(In The Matter Of An Appeal Under ... vs Bishnupada Das
2023 Latest Caselaw 12599 Ori

                      IN THE HIGH COURT OF ORISSA AT CUTTACK

                                            R.S.A. No.305 of 2012

                    (In the matter of an appeal under Section 100 of the Code of Civil
                  Procedure, 1908)
                  Pitambar Giri and others                      ....            Appellants
                                                     -versus-
                  Bishnupada Das                                ....           Respondent

                  Appeared in this case:-
                        For Appellants           :          Mr. N.C. Pati, Sr. Advocate,
                                                        M.R. Dash, B. Das, B. Pati, B.K.
                                                       Swain (Appellant Nos.1(a) to 1(c),
                                                                                   2 to 4

                        For Respondent           :         Mr. Bhaktahari Mohanty, Sr.
                                                          Advocate, D.P. Mohanty, R.K.
                                                       Nayak, T.K. Mohanty, P.K. Swain

                   Appeared in this case:-

                   CORAM:
                   JUSTICE A.C. BEHERA

                                           JUDGMENT

Date of hearing : 14.09.2023 / date of judgment :13.10.2023

A.C. Behera, J. The defendants are the appellants against a reversing judgment in a suit for declaration of title, confirmation of possession and permanent injunction.

The case of the plaintiff, (who is the respondent in this 2nd appeal) in the suit vide T.S. No.849 of 1996/946 of 2000 before the learned trial court below as per the averments made in his plaint in nut shell against the defendants (those are the appellants in this 2nd appeal) was that, the // 2 //

suit property was the purchased property of one Krushna Das. While Krushna Das was the owner and in possession over the suit property, he gifted away the same to his two grand-sons, i.e., Judhistir Das and Bhima Charan Das by executing and registering a gift deed bearing No.3167 dated 29.09.1982 vide Ext.8. After receiving the suit property through the aforesaid gift deed from Krushna Das, the donees thereof, i.e., Judhistir Das and Bhima Charan Das became the joint owners over the suit property. But, subsequent thereto, as per amicable partition between Judhistir Das and Bhima Charan Das, they (Judhistir Das and Bhima Charan Das), distributed half share each from the suit property. Judhisir Das sold his half share to the plaintiff through R.S.D. No.2429 dated 06.11.1987 vide Ext.2. After purchasing above half share of Judhistir Das he (plaintiff) mutated the same to his name. Thereafter, Bhima Charan Das also sold his rest half of the suit property to the plaintiff through R.S.D. No.2700 dated 23.11.1991 vide Ext.4. Accordingly, the plaintiff purchased the entire suit property from Judhistir Das and Bhima Charan Das through the aforesaid sale deeds vide Exts.2 and 4 respectively and, he (plaintiff) became the owner of the entire suit property. But, surprisingly, on 27.10.1996, the dedendants tried to dispossess him (plaintiff) from the suit property forcibly stating that, they (defendants) are the owners of the said property, because, they have purchased the same from the original owner Krushna Das. For which, without getting any way, the plaintiff approached the learned trial court below filing suit vide C.S. No.489 of 1996 being the plaintiff against the defendants praying for declaration of right, title, interest and confirmation of his possession over the suit property and also to injunct them (defendants) permanently from entering upon the same.

2. The defendants contested the suit of the plaintiff by filing their joint written statement taking their stand inter alia therein that, though // 3 //

Krushna Das had executed the gift deed on dated 29.08.1982 in respect of the suit property in favour of the vendors plaintiff, i.e., Judhistir Das and Bhima Charan Das, but, Krushna Das, had not delivered the possession thereof to Judhistir Das and Bhima Charan Das. For which, that gift deed was not a complete gift deed. Therefore, Krushna Das had cancelled/revoked that gift deed through a Registered Deed of cancellation/revocation on dated 22.11.1989. So, by that gift deed vide Ext.8, no interest over any portion of the suit property was created in favour of Judhistir Das and Bhima Charan Das, because the title and possession of the suit property was as usual with Krushna Das. Therefore, Krushna Das being the exclusive owner of the suit property sold away the same to the defendants through R.S.D. No.552 dated 21.03.1992 vide Ext. B and delivered possession thereof to them (defendants). Accordingly, they (defendants) are possessing the suit property as the owners thereof. The plaintiff has no right, title, interest and possession on the same. The further case of the defendants was that, as the original owner of the suit property, i.e., Krushna Das has cancelled the deed of gift vide Ext-8 through the registered deed of cancellation/revocation on dated 22.11.1989, for which, no right, title, interest and possession in respect of the suit property was created in favour of Judhistir Das and Bhima Charan Das. Because, the said gift deed vide Ext.8 in favour of Judhistir Das and Bhima Charan Das was void and in operative one. When the gift Deed vide Ext.8 in favour of Judhistir Das and Bhima Charan Das was void, then, the sale deeds executed by the said Judhistir Das and Bhima Charan Das in respect of the suit property in favour of the plaintiff vide Exts.2 and 4 are also void automatically. Therefore, the plaintiff is not entitled to get any interest on the suit property through the aforesaid void deeds vide Exts.2 and 4. So, in their written statement, the defendants filed counter claim against the // 4 //

