellants and respondent Nos.1 and 2. The Trial Court after having taken cognizance of the sale deeds, such as, Exts. B & C reached at a logical conclusion that the interest so sold out of the holding was the ancestral properties of the appellants and respondent Nos.1 and 2 and in so far as the respondent No.3 is concerned, he paid rents only for the land purchased by him. It was held that respondent No.3 or respondent Nos.4 to 7 is not related to the appellants and respondent Nos.1 and 2 and they have no any right or interest over the suit properties and finally on dismissing the plea of adverse possession, decreed the suit for partition. The learned Appellate Court, however, was not inclined to accept the finding that it was ancestral interest of the appellants and hence, declined to decree partition in respect thereof and consequently, dismissed the suit and not only that, the request for additional evidence in terms of Order XL Rule 27 C.P.C. sought to be introduced by respondent Nos.3 to 7 was rejected. Since the appellants failed to establish title over and in respect of the suit schedule properties by claiming it to be ancestral, the appeal was allowed by the Lower Appellate Court.

6. Admittedly, Exts. B & C relate to the land purchased by respondent No.3 from the father of the appellants. After such purchase, respondent No.3 mutated the land sold and purchased and obtained the Record of Right Ext. D. As far as the dispute between the parties are concerned, it is confined to the suit schedule properties with stand jointly recorded with the father of

Sadan Khadi & Another and Lokanath Khadi & Others

the appellants and respondent No.3 as evident from Ext. 2. The status of the parties, as earlier mentioned, has not been disputed which means they do not belong to one family. It is admitted that the appellants and respondent Nos.1 and 2 are the successors of a family and not respondent No.3, who is succeeded by respondent Nos.4 to 7. In so far as the land sold by the appellant's father to respondent No.3 is concerned, it was by virtue of Exts. B & C and in such view of the matter, the same is not the subject of partition. As per the pleading of the appellants, the partition is rather confined to the suit schedule properties so recorded jointly between the father of the appellants and respondent No.3 under Ext. 2. The claim of respondent Nos.3 to 7 that the suit land has also been purchased earlier is not substantiated by any evidence. Rather Ext. 2 reveals that the land is jointly recorded under Khata No.8 and in respect of Plot No.67, 69, 71, 73, 75 and 81 measuring an area of Ac.8.61. In such view of the matter, it is not really proved and established by any means that the properties in question to be ancestral and belong to the appellants and respondent Nos.1 and 2 only excluding respondent No.3 in view of Ext. 2.

7. The learned Lower Appellate Court held that merely a joint recording with respondent No.3 by itself is not sufficient. On the other hand, it rejected the ancestral nature of the suit schedule properties and rather believed the possession of the same with respondent No.3 and his successors considering the rent receipts marked as Exts. E/15 to E/42 paid since 1960 till the current settlement. In fact, respondent Nos.3 to 7 had moved the learned Lower Appellate Court to introduce additional evidence in terms of Order XL Rule 27 CPC to admit the original Hal Record of Right in respect of holding No.43 to show that land left after sale deed executed under Exts. B & C stands jointly recorded in the

Sadan Khadi & Another and Lokanath Khadi & Others

names of appellants father and respondent No.3. Having considered the pleadings on record and evidence led by the respective parties, it appears that apart from the land sold under Exts. B & C and settled with respondent No.3, the suit schedule properties though claimed to have been acquired by respondent No.3 but it stands jointly with the father of the appellants and respondent No.3 which is revealed from Ext. 2.

8. The contention of Ms. Sahoo, learned counsel for the appellants is that the recitals of Exts. B & C to the effect that the land sold thereunder to be ancestral and therefore, the suit schedule properties are of similar nature was not accepted by the Trial Court so also the Lower Appellate Court which erroneously interpreted Section 32(2) of the Indian Evidence Act with a conclusion that the statement of the father of the appellants contained therein to be inadmissible as no evidence was so received from the side of contesting defendants or their predecessor-in-interest. No doubt, the recitals in Exts. B & C do claim the land sold in favour of respondent No.3 to be ancestral but it stands negated in view of Ext. 2. Ms. Sahoo, learned counsel for the appellants refers to a decision of this Court in Padmalav Mishra Vrs. Srimati Fula Dei and Others reported in 31 (1965) CLT 632 which is in respect of admissibility of an entry made in a document nomenclatured as 'Hato Chitha'. In the aforesaid context, it was held that such entry in the alleged document would be admissible under Section 32(2) of the Indian Evidence Act. In the case at hand, however, exclusive interest of the appellants along respondent Nos.1 and 2 could not be established and furthermore, the suit schedule properties stood recorded jointly along with respondent No.3. Of course, the law is well settled that mere entries in Record of Right do not create or extinguish title. However, having regard to the evidence in

Sadan Khadi & Another and Lokanath Khadi & Others

entirety, the Court is of the considered view that the exclusive interest vis-à-vis the suit schedule properties in favour of the appellants and respondent Nos.1 and 2 could not be satisfactorily established by evidence, rather, it is inconsistent. In so far as the plea of adverse possession advanced by respondent Nos.3 to 7 before the Trial Court is concerned, it could not be proved either. Having found that there is joint recording of the suit schedule properties, claiming acquisition of adverse title as against the appellants and respondent Nos.1 and 2 is again impermissible unless a case is made out. Nevertheless, the claims for partition of the appellants in respect of the suit schedule properties, though based on different reasons, was rightly disallowed by the learned court below and hence, it calls for no interference and consequently, the substantial questions of law are answered accordingly.

9. In the result, the appeal stands dismissed.

(R.K. Pattanaik) Judge

TUDU

Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 10-Aug-2023 10:57:59