Bishnu Majhi; And vs Raidhar Majhi & Others
2023 Latest Caselaw 14386 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          R.S.A. No.422 of 2017
    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment & decree dated 24th
    August, 2017 and 8th September, 2017 respectively passed by the
    learned Additional District Judge, Kantabanji in R.F.A. No.19/25
    of 2014-16 confirming the judgment & decree dated 27th
    September, 2014 and 27th October, 2014 respectively passed by the
    learned Civil Judge (Senior Division), Kantabanji in C.S.
    No.136/130 of 2008-13.
                                     ----

        Bishnu Majhi; and                   ....         Appellants
        Nilakantha Majhi

                                 -versus-

        Raidhar Majhi & Others              ....       Respondents

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

                For Appellants   -      M/s.Prasanta Ku. Nayak,
                                        A.K. Mohapatra, S.S. Mishra and
                                        S.Dash, (Advocates)
                For Respondents -
   CORAM:
   MR. JUSTICE D.DASH
   Date of Hearing :02.11.2023      : Date of Judgment:13.11.2023

D.Dash,J. The Appellants, by filing this Appeal under Section 100 of

the Code of Civil Procedure, 1908 (for short, 'the Code'), have

assailed the judgment & decree dated 24th August, 2017 and 8th

September, 2017 respectively passed by the learned Additional

District Judge, Kantabanji in R.F.A. No.19/25 of 2014-16.

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The Respondent No.1, as the Plaintiff, had filed C.S.

No.136/130 of 2008-13 in the Court of the learned Civil Judge

(Senior Division), Kantabanji seeking declaration of the WILL

dated 05.02.19685 (Ext.F) as void and for further declaration of his

right, title and interest over the suit land and permanent

injunction against Defendant Nos.1 & 2.

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:-

One Jabar Majhi was the Goiuntia of Village-Rengali and he

had been allotted some Gounti land, which stood recorded in his

name in the Holding No.13 of 1936 settlement. Jabar died in the

year 1956 leaving behind his widow Sukrabari Majhi, who was

then carrying the child of about four months. The Plaintiff is son

of Jabar born after the death of Jabar. After the death of Jabar, his

wife possessed the entire Gounti land and being a widow when

she was unable to manage the land, she took the help of her

nephew Dhubal Majhi for cultivation of the lands. For such

service of Dhubal, the widow of Jabar had given him 8 to 9 acres

of land from out of the Gounti land, which was exclusively

recorded in his name under Holding No.26 of 1975 settlement.

The rest Gounti land was recorded in the name of Sukrabari in

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Holding No.69. In course of time, the Plaintiff grew up and he

along with his mother Sukrabari cultivated the land under

Holding No.69. In the year 1976, Sukrabari died. Dhubal died

much thereafter in the year 1993. The Plaintiff, being the sole legal

heir and successor of Jabar and Sukrabari, possessed the suit land

under Holding No.69. The Plaintiff, being in need of money, on

26.05.1981, sold Ac.2.24 decimals of land in favour of one Godtia

Majhi (Defendant No.3) by a registered sale deed. The said land

was mutated in the name of the purchaser (Defendant No.3), who

is now possessing the same by paying the land revenue to the

State. It is stated that like all other years, in the agricultural

season of 2008, the Plaintiff had cultivated the land under that

Holding No.69 by raising paddy crops. When the matter stood

thus, it came as a surprise to him in the month of October when

he had been to the local Revenue Inspector's Office to pay the

land revenue for the land in his occupation as its owner, when he

learnt that the same has been mutated in the name of Defendant

No.1. On verification, it was found on the basis of the WILL dated

05.02.1968 (Ext.F), being projected by him to have been executed

by Sukrabari, the Defendant No.1 has got the suit land mutated in

his name in Mutation Case No.290/1115 of 20070

The Plaintiff claims that Sukrabari had never executed any

WILL during her life time. The WILL, basing on which the

Defendant No.1 has got the land mutated in his name is a forged

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and fabricated document with a view to grab the entire suit land.

