Prabhat Kumar Patro vs Smt. Renubala Patro & Another
2024 Latest Caselaw 345 Ori

Orissa High Court

Prabhat Kumar Patro vs Smt. Renubala Patro & Another on 8 January, 2024

Author: D. Dash

Bench: D. Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                            R.S.A. NO.222 OF 2018
    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment and decree dated 05.01.2018
    and 09.01.2018 respectively passed by the learned District Judge,
    Gajapati-Parlakhemundi in R.F.A. No.29 of 2015 confirming the
    judgment and decree dated 03.08.2015 and 14.08.2015 respectively
    passed by the learned Civil Judge, (Senior Division), Parlakhemundi
    in Civil Suit No.47 of 2013.
                                  ----

         Prabhat Kumar Patro                   ....            Appellant
                                   -versus-
         Smt. Renubala Patro & Another         ....         Respondents
            Appeared in this case by Hybrid Arrangement
                     (Virtual/Physical Mode):

     =================================================
                For Appellant      -      Mr. Manoranjan Pathy,
                                          & Jyotsnamayee Sahoo,
                                          Advocates.
                For Respondents -         ----------------
    CORAM:
    MR. JUSTICE D. DASH

Date of Hearing : 02.11.2023 :: Date of Judgment:08.01.2024

D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the

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

judgment and decree dated 05.01.2018 and 09.01.2018 respectively

passed by the learned District Judge, Gajapati-Parlakhemundi in

R.F.A. No.29 of 2015.

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The Respondent No.1 as the Plaintiff had filed the suit for

declaration of her right, title and interest over the suit land with further

prayer to declare the registered sale-deed dated 21.03.2011 executed

by Respondent No.1 (Defendant No.1) in favour of Respondent No.2

(Defendant No.2) as null and void in seeking delivery of possession of

the suit land from the Respondents (Defendants) with further prayer for

permanent injunction. The suit having been decreed; this Appellant

being the aggrieved, Defendant No.1 had carried an Appeal under

section-96 of the Code. The Appeal has been dismissed.

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 Trial Court.

3. The Plaintiff's case is that the Defendant No.1 is her mother

whereas Defendant No.2 is her brother. The Plaintiff had entered into

Government service as Village Agricultural Worker in the year 1991.

She was posted at Bodokotturu and then transferred to Ankuspur and

in the year 1996, was again transferred to village Chenameri where she

continued to stay till the year, 2009. After that, she was transferred to

Gurandi. It is stated that during the period of service at village

Ankuspur, she with her mother (Defendant No.1) had purchased vacant

piece of land measuring Hc.0.056 decimals from Plot No.355, Khata

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No.84 of mouza: Mohana by registered sale-deed dated 10.12.1993.

The Plaintiff having purchased the suit land jointly with her mother

enjoyed the property as such. Subsequently, the land was mutated in

their names. Plaintiff married in the year, 1997 and after marriage, she

continued to possess the purchased property with her mother as before.

On 1708.2002, the Plaintiff and Defendant No.1 mutually agreed for a

partition of the suit land between them into two equal halves in

presence of village gentries. It is stated that in that partition, effected

orally, the eastern portion of the purchased land measuring 30 cubits X

45 cubits fell in the share of the Plaintiff; whereas the western portion

of equal size was allotted to the Defendant No.1. It is further stated that

the Plaintiff and Defendant No.1 after said partition remained in

possession of the respective portions of land falling in their respective

shares and then the Plaintiff constructed one R.C. roof house over her

part of the land, keeping some vacant land. She states to have spent a

sum of Rs.4,00,000/- for the purpose by withdrawing the same from

her General Provident Fund account besides a incurring the loan from

HUDCO. Sons of Defendant No.1 did not take care of Defendant No.1.

The Plaintiff was however shouldering that burden. Since the

Defendant No.1 being not taken care of by her sons, and there was no

shelter for her, the Plaintiff had allowed her to stay in that house

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standing over the suit land. But Plaintiff being transferred to village

Gurandi from Mohana, she had left the house in custody of Defendant

No.1 for her occupation and was visiting the house during holidays and

when was taking leave.

The Defendant No.2 is one of the brothers of the Plaintiff. It is

stated that Defendant No.2 by exercising undue pressure upon the

Defendant No.1 having brought her to Paralakhemundi on 21.03.2011,

got a registered sale-deed created in his favour in respect of the suit

land. The sale-deed thus came into being behind the back of the

Plaintiff and her knowledge without payment of any consideration. The

said transaction is attacked a sham transaction in further stating that by

execution and registration of the same, the title in respect of the suit

land has not been transferred in favour of the Defendant No.2. it is

further stated that the suit land being a joint property of Plaintiff and

Defendant No.1; the Defendant No.1 could not have executed the sale-

deed and registered the same in favour of the Defendant No.2. The

Plaintiff having come to know about all these above clandestine

activities of Defendant No.2 ultimately filed the suit after having

served legal notice.

