Jagabandhu Tarai vs Srimati Tanty & Others
2023 Latest Caselaw 13476 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          R.S.A. No.382 of 2016
      In the matter of an Appeal under Section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 28.06.2016 & 11.07.2016
respectively passed by the learned District Judge, Sundargarh in R.F.A.
No.10 of 2015 confirming the judgment and decree dated 25.11.2014 &
02.12.2014 respectively passed by the learned Civil Judge, Senior Division,
Sundargarh in C.S. No.85 of 2011.
                                 ----

     Jagabandhu Tarai                      ....           Appellant


                               -versus-

     Srimati Tanty & Others                ....        Respondents

              Appeared in this case by Hybrid Arrangement
                       (Virtual/Physical Mode):


             For Appellant     -     M/s. Sudheer Ku. Sahoo, S.S. Chaini
                                     (Advocates)

         For Respondents -           -------
CORAM:
MR. JUSTICE D.DASH

DATE OF HEARING :12.10.2.2023 :: DATE OF JUDGMENT:01.11.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the common judgments and decrees dated 28.06.2016 & 11.07.2016 respectively passed by the learned District Judge, Sundargarh in R.F.A. No.10 of 2015.

The present Respondent No.1 as the Plaintiff had filed Civil Suit No.85 of 2011 in the Court of Civil Judge, Senior Division, Sundargarh

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arraigning the Appellant as the Defendant No.3 and Respondent No.2 and 3 as the Defendant No.1 & 2 respectively. The suit was filed for declaration of right, title, interest of the Respondent No.1 (Plaintiff) over schedule 'A' land and for permanent injunction against the Appellant and Respondent No.2 and 3 (Defendants) from interfering in her peaceful possession over the suit land and also to declare the registered sale deed executed by Respondent No.2 & 3 (Defendant No.1 & 2) in favour of the Appellant (Defendant No.3) as null and void and not binding on the Respondent No.1 (Plaintiff). The suit was decreed in its entirety. The present Appellant (Defendant No.3) being aggrieved by the said judgment and decree passed by the Trial Court carried the Appeal under section 96 of the Code. Simultaneously, the Respondent No.2 & 3 (Defendant No.2 & 3) also carried another Appeal under section 96 of the Code. Both these Appeals having been heard and disposed of by the First Appellate Court by passing the common judgment followed by the decree, the First Appellate Court has dismissed both the First Appeals. Hence the present second Appeal is at the instance of the Appellant-Defendant No.3 being under the sufferance of the judgments and decrees passed by the Trial Court as well as the First Appellate Court.

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 Suit.

3. Plaintiff's case is that the suit land in schedule 'A' of the plaint of which schedule 'B' is a part stands recorded in the name of her husband namely Baijal Urmal @ Tanti, son of Ganjia Urmal @ Tanti. It is stated that her husband was all along in possession of the said property till his death and thereafter, the Plaintiff having stepped into the shoes of her husband is in

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possession of all his landed property including the suit land without any disturbance from any quarter.

The Defendants are no way in related to the Plaintiff. The Defendant No.1 & 2 having no right, title interest over the property in suit in a clandestine manner sold the land in schedule 'B' of the plaint, which is a part of schedule 'A' land in favour of Defendant No.3 by executing a registered sale deed on 14.12.2010 for a consideration of Rs.1,10,000/-. It is stated that said transaction was behind the back of the Plaintiff and it was wholly a fraudulent one in order to grab the property of the Plaintiff, who is an old widow.

4. The Defendants while traversing the plaint averments have pleaded that the land under sabik khata no.193 measuring in total AC 0.42 decimal was recorded in the name of Gajani @ Ganjia Ganda Jaijnada. Said Gajani @ Ganjia Jaijnada was also known as Dhansingh Ganda @ Urmal. Ganjia had three sons, namely, Kumar, Ujal and Baijanath, who after the death of Ganjia possessed the suit land. There was no partition of the joint family property amongst themselves but they were possessing some land each for convenience. Baijanath @ Baijal was having no son or daughter and therefore, he had adopted Mahendra, the son of his brother, namely, Ujal and treated him as such. Said Mahendra when was taken in adoption, was a boy of 8 years. He was handed over by his natural father Ujal to his adopted father Baijal. It is stated that such giving and taking ceremony had taken place sixty eight (68) years before the suit and the persons who had witnessed such giving and taking ceremony are all dead. It is further stated that Mahendra being treated as the son of Baijal had performed of all his duties and responsibilities as such. On the death of Bijal that Mahendra succeeded all his properties including the suit property. The Plaintiff is said

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to be not the married wife of Bijal and it is said that she had never possessed the suit land. It is stated that in spite of joint possession of land by all the legal heirs of Ganjia Ganda, the Settlement Authority have erroneously recorded the suit land solely in the name of Baijal. But despite that recording, the land was never treated to be the exclusive property of Baijal and rather, it was all along treated as the joint family property and accordingly, it is now also so treated and possessed. The Plaintiff was never in possession of the suit land. The Defendant No.1 & 2 after the death of Mahendra having inherited the property of Baijal are in possession of the same as its owners. While thus possessing the suit land, they have sold the same to Defendant No.3 as they were in need to be met.

The Defendant No.1 & 2 have admitted to have executed the sale deed and registered it as also to have received the agreed consideration. They state that pursuant to the said sale, the Defendant No.3 had been delivered with the possession of the suit land and he now possesses the same as its owner. It is asserted that the Plaintiff is not the owner of the said property nor has ever remained in possession of the same.