It is stated that said document was created by Dhubal. The

Plaintiff then filed Mutation Appeal No.1 of 2008, which was

allowed and the order of mutation passed by the original

authority was set aside. Accordingly, the record of right was

corrected. However, on 23.11.2008, the Defendant No.1

challenged the title of the Plaintiff over the suit land for which the

suit came to be filed.

4. The Defendant Nos.1 & 2, in their written statement,

without disputing the fact that Jabar was the Gountia of Village-

Rengali and the land under Holding No.13 was his Gounti land

and also not disputing Sukrabari to be the wife of Jabar and the

death of Jabar to have taken place in the year 1956, have,

however, denied the sonship of the Plaintiff in stating that the

Plaintiff is not the son of Jabar. According to them, after the death

of Jabar, as Sukrabari was then young, she developed elicit

relationship with one Markand Majhi and out of the said

relationship, Sukrabari conceived and the Plaintiff was born in

the year 1965. It is further stated that after the birth of the

Plaintiff, since the family members protested to that elicit

relationship between Markand and Sukrabari; Markand,

snapping with his relationship with Sukrabari, got married to

another. It is further stated that their father was not cultivating

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the land of Sukrabari in order to help Sukrabari. According to

them, Jabar died at an early age and Dhubal, who happens to be

the nephew of Sukrabari, was helping Sukrabari at the time of her

need. Since the Plaintiff was not the son of Jabar, Sukrabari,

anticipating her death, in order to avoid future dispute in relation

to the properties, had voluntarily executed the WILL on

05.02.1968 in presence of the witnesses. After the death of

Sukrabari in the year 1976, Dhubal, being the absolute owner,

possessed the entire suit land under Khata No.69 openly,

peacefully and continuously to the knowledge of the Plaintiff till

his death in the year 1992 and thereafter, the Defendant No.1,

being his successor, has been possessing the same as before. It is

further stated that the registered sale deed dated 26.05.1981

executed by the Plaintiff in favour of Defendant No.3 is a sham

transaction and has never been acted upon in as much as that

there has been no delivery of possession of the suit land by the

Plaintiff to Defendant No.3 and accordingly, he is not in

possession of the same. It is next stated that the Plaintiff was

having no salable right over the suit land and, therefore,

Defendant No.3 has derived no title under that sale deed. The

sale deed is stated to be void and not binding on Defendant Nos.1

& 2.

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They denied that the land under Holding No.26 was given

by Sukrabari to Dhubal in lieu of his service. Rather, they assert

that the said land was purchased by Dhubal from Sukrabari

paying valuable consideration under a registered sale deed. One

Damayanti Majhi was the legally married wife of Dhubal and

Defendant No.1 was born out of that wedlock whereas Defendant

No.2 is the son of Dhubal through Belamati with whom he had

the illicit relationship. Dhubal, during his life time, had allotted a

portion of land out of Holding Nos.26 and 27 in favour of

Defendant No.2. So, during mutation of the suit land in the name

of Defendant No.1, no objection was raised. It is further stated

that against that order of mutation of the land in their favour,

when the Appellate Authority, being moved by the Plaintiff, has

set aside the mutation order, the matter has been taken to this

Court by carrying a writ petition, which has been numbered as

W.P.(C) No.12574 of 2009.

The Defendant No.1 has filed a counter-claim seeking

declaration that the registered sale deed dated 26.05.1981

executed by the Plaintiff in favour of Defendant No.3 is null and

void and for declaration of his right, title and interest over the

suit land, which includes the land covered under the registered

sale deed dated 26.05.1981 as also confirmation of his possession

over the same and permanent injunction.

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5. The Defendant No.3, in his written statement, has asserted

the Plaintiff to be only son of Sukrabari and as such, he is the only

legal heir and successor of Sukrabari. It is said that the Plaintiff,

while possessing the said land, has sold the same in his favour for

valuable consideration and he, having been delivered with the

possession of the sold land to him, is continuing to possess the

same and, therefore, has the right, title, interest and possession of

the suit land, being its owner by virtue of his purchase from the

Plaintiff.

