Orissa High Court
Brundaban Pradhan And Another vs Kaibalya Pradhan And Others on 28 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.228 of 2002
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Brundaban Pradhan and another .... Appellants
-versus-
Kaibalya Pradhan and others ..... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr. Subham Sharma,
Advocate.
appearing on behalf of
Mr. S.K. Padhi,
Sr. Advocate
For Respondents- None
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :24.06.2024 :: Date of Judgment :28.06.2024
A.C. Behera, J. This 2nd appeal has been preferred against the
reversing judgment.
2. The appellants of this 2nd appeal were the defendants before the
Trial Court in the suit vide T.S. No.12 of 1995 and they were the
respondents in the First Appeal before the First Appellate Court vide T.A.
No.65 of 1999.
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The respondents of this 2nd appeal were the plaintiffs before the
Trial Court in the suit vide T.S. No.12 of 1995 and they were the
appellants before the First Appellate Court in the First Appeal vide T.A.
No.65 of 1999.
3. The suit of the plaintiffs (respondents in this 2nd appeal) before the
Trial Court against the defendants (appellants in this 2nd appeal) vide T.S.
No.12 of 1995 was a suit for declaration and mandatory injunction.
4. The case of the plaintiffs against the defendants as per their plaint
in the suit vide T.S. No.12 of 1995 before the Trial Court was that, the
properties described in Schedule 'A' are the suit properties, those are the
part of Schedule 'B' properties. According to them (plaintiffs), Gopinath
Pradhan was their common ancestor. Gopinath Pradhan died leaving
behind his wife Hadiani and two sons i.e. Dama and Abhi. Hadiani died
leaving behind her two sons i.e. Dama and Abhi. The first son of
Gopinath Pradhan i.e. Dama Pradhan died leaving behind the plaintiffs as
his successors. The second son of Gopinath Pradhan i.e. Abhi Pradhan
died leaving behind the defendants as his successors.
On 21.03.1973, Dama Pradhan and Abhi Pradhan were separated
and divided their all joint properties between them amicably and
accordingly since then, Dama Pradhan and Abhi Pradhan enjoyed their
respective allotted properties separately. About twenty years back, the
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father of the defendants expired. After the death of the father of the
defendants, the defendants started selling their properties, to which, they
had got through the above amicable partition and accordingly, they
(defendants) sold their all properties.
The father of the plaintiffs died three years back. At the time of
amicable partition between Dama and Abhi on dated 21.03.1973, their
mother Hadiani was alive. Hadiani died about fifteen years back. Hadiani
had purchased the properties described in Schedule 'B' including the suit
properties described in Schedule 'A' on dated 20.07.1938 through
Registered Sale Deed No.2549 of 1938 from one Badapalli Samantara
and his sons i.e. Simanchala and Danda. Since then, Hadiani was
possessing 'B' Schedule properties exclusively as her Streedhan
properties and she was paying rent of the same. Her two sons i.e. Dama
and Abhi had no manner of right, title and interest over the said 'B'
Schedule properties even at the time of partition of joint properties
between Dama and Abhi on dated 21.03.1973. Therefore, the 'B'
Schedule properties were excluded from distribution between Dama and
Abhi on dated 21.03.1973, as the said 'B' Schedule properties were the
self acquired exclusive properties of their mother Hadiani. Even after the
distribution of joint properties between Dama and Abhi on dated
21.03.1973, Hadiani was possessing her 'B' Schedule properties
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exclusively. While Hadiani was owner over the 'B' Schedule properties,
she sold the said 'B' Schedule properties including the suit properties to
the plaintiffs on 04.07.1979 for a consideration amount of Rs.4,000/- and
delivered possession thereof and since then, the plaintiffs possessed the
'B' Schedule properties being the owners of the same, in which, the
defendants have no manner of right, title and interest. The plaintiffs have
sold some portions of 'B' Schedule properties to different persons
through different sale deeds for construction of their house. Out of the
said consideration amount, they (plaintiffs) have constructed a house on
the rest unsold portion of 'B' Schedule properties. The purchasers of the
parts of 'B' Schedule properties have also constructed their respective
houses on their respective purchased properties. But, on dated
15.08.1993, the defendants forcibly occupied Ac.0.03 cents from 'B'
Schedule properties i.e. to the 'A' Schedule suit properties in spite of the
protest of the plaintiffs, though the defendants have no manner of right,
title, interest and lawful possession on the same.