plaintiff praying for declaration of their right, title, interest over the suit property and confirmation of their possession on the same and also to declare the RoR prepared in favour of the plaintiff on the strength of the sale deeds vide Exts.2 and 4 wrong and to injunct the plaintiff permanently from entering upon the suit property along with costs thereof.

3. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether seven numbers of issues were framed and the said issues are:-

1. Whether the plaintiff has got his cause of action to file this suit?

2. Whether the suit is maintainable?

3. Whether the plaintiff has got his right, title, interest and possession over the shit land?

4. Whether the defendants have got their right, title, interest and possession over the suit land?

5. Whether the counter claim is maintainable?

6. To what other reliefs, the plaintiff is entitled to?

7. To what other reliefs, the defendants are entitled to?

4. In order to substantiate the aforesaid relief(s) prayed for by the plaintiff in the suit, he had examined three witnesses from his side including himself as P.W.1 and had relied upon series of documents on his behalf vide Exts.1 to 13.

5. But, on the contrary, the defendants in support of their pleadings and counter claim examined three witness from their side including the defendant No.1 as D.W.1 and relied upon several documents on their // 5 //

behalf vide Ext.A to Ext.E/1 whereas only one document as Ext.A was marked as on behalf of the Court.

6. The learned trial court below answered issue No.3 against the plaintiff and also answered issue No.4 against the defendants observing that the plaintiff is not entitled for any relief in his favour against the defendants in respect of the suit property.

Because, he (plaintiff) has not proved the flow of title of the suit property, i.e., how the suit property came to the hand of Krushna Das, though it has been stated on behalf of the plaintiff that the suit property was purchased by Krushna Das. The learned trial court also further observed that the gift deed, which was executed by Krushna Das in favour of Judhistir Das and Bhima Charan Das vide Ext.8 in respect of the suit property is not a complete deed of gift. Because, that deed vide Ext.8 has not fulfilled the legal requirements of a gift deed as envisaged in Section 122 of the T.P. Act, 1882. For which, the said deed vide Ext.8, stated to be a gift deed is void. Therefore, the said deed vide Ext.8 has not created any interest in respect of the property covered therein, in favour of Judhistira Das and Bima Charan Das. So the sale of the suit property by the said Judhisthira Das and Bima Charan Das to the plaintiff through the sale deeds vide Exts.2 and 4 on the strength of the void deed vide Ext.8 cannot and shall not create any interest in favour of the plaintiff.

The leaned trial court also answered issue No.4 against the defendants by observing that, as there is no link evidence to show, how the suit property came to the hand of Krushna Das from the original Sabik recorded tenant, then, Krushna Das had no manner of right, title and interest over the suit property. Therefore, transfer of the suit property made by the said Krushna Das in favour of the defendants through sale // 6 //

deed bearing No.552 dated 11.03.1992 vide Ext.B also cannot create any interest over the suit property in favour of the defendants.

When no interest in respect of the suit property has been created in favour of the plaintiff or defendants, then they (parties of both the sides) are not entitled for any relief as prayed for by them in the plaint of the plaintiff as well as in the counter claim of the defendants.

On the basis of the aforesaid findings and observations made by the leaned trial court below in issue Nos.3 and 4, the learned trial court below dismissed the suit of the plaintiff and as well as the counter claim of the defendants on contest vide judgment and decree dated 17.01.2004 and 30.10.2004 respectively.

7. On being dissatisfied with the aforesaid judgment and decree passed by the learned trial court below in T.S. No.849 of 1996 in dismissing the suit of the plaintiff, he (plaintiff) challenged the same by preferring the 1st appeal vide R.F.A. No.8 of 2011 being the appellant against the defendants by arraying them (defendants) as respondents.