6. The Plaintiff, in the written statement to the counter-claim

filed by Defendant No.1, has reiterated the facts, which have been

averred in the plaint.

7. The Trial Court, on the above rival pleadings, sitting over to

decide the suit and counter-claim, has framed as many as ten

issues, which read as under:-

"i. Whether the suit is maintainable?

ii. Whether the plaintiff has any cause of action for the suit?

iii. Whether the plaintiff was born in the year 1956 and is the son of Jabar Majhi or he was born in the year 1965?

iv. Whether the willnama dated 05.02.1968 said to have been executed by Sukrabari in favour of Dhubal Majhi is valid and genuine?

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v. Whether the suit is barred by limitation? And

vi. Whether the plaintiff is entitled to the reliefs?

vii. Whether the counter claim is maintainable?

viii. Whether there is any cause of action for the counter claim?

ix. Whether the sale deed dated 24.05.1981 executed by the plaintiff in favour of defendant no.no.3 is null and void? and

x. Whether defendant no.1 is entitled to the reliefs?".

8. Rightly, first coming to answer issue no.iii as to the status of

the Plaintiff, which he claims to be the son of Jabar born in the

year 1956 and is denied by by Defendant Nos.1 & 2, on detail

discussion of the evidence and their evaluation, the answer has

been given in favour of the Plaintiff.

Coming to the issue with regard to the validity of the WILL

(Ext.F), the Trial Court, having undertaken the exercise of

analysis of evidence on record as to the proof of execution and

attestation said WILL, concluded that the WILL is shrouded with

many such suspicious circumstances, which have not been

dispelled by propounder and thus the issue has been answered

against the acceptance of the WILL.

9. The suit having been dismissed, the Defendant Nos.1 & 2,

having carried the First Appeal, have been unsuccessful.

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10. Mr.P.K.Nayak, learned counsel for the Appellants

(Defendant Nos.1 & 2) submitted that the Courts below have

committed the error by rejecting the WILL dated 05.02.1968

(Ext.F) executed by Sukrabari in favour of Dhubal, the father of

Defendant Nos.1 & 2. According to him, the evidence on record,

being enough in support of the proof of due execution and

attestation of the said WILL, the finding of the Courts below, in

culling out the some silly circumstances and depicting those to be

suspicious is perverse. Then he submitted that as per the

evidence, since the father of Defendant Nos.1 & 2 are staying on

the disputed land since 1975 till his death and thereafter, the

Defendant Nos.1 & 2 have been staying over there on the strength

of the said WILL without any hindrance, the Courts below ought

to have held that they have acquired the title by virtue of adverse

possession. He, therefore, urged for admission of this Appeal to

answer the above as the substantial questions of law.

11. 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 and the evidence both oral and

documentary let in the parties, as placed.

12. The Courts below, as it appears, on a detail discussion of

the evidence and their assessment from every possible angle,

have arrived at a conclusion that the Plaintiff is the son of Jabar

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and Sukrabari. The Defendants' case that Sukrabari had given

birth to the Plaintiff after the death of Jabar having conceived

through Markand in view of their relationship, has been found to

have been not at all been established. The concurrent finding of

fact as to the status of the Plaintiff, has emerged that he is the son

of Jabar and Sukrabari. On going through the evidence on record;

the Court's below in returning said finding are found to have out

at all overlooked any such material evidence on record or to have

read any such material extraneous to the evidence on record.

Therefore, the said finding is held to be just and proper outcome.

13. Next, coming to the WILL, which has been projected by the

Defendant Nos.1 & 2 so as to non-suit the Plaintiff to deprive him

of the right, title and interest over the suit land, which he claims

being the son of Jabar and Sukrabari and has been so held in his

favour, which has been affirmed; let us have a glance at the

WILL, which has been admitted in evidence and marked Ext.F.