Therefore, without getting any way, the plaintiffs approached the
civil court by filing the suit against the defendants praying for declaration
of their right, title and interest over the suit properties described in
Schedule 'A' and to direct defendants for vacation of the suit properties
in favour of the plaintiffs by issuing mandatory injunction against the
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defendants and to direct the defendants to remove the structures raised by
them on the suit properties and to deliver the possession of the same to
them (plaintiffs) along with other reliefs, to which, they (plaintiffs) are
entitled for.
5. Having been noticed from the Trial Court in the suit vide T.S.
No.12 of 1995, the defendants challenged that suit of the plaintiffs by
filing their joint written statement denying the allegations alleged by the
plaintiffs against them (defendants) taking their stands/pleas that, Ekadasi
was the grandfather of the plaintiffs and defendants. Ekadasi had three
sons, namely, Gopi, Kantha and Baishnava. Gopi, Kantha and Baishnava
had partitioned their all ancestral properties between them in the year
1930 or 1940 through an oral arrangement. In the said partition, Gopi
(grandfather of the plaintiffs and defendants) got 16 Bharans of land in
Batisa measure. From the income of the said 16 Bharans land, Gopi had
purchased certain properties including the 'B' Schedule properties in the
name of his wife Hadiani. But, the same was under the possession of
Gopi and after the death of Gopi, the same was under the possession of
Dama, as Dama was the eldest male member of the family. Because, the
father of the defendants i.e. Abhi died in his early age. Therefore, 'B'
Schedule properties are the joint family properties of the plaintiffs and
defendants. In fact, there was no partition of the joint properties between
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Dama and Abhi. For which, the question of exclusion of the properties of
Hadiani i.e. suit properties from partition in the year 1973 between Dama
and Abhi does not arise. Dama (father of the plaintiffs) being the eldest
male member of the family, he was looking after the entire family
properties including the defendants and their mother Hira Pradhanuni and
the said Dama Pradhan was taking them to the Sub-Registrar's Office, for
which, Dama Pradhan might have created certain documents styling their
mother as an executant. Hadiani was an illiterate pardanasini lady and any
such execution if made by her regarding alienation of the 'B' Schedule
properties in favour of the plaintiffs, the said alienation is not valid and
binding upon Hadiani or upon them (defendants). As, the father of the
defendants died in his early age, for which, the defendants came to
Berhampur from their native village to earn their livelihood. So, the
plaintiffs and their father were remaining in the suit village and they were
appropriating all the incomes from the joint properties by providing some
paddy for the maintenance of his mother Hadiani. So, by taking the
advantage of the absence of the defendants from the suit village as well as
their ignorance, the plaintiffs might have created certain documents in
their favour in respect of the suit properties, which are not binding on
them (defendants) and the said documents are void documents. In the
year 1979, the father of the plaintiffs demarcated three cents of land from
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survey No.6/16 and constructed a house thereon and requested the mother
of the defendants to remain in that house and since 1979, the mother of
the defendants was residing in the said house occasionally. The
defendants while searching the documents, they (defendants) traced out
an unregistered gift deed dated 24.07.1979 executed by the father of the
plaintiffs and the plaintiffs in their favour (in favour of the defendants) in
respect of the suit properties and accordingly, since the date of execution
of such gift deed i.e. since 24.07.1979, they (defendants) are possessing
the suit properties. They (defendants) had filed a suit vide T.S.
No.80/1995 in the Court of Civil Judge, Sr. Division, Berhampur for
partition of all the properties left by late Gopi and Hadiani, which is
subjudice. For which, the present suit filed by the plaintiffs is not
maintainable. Therefore, the plaintiffs have no cause of action to file the
suit. For which, the plaintiffs are not entitled for any relief in the suit.
Therefore, the suit of the plaintiffs is liable to be dismissed against
them (defendants).
6. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 10 (ten) numbers of issues were framed by
the Trial Court in the suit vide T.S. No.12 of 1995 and the said issues
are:-
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ISSUES
(i) Whether the suit is maintainable?
(ii) Whether the plaintiffs have any cause of action
in the suit?
(iii)Whether the schedule-B properties were the
exclusive properties of Hadiani Pradhanuni as her
"Streedhan" properties?
(iv) Whether the said Hadiani Pradhanuni transferred
the said schedule-B properties to the plaintiffs by
way of registered sale deed on 04.07.1979 and the
plaintiffs were in exclusive possession of schedule-B
properties?
(v) Whether the defendants forcibly occupied
Schedule-A properties, which is a part of Schedule-B
properties without any right, title and interest over
the same?
(vi) Whether the plaintiffs have absolute right, title
and interest over schedule-B properties, which
include schedule-A properties?
(vii) Whether the plaintiffs are entitled to recover
schedule-A properties from the defendants?
(viii) Whether the defendants with the help of police
took signature of the plaintiffs on a stamp paper on
29.08.1993?
(ix) Whether the suit is barred by limitation?
(x) To what other relief, if any, the plaintiffs are
entitled?
7. In order to substantiate the aforesaid reliefs sought for by the
plaintiffs against the defendants in respect of the suit properties, they
(plaintiffs) examined 3 (three) numbers of witnesses from their side
including plaintiff No.3 as P.W.1 and relied upon the documents vide
Exts.1 to 5.
On the contrary, in order to nullify/defeat the suit of the plaintiffs,
the defendants also examined 3 (three) witnesses on their behalf including
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mother of the defendants as D.W.1 and exhibited one document from
their side as Ext.A.
8. After the conclusion of hearing and on perusal of the materials,
documents and evidence available in the Record, the Trial Court
answered all the issues against the plaintiffs and in favour of the
defendants except issue No.3. Though, in the issue No.3, the Trial Court
observed that, the suit properties were the Streedhan properties of
Hadiani, but in the rest other issues, the Trial Court observed that, the
plaintiffs failed to prove about the due and proper execution of the sale
deed dated 04.07.1979 in respect of the 'B' Schedule properties including
the 'A' Schedule suit properties by Hadiani Pradhanuni in their favour
and they (plaintiffs) also failed to establish their exclusive right, title,
interest and possession over Schedule 'B' properties including the suit
properties. For which, the plaintiffs are not entitled for decree of
declaration of their title over the suit properties and they (plaintiffs) are
also not entitled for the decree of mandatory injunction against them
(defendants) in order to recover the possession of the suit properties. As
such, basing upon the findings and observations made by the Trial Court
in issue Nos.1, 2, 4 to 10 against the plaintiffs and in favour of the
defendants, the Trial Court dismissed the suit of the plaintiffs vide T.S.
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No.12 of 1995 on contest with cost against the defendants as per its
judgment and decree dated 25.09.1999 and 08.10.1999 respectively.
9. On being dissatisfied with the aforesaid judgment and decree of the
dismissal of the suit of the plaintiffs vide T.S. No.12 of 1995 passed on
dated 25.09.1999 and 08.10.1999 respectively by the Trial Court, they
(plaintiffs) challenged the same by preferring the First Appeal vide T.A.
No.65 of 1999 being the appellants against the defendants by arraying the
defendants as respondents.