5. On the above rival pleadings, the Trial Court framed as many as six (6) issues. Upon examination the evidence let in by the parties and their appreciation in the backdrop of the rival pleading, the Trial Court has held that Mahendra was never adopted by Baijal and the Plaintiff is the widow of Baijal Urmal @ Tanti and has, therefore succeeded to the property of her husband Baijal Urmal. It has then held that the Defendant No.1 & 2 having failed to prove that the suit land is their ancestral property, the sale deed executed by them in favour of Defendant No.3 has no value in the eye of law to be given effect to. With such finding, the suit stood decreed.

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6. In the First Appeal, since the above two Appeals findings rendered by the Trial Court were attacked by the Appellant as well as the Respondent No.2 & 3. The First Appellate Court keeping in view the rival pleadings upon examination of the evidence and their evaluation at its level, independently has arrived at the same finding as that the Trial Court had returned. Thus affirming the findings of the trial Court, both the First Appeals have been dismissed.

7. Learned counsel for the Appellant (Plaintiff) submitted that when the Plaintiff has not proved any document to establish her status as the widow of late Baijal nor there is any satisfactory evidence on that score. According to him, the Courts below have gone completely wrong in relying upon the solitary version of the plaintiff and according to him, it is perhaps showing some sympathy for an old woman aged about 80 plus. He submitted that the findings of the Courts below even though concurrent with regard to the status of the Plaintiff that he is the wife of Baijal with the available evidence on record, such finding when tested in the backdrop of the rival pleadings would certainly appear to be perverse. He submitted that the Courts below have gone wrong in finding that the Plaintiff was in possession of the property in question. According to him, the Courts below have unjustifiedly put the evidence of the Defendants to test as to whether the case led by the Plaintiff has been disproved as they claim when it would have been the other way round. He, therefore urged for admission of this Appeal to answer the above as the substantial questions of law.

8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings placed by the learned Counsel for the parties in course of hearing.

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9. The Courts below have held the Plaintiff to be the widow of Baijal, the recorded owner of the suit land. They have also held that Mahendra, the father of Defendant No.1 and husband of Defendant No.2 was not the adopted son of Baijal. It having been found that the property in suit is the exclusive property of Baijal, the Plaintiff being her widow is said to have inherited the same and accordingly, it has been made enough to grant her the reliefs as prayed for. Consequently, it has been held that the sale deed executed by Defendant No.1 & 2 covering the suit land in favourof Defendant No.3 is void as the Defendant No.1 & 2 had no right, title and interest over the suit land to transfer the same in favour of Defendant No.3.

10. A careful reading being given to the judgments of the Courts below as regards the discussion of evidence on the competing claim of status of Plaintiff and Mahendra and as such the inheritance of the proeprty in suit, it is seen that the Courts below have rightly examined the evidence of the Plaintiff to ascertain as to whether she stands on her own or not. Analysing the evidence of the Plaintiff (P.W.1) in great detail, which have mostly remained unshaken and not shown to be false by leading counter evidence, the conclusive finding of the Courts below is that Baijal is the exclusive owner of the entire land. At this stage, the prevaricating stands of the Defendants have to be kept in mind. At one's stage, they say that Baijal was not the exclusive owner of the property then it is stated that Plaintiff is not his widow and as such the sole legal heir to succeed to her property and the last but not the least plea is that Mahendra was the adopted son of Baijal. Although, it is permissible for a party to suit to take alternative stands but in the present case one stand of the Defendants appears to be just opposite to the other. This pleadings of the Defendants appear that those are aimed to non-suiting the Plaintiff first attacking her status and secondly asserting

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their own status as to inherit the property and thirdly to non-suit the Plaintiff on the ground that the property is not the exclusive property of Baijal and therefore, suit is not maintainable.

11. The record of right relating to the suit land has been admitted in evidence and marked Ext.1. The land measuring Ac.4.31 decimal stands in the name of Baijal Urmal @ Tanti. The Plaintiffs has stated that her father- in-law was the village Chowkidar and after his death, her husband became Chowkidar and when the eldest son of her father-in-law did not agree to work as Chowkidar, her husband was selected and accepted to do the job and finally, Government allotted the said land to her husband. Such evidence having remained unchallenged, this Court finds no such reason or justification to disagree with the view taken by the Courts below that Baijal was the exclusive owner of the property.

The evidence as to the claim of Defendants that Mahendra was the adopted son of Baijal appears to have not at all been proved and the evidene let in by the Defendants are found to be wholly deficient. This Court is unable to find out any such perversity therein. The D.W.1 has been examined as Defendant No.1 whereas D.W.2 is the Defendant No.3. it has been stated in clear terms by D.W.1 that he had consulted the Plaintiff for giving her consent for the said sale which the Plaintiff had denied. Therefore, the Courts have strongly inferred that had the Plaintiff been a stronger, there was no necessity at all for she being asked to give her consent for such transaction. In that view of the matter, keeping in view the available evidence on record, when the courts below have returned the findings as regard the status of the Plaintiff as the widow of Baijal and to have inherited the property left by Baijal, this Court is not in a position to find out any infirmity much less, any perversity. For the aforesaid

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discussion, the submission of learned counsel for the Appellant (Defendant No.3) cannot be countenanced with. Thus this court finds that no substantial question of law arises for being answered in this Appeal meriting its admission.

12. In the result, the Appeal stands dismissed. There shall however, no order as to cost.

(D. Dash), Judge.

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 02-Nov-2023 12:50:42

R.S.A. No.382 of 2016