After hearing the said R.F.A. No.8 of 2011, the learned 1st Appellate Court allowed the appeal filed by the appellant(plaintiff) and set aside the judgment and decree of dismissal of the suit vide T.S. No.849 of 1996 passed by the learned trial court and declared the right, title, interest and possession of the plaintiff over the suit property and injucted the defendants permanently from interfering into the peaceful possession of the plaintiff over the suit land by assigning the reasons in paragraph no.9 of the judgment that, "when the parties of both the sides have admitted Krushna Das as the owner of the suit property, then, on the basis of their admission, no link document is required to show the ownership of Krushna Das over the suit property and when the contents // 7 //

of Ext.8 (gift deed) executed by Krushna Das are going to show that, the donees thereof, i.e., Judhistir Das and Bhima Charan Das have accepted such gift and they have taken possession of the suit property, covered under the gift deed, it cannot be held that, the said gift deed vide Ext.8 executed by Krushna Das in favour of Judhistir Das and Bhima Charan Das was an incomplete deed and when the said gift deed vide Ext.8 is not an incomplete gift deed, then, the unilateral cancellation thereof by the donor Krushna Das through registered deed of cancellation on dated 22.01.1989 cannot cancel/revoke that gift deed vide Ext.8 lawfully and as such, when the gift deed vide Ext.8 in favour of Judhistir Das and Bhima Charan Das is held as a valid gift, then alienation of the suit property covered under that gift deed in favour of the plaintiff by the donees thereof, i.e., Judhistira Das and Bhima Charan Das through sale deeds vide Exts.2 and 4 cannot be held as illegal. Therefore, Exts.2 and 4 are not void sale deeds, but, valid sale deeds. So, the plaintiff has right, title, interest and possession over the suit property as a lawful purchaser. When Krushna Das had already lost his interest over the suit property by executing and registering the deed of gift vide Ext.8 in favour of Judhistir Das and Bhima Charan Das, then he had no interest on the suit property to alienate sub sequently on dated 21.03.1992 in favour of the defendants. Therefore, the plaintiff is the owner and in possession over the suit property, but, the defendants have no interest thereon."

8. On being dissatisfied with the aforesaid judgment and decree of the 1st appellate court against the defendants, they (defendants) preferred this 2nd appeal being the appellants against the plaintiff by arraying him (plaintiff) as respondent.

9. This 2nd appeal has been admitted by formulating the substantial question of law that is, "whether the gift deed dated 29.09.1982 vide // 8 //

Ext.8 executed by Krushna Das in favour of Judhistir Das and Bhima Charan Das (vendors of the plaintiff) shall be called as valid gift deed even after cancellation of the same through a registered deed of cancellation by the donor thereof on dated 22.11.1989 ?

10. During the course of hearing of the appeal, the learned counsel for the appellants/defendants relied upon the decision between Balai Chandra Parui vrs. Smt. Durga Bala Dasi and Ors : (Culcutta) Court (decided on 30.04.2004) in order to upset the judgment and decree of the 1st appellate court.

11. On the contrary, learned counsel for the respondent/plaintiff has relied upon the decisions reported in 2019(I) ILR-Cut-736 : Smt. Rama Deo vrs. State of Orissa & Ors, 2001(II) OLR-514 : Namita Patnaik alias Mohanty vrs. Dillip Kumar Pattnaik in support of the judgment of the 1st Appellate court.

12. The law on this aspect, i.e., when a gift deed shall be held and accepted as a complete or incomplete gift deed and when cancellation of gift deed is permissible under law and the legal sanctity of the deed of cancellation has already been clarified in the ratio of the following decisions of the Apex Court and Hon'ble Courts:-

(i) (1997) 2 SCC 255 : Naramadaben Maganlal Thakker vrs. Pranjivandas Maganlal Thakker and others--T.P. Act, 1882-- Sections 122, 123 to 126:-

When the gift deed shall be treated a complete gift deed--

"The execution of a registered gift deed, acceptance of the gift deed and delivery of possession together make the gift // 9 //

complete. Thereafter, the donor is divested of his title over the properties covered in that gift deed and the donee becomes absolute owner of the said properties of that gift deed."

(ii)    2019 (1) Civil Court Cases-280 (S.C.)

        2018 (II) CLR (S.C.)-1245

        127(2019) CLT (S.C.)-240

        2018(4)CCC(S.C.)-464 :

S. Sarojini Amma vrs. Velayudhan Pillai Sreekumar (Para-15)

--T.P. Act, 1882--Sections 122 and 123 to 126:-Gift--

cancellation--

"A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of donor--when a gift is incomplete and title remains with donor, the deed of gift might be cancelled."

(iii) 2018(3) CCC-150(Orissa) Rankanidhi Das(dead) thr. His L.Rs vrs. Kartika Charan Das(dead) through his L.Rs. and another--T.P. Act, 1882-- Section 122 (paras 9 and 10)--"Gift deed once acted upon, the same cannot be cancelled."

(iv) 2016(1) OJR-246 Smt. Basanti Paikray vrs. Dr. Prananath Paikray--T.P. Act, 1882, Section 126--Cancellation of gift--

"A gift once accepted cannot be cancelled unilaterally by the donor without written consent of donee--Registered deed of cancellation executed by donor does not disclose the consent or agreement of the donee nor-bear her signature--Deed of cancellation is invalid."