10. After hearing from both the sides, the First Appellate Court
allowed that First Appeal vide T.A. No.65 of 1999 of the plaintiffs on
contest against the respondents (defendants) and set aside the judgment
and decree of the dismissal of the suit of the plaintiff vide T.S. No.12 of
1995 passed by the Trial Court as per its judgment and decree dated
05.08.2002 and 17.08.2002 respectively passed in T.A. No.65 of 1999
and decreed to the suit vide T.S. No.12 of 1995 of the plaintiffs against
the defendants on contest and declared the right, title, interest and
possession of the plaintiffs over the suit properties and directed the
defendants to deliver the possession of the suit properties in favour of the
plaintiffs within a period of three months assigning the reasons that, the
suit properties were the exclusively purchased properties of Hadiani,
because the same was purchased by Hadiani in the year 1938 through a
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registered sale deed. Accordingly, the Hadiani was the exclusive owner of
the suit properties, for which, at the time of amicable partition between
Dama and Abhi in the year 1973 in respect of their joint properties, the
suit properties were included in such partition, because the same was the
exclusive properties of Hadiani and after such amicable partition of their
all joint properties, both the branches i.e. plaintiffs and defendants have
sold their allotted properties to P.Ws.2 & 3. Hadiani has executed two
deeds in respect of her Schedule 'B' properties. Out of which one is in the
year 1974 vide Ext.A in favour of the plaintiff No.1 and other is Ext.3 in
the year 1979 in favour of all the plaintiffs including the Schedule 'A'
properties, so it cannot be held that, Hadiani had no knowledge about the
execution and registration of the deeds in respect of the suit properties in
favour of the plaintiffs. For which, in other words, it is held that, Hadiani
had transferred the suit properties through registered sale deed vide Ext.3
in the year 1979 in favour of the plaintiffs properly. Therefore, it cannot
at all be held that, the execution and registration of the sale deed vide
Ext.3 by Hadiani in favour of the plaintiffs in respect of the 'B' Schedule
properties including the Schedule 'A' suit properties was not proper,
because the defendants have taken their stands in their written statement
about the acquisition of their title over the suit properties through a gift
deed dated 24.07.1979 said to have been executed by the plaintiffs in
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their favour indirectly admitting the due and proper execution of sale
deed dated 04.07.1979 in respect of the 'B' Schedule properties including
the suit properties by Hadiani in favour of the plaintiffs.
11. On being aggrieved with the aforesaid judgment and decree dated
05.08.2002 and 17.08.2002 respectively passed by the 1st appellate Court
in T.A. No.65 of 1999 in favour of the plaintiffs and against the
defendants, they (defendants) challenged the same by preferring this 2nd
appeal being the appellants against the plaintiffs by arraying them
(plaintiffs) as respondents.
12. This Second Appeal was admitted on formulation of the following
substantial questions of law i.e.-
(i) Whether the judgment of the lower appellate court
is bad in law as it is contrary to the settled position of law
that the plaintiff must succeed on the strength of his own
case and must not depend on the weak points of the
defendant's case?
(ii) Whether the finding that no amount of oral evidence
would alter the recitals in Ext.1 is in consonance with the
provisions under Sections 91 and 92 of the Evidence Act?
(iii) Whether the burden of proving the execution of the
documents, which were allegedly executed by Hadiani who
was an illiterate lady lies heavily on the plaintiffs?
(iv) Whether the lower appellate court was justified in
declaring the right, title and interest of the plaintiffs basing
on the gift deed (Ext.A) and the sale deed (Ext.3) especially
when both the deeds have not been proved by the plaintiffs
and are contradictory in nature?
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13. I have already heard from the learned counsel for the appellants
(defendants) only, as none appeared from the side of the respondents
(plaintiffs) to participate in the hearing of the 2nd appeal.
14. As the above four formulated substantial questions of law are
interlinked having ample nexus with each other, then in order to have the
just decision of this 2nd appeal, all the above four substantial questions of
law are taken up analogously hereunder for their discussions.
15. In order to nullify the judgment and decree passed by the First
Appellate Court in favour of the plaintiffs and against the defendants, the
learned counsel for the defendants (appellants) relied upon two decisions
of the Apex Court i.e. Placido Francisco Pinto (D) by LRs & Anr. Vrs.
Jose Francisco Pinto & Anr. & Smt. Gangabai Vrs. Smt. Chhabubai.
16. It is the undisputed case of the parties that, 'A' Schedule suit
properties are the part of 'B' Schedule properties.
It is the concurrent and unchallenged findings of the Trial Court
and 1st Appellate Court in their respective judgment and decree that, the
'B' Schedule suit properties, which includes 'A' Schedule suit properties
were the exclusive Streedhan properties of Hadiani Pradhanuni, to which,
she (Hadiani Pradhanuni) had purchased through R.S.D. No.2549 dated
20.07.1938 vide Ext.1.