The WILL has been proved through D.W.2. He has stated

that in the year 1968, Sukrabari bequeathed all her properties in

favour of her nephew Dhubal. According to his evidence, the

WILL was written by one Sisunath Bhoi and it was executed in

presence of Budha Bhoi and Jugsai Bhoi. He states to have been

present when the WILL came into being. These two witnesses,

namely, Budha Bhoi and Jugsai are dead. The Defendant No.3 has

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come to the witness box as he is the son of one of the attesting

witness, namely, Jugsai and nephew of Budhia. It is true that

when the attesting witnesses are dead and thus the direct

evidence as to the attestation is not available, a party, under the

obligation to prove due execution and attestation of the WILL,

can very well do so through other evidence.

Thus, here the evidence of D.W.2 is of utmost importance.

When D.W.2 says that he was present all through during when

the WILL was scribed and executed by Sukrabari and attested by

witnesses, his version during cross-examination has axed

everything at their roots. He states that by execution of the said

document (Ext.F), Sukrabari adopted Dhubal as her son and that

fact was written in that document with further pious wish of

Sukrabari that Dhubal would perform her obsequies and enjoy all

her properties. So, when this D.W.2 has stated that the very object

of executing Ext.F by Sukrabari was to place Dhubal in the

pedestal of her adopted son, even if we for a moment accept that

she had expressed her wish and desire that Dhubal would get all

her properties, the document (Ext.F) cannot be said to be having

all the trappings of a WILL in the eye of law. Furthermore, this

D.W.2 has not stated that the document had been scribed under

the instruction of Sukrabari and that the contents of the document

was read over and explained to her by the scribe and she having

ascertained those contents to have been truly and correctly

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written, had put her LTI therein that to in presence of those two

attesting witnesses and that they thereafter singed thereon, which

is most important and bound to be shown in view of the

challenge to the document as required under section 63 of the

Indian Succession Act read with section 68 of the Evidence Act.

Moreover, the scribe of the so-called document (Ext.F) has not

been examined nor there comes any explanation for his non-

examination. In that Ext.F, it finds mention that Sukrabari was

not having any son. But as already found out, in answering the

previous issue that the Plaintiff was her son. Thus said factual

statement made in the so-called WILL appears to be false.

Accepting for a moment that the Plaintiff was born to Sukrabari

not through Jabar but through someone else, then he being in any

case the son of Sukrabari, there is no explanation as to why

Sukrabari, being the mother would exclude her son when she had

given birth to after carrying for ten months in her womb,

nurtured and grown and instead prefer her nephew Dhubal to

enjoy her properties to the deprivation of her son, the Plaintiff. A

mother in doing so must have very strong reason and that much

of hatred or ill-feeling towards her son which is wholly wanting

the proof in this case. The Courts below have also found other

suspicious circumstances surrounding the WILL. By saying that

the comparison of the LTI of Sukrabari in different document

does not tally to the naked eye, doubt has been raised to the

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genuineness of the WILL (Ext.F). Besides the above, there stands

the circumstance that despite the death of Sukrabari in the year

1976, the so-called WILL (Ext.F) has seen the light of the day only

in the year 2007 when an application for mutation for the lands

was filed by the Defendant No.1 although the fact remains that

the propounder under the WILL (Ext.F), namely, Dhubal died in

the year 1992 much after the death of Sukrabari in the year 1976,

which is not explained away.

In view of all these above, this Court finds that the Courts

below, keeping in view all the settled principles of law holding

the field, have rightly discarded the so-called WILL (Ext.F)

projected by Defendant Nos.1 & 2 in order to rob the Plaintiff of

his right, title, interest and possession over the suit land, being

the sole legal heir and successor of Sukrabari.

14. In the wake of aforesaid, this Court finds no such

substantial question/s of law standing for being answered in this

Appeal, meriting its admission.

15. In the result, the Appeal stands dismissed. There shall be no

order as to cost.

(D. Dash), Judge

Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 15-Nov-2023 11:20:14

RSA No.422 of 2017