// 10 //

13. Here, in this suit at hand, there is no material in the record on behalf of the defendants to show that, the gift deed vide Ext.8 in respect of the suit property executed by the undisputed/admitted owner thereof, i.e., Krushna Das has not been accepted by the donees thereof, i.e., Judhistir Das and Bhima Charan Das. There is also no material in the record to show that, the possession of the properties covered in that gift deed has not been delivered to the donees therefore, i.e. to Judhisir Das and Bhima Charan Das. Rather the recitals of that gift deed vide Ext.8 itself are going to show that, the said gift has been accepted by the above donees from the donor Krushna Das and they (donees) have taken possession of the suit property covered under that gift deed.

14. There is also no material in the record on behalf of the defendants to show that, the so-called deed of revocation/cancellation of gift deed was executed by the written consent of the donees, i.e., Judhistir Das and Bhima Charan Das. The signatures of Judhistir Das and Bhima Charan Das are not available in the said registered deed of cancellation of gift dated 22.11.1989. So, the so-called registered deed of cancellation of gift dated 22.11.1989 was executed and registered unilaterally by the donor Krushna Das himself without the written consent of the donees thereof.

15. When, it is forthcoming from the materials on record that, the gift deed vide Ext.8 is a registered gift deed and there is proof of acceptance of that gift by the donees and the donees have taken possession of the gifted properties covered therein, i.e., suit properties and the cancellation/revocation deed has been executed unilaterally by the donor without the written consent of the donees, then, at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions to the above factual aspects of the suit at hand, it cannot be held that, the registered gift deed vide Ext.8 is an incomplete gift deed and the // 11 //

donor of that Ext.8 has right to cancel/revoke that Ext.8 unilaterally. For which, in other words, it is held that, the registered deed of gift vide Ext.8 executed by the owner of the suit property, i.e., Krushna Das in favour of the donees(vendors of the plaintiffs) is a complete gift deed and the donor thereof, i.e., Krushna Das was not authorized under law to cancel/revoke that gift deed and unilateral cancellation of that gift deed on 22.11.1989 by the donor Krushna Das is not lawful one.

16. That apart, though the defendants had prayed for declaration of their right, title, interest and confirmation of their possession over the suit property and permanent injunction against the plaintiff in their counter claim, but their above prayers made in their counter claim were nagatived/discarded by the leaned trial court dismissing their counter claim on contest, still then, they(defendants) have not challenged the same either preferring an appeal or any cross objection in the 1st appeal. So the defendants have accepted the findings of the learned trial court regarding the dismissal of their counter claim.

17. As the defendants have not preferred any appeal or cross objection in the 1st appeal challenging the order of dismissal of their counter claim, then, as per law, the final findings made by the learned trial court below against the defendants refusing their prayers for declaration of title, confirmation of possession and permanent injunction have already been reached in its finality and the order of said dismissal of the counter claim of the defendants has become res judicata against them (defendants) as per the ratio of the decision of the Hon'ble Courts relied upon by the plaintiff reported in 2019(I) ILR-(Cuttack)-736 : Smt. Rama Deo vrs. State of Orissa & Ors, on the basis of the decision of the Apex Court reported in 2017 AIR SCW 6187 : Rajni Rani and another vrs. Khairati Lal ad others.

// 12 //

18. As per the discussions and observations made above, when it is held that, the registered gift deed vide Ext.8 executed by Krushna Das in favour of the vendors of the plaintiff is a valid gift deed and the unilateral cancellation thereof through a deed of cancellation/revocation dated 22.11.1989 by the donor without the written consent of the donees has no legal sanctity and when the dismissal of the counter claim of the defendants by the learned trial court disregarding their prayer for declaration of their right, title, interest and possession over the suit property and permanent injunction has become res judicata as per law against the defendants, then, at this juncture, it cannot at all be held that, the decisions/findings made by the 1st appellate court setting aside the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.849 of 1996 passed by the trial court and decreeing that suit of the plaintiff on contest against the defendants is erroneous in any manner. For which, the question of interfering with the same through this 2nd appeal filed by the defendants does not arise at all.

19. Therefore, there is no merit in this 2nd appeal filed by the appellants(defendants).

In the result, the 2nd appeal filed by the appellants is dismissed on contest, but without cost. The judgment and decree dated 27.01.2012 and 10.02.2012 respectively passed by the 1st appellate court in R.F.A. No.8 of 2011 are hereby confirmed.

                                                                                       ( A.C. Behera )
Signature Not Verified                                                                     Judge
Digitally Signed              Orissa High Court, Cuttack
Signed by: JAGABANDHU BEHERA
                              The 13th of October, 2023/ Jagabandhu, P.A.
Designation: Secretary-in-Charge
Reason: Authentication
Location: OHC, CUTTACK
Date: 13-Oct-2023 18:51:20