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The plaintiffs have claimed their title and possession over the
Schedule 'A' suit properties on the basis of the sale deed dated
04.07.1979 vide Ext.3 executed by Hadiani in their favour.
In Para No.8 of the written statement of the defendants, they
(defendants) have claimed their title and possession over the suit
properties through an unregistered gift deed dated 24.07.1979 said to
have been executed by the plaintiffs in their favour.
The defendants have neither filed the above so called gift deed nor
they (defendants) have proved the same during trial of the suit before the
Trial Court.
There is no explanation at all on behalf of the defendants about the
cause and reason of withholding the above so called gift deed dated
24.07.1979 from its production, on the basis of which, they have claimed
their title and possession over the suit properties.
It is the settled propositions of law that, the parties to the suit like
the defendants in the suit at hand are bound by their own pleadings.
Because, the averments made in the written statement are admissible as
per the Evidence Act.
On this aspect, the propositions of law has already been clarified in
the ratio of the following decision:-
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2020 (1) CCC 394 (Jharkhand)--Miss China Moitra Vrs.
Dinanath Moitra & others--Written Statement--
Averments made in the written statement are admissible as
per the Evidence Act.
17. When it is established that, the 'B' Schedule properties including
the 'A' Schedule suit properties were the exclusively purchased
Streedhan properties of Hadiani and when it is the case of the plaintiffs
that, they have purchased the entire 'B' Schedule properties including 'A'
Schedule suit properties from the said Hadiani Pradhanuni through R.S.D.
No.3584 dated 04.07.1979 vide Ext.3 and when at the same time the
defendants have claimed their title and possession over the suit properties
through gift deed dated 24.07.1979 said to have been executed by the
plaintiffs in their favour without filing and proving the so called gift deed
indirectly admitting the title, ownership and possession of the plaintiffs
over the 'B' Schedule properties including 'A' Schedule suit properties,
then at this juncture, the above pleas of the defendants i.e. their indirect
admission to the title and possession of the plaintiffs over the suit
properties is ultimately establishing the due and proper execution of the
Registered Sale Deed vide Ext.3 by its admitted owner i.e. Hadiani in
favour of the plaintiffs, which is ultimately shifting the burden of proof
regarding the allegation of improper execution of that sale deed vide
Ext.3 to the defendants. Because, the defendants have indirectly admitted
the title and possession of the plaintiffs over the suit properties claiming
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their title and possession over the suit properties through gift deed dated
24.07.1979 said to have been executed by the plaintiffs in their favour,
only for the reason that, if the title of Hadiani over the 'B' Schedule suit
properties shall not transfer from Hadiani to the plaintiffs through the sale
deed vide Ext.3, then the question of transfer of title of the said suit
properties from the plaintiffs to the defendants through the so called gift
deed dated 24.07.1979 shall not arise.
When the defendants have failed to substantiate their title and
possession over the suit properties by filing and proving the so called gift
deed dated 24.07.1979 in question, then at this juncture, it cannot be said
that, the burden of proving the due and proper execution of the
documents by Hadiani Pradhanuni in favour of the plaintiffs has not been
discharged properly by the plaintiffs, because the above pleas of the
defendants in para No.8 of their plaint regarding their admissions to the
title and possession of the plaintiffs over the 'B' Schedule properties is
ultimately/ indirectly establishing the due and proper execution of the sale
deed vide Ext.3 by Hadiani Pradhanuni in respect of the suit properties in
favour of the plaintiffs. Because, the defendants have admitted the title of
the plaintiffs over the suit properties by relying upon a document i.e. the
so called gift deed dated 24.07.1979, but as per law, they (defendants)
cannot resile from the same.
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The conclusion drawn above finds support from the ratio of the
following decision:-
110 (2010) CLT--535 & 2010 (Supp.II) OLR--
781--Guru Charan Pattnaik & Ors. Vrs. Bijay
Kumar Pattnaik--(Para 6)--If a party relies on a
document, it cannot resile from the same.
Therefore, the judgment and decree passed by the 1st Appellate
Court declaring the right, title and interest of the plaintiffs over the suit
properties directing the defendants to give vacant possession of the same
to the plaintiffs after setting aside the judgment and decree of the
dismissal of