4. The Defendant No.1 does not dispute the position that the suit

land had been purchased jointly by herself and her daughter (Plaintiff)

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and that they jointly possessed the same after having mutated the land

in their names. It is further stated that the boundary mentioned in the

schedule of property is not correct. She challenged that the eastern

portion was allotted in favour of the Defendant No.1; whereas western

portion was allotted to the Plaintiff. The Defendant No.1 had

constructed slab house over the land from out of her retirement

benefits. The Defendant No.1 claims to have been in possession of the

suit land and residing in the house with the Defendant No.2. The

Defendant No.2 who used to take care of Defendant No.1 requested

Defendant No.1 to transfer the suit house for consideration and

accepting said request, the Defendant No.1 is said to have sold the suit

land and house to Defendant No.2 by registered sale-deed dated

21.03.2011 for valuable consideration. It is stated that the Plaintiff

have fully knowledge about the sale transaction and had filed the suit

based on false assertion to harass the Defendants, although the Plaintiff

has no right title, interest and possession over the suit land.

6. The Defendant No.2 has adopted submission filed by the

Defendant No.1.

7. The Trial Court on the above rival pleadings having framed nine

(9) issues is rightly found to have taken up the crucial issues

concerning to the oral partition, the house standing over the suit land;

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right, title and interest of the Plaintiff over the suit schedule property

and the fate of the sale-deed executed by Defendant No.1 in favour of

Defendant No.2 together for decision.

On going through the evidences and their analysis, the Trial

Court has answered all those in favour of the Plaintiff. Then taking up

rest of the issues, it has been found that the Defendants are having no

manner of right, title and interest over the suit schedule property and it

is the Plaintiff who is rightful owner of the suit land and as such

entitled to possess.

The First Appellate Court being moved by the aggrieved

Defendant No.2, on an independent analysis of evidence on record has

concurred with the findings of the Trial Court on all those issues.

Accordingly, the judgment and decree passed by the Trial Court have

been confirmed.

8. Learned Counsel for the Appellant submitted that the Courts

below are not correct in returning the findings on all those issues

basing upon the admission of Defendant no.1 during her cross-

examination that the suit land had fallen to the share of the Plaintiff in

the oral partition effected between her and the Plaintiff in violating the

total purchased land. According to him, when said stray statement

came during cross-examination and that is contrary to the evidence-in-

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chief, no such importance ought to have been attached to it. He

submitted that the findings of the Courts below even though concurrent

on this score that in the oral partition effected between the Plaintiff and

the Defendant No.1 and that the suit land had fallen in the share of the

Plaintiff, the same is the outcome of perverse appreciation of evidence.

He, therefore, urged for admission of this Appeal to answer the above

as the substantial question of law.

9. Keeping in view the submissions made, I have carefully read the

judgments passed by the Courts below. I have also gone through the

plaint and written statement filed by the parties as well as the evidence,

both oral and documentary, let in by them.

10. Undisputed position stands that the property in question had

been jointly purchased by the Plaintiff and the Defendant No.1. The

purchased land was accordingly mutated under one plot as it reveals

from Ext.1. It is also not in dispute that while continuing to possess the

suit land at its joint owner, the Plaintiff and Defendant No.1 had

partitioned the suit property into two equal halves.

When the Plaintiff claims that in the said partition, eastern

portion of the suit plot measuring 30 cubits x 45 cubits which is the

suit land was allotted in her favour and the western half had fallen in

the share of her mother (Defendant No.1) that is not accepted by the

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Defendant No.1. The Defendants accept that the eastern portion of the

suit plot which is the present suit land had fallen in the share of the

Plaintiff. The Defendant No.1 has examined herself as D.W.2. As per

her evidence, she was also a Government servant. It has been

specifically admitted by her during trial that the suit land had fallen to

the share of the Plaintiff in the oral partition. The admission is

unambiguous and as it appears to have not been successful withdrawn

or explained away at any given point of time. The evidence of P.Ws.1

to 6 and the evidence of the Defendant No.1 (D.W.2) having been

examined by the Courts below they have found that the Plaintiff's case

as to the allotment of the suit land in her share in the oral partition has

been well proved. This Court finds absolutely no error to have been

committed thereby.

With the above evidence which have been discussed in detail,

the Courts below when have decreed the suit after having held the sale-

deed executed by Defendant No.1 in favour of Defendant No.2 to be

having no value in the eye of law; this Court finds those to be well in

order.

11. A careful reading being given to the judgments passed by the

Courts below covering the discussion of evidence in detail, this Court

finds that in ultimately arriving at the factual finding, no such material

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evidence available on record has been overlooked or side lined. It also

does not appear that the Courts below have read something extraneous

to the evidence as standing to the aid of said finding in taking that as

the base. In that view of the matter, the concurrent findings on fact

rendered on detail discussions of evidence and their appreciation from

all angles by the Courts below are not found to be suffering from the

vice of perversity.

For all the aforesaid, the submission of the learned Counsel for

the Appellant (Defendant No.2) cannot be countenanced to say that

there arises any substantial question of law for being answered,

meriting admission of this Appeal.

12. In the result, the Appeal stands dismissed. However, there shall

be no order as to cost.

(D. Dash), Judge.

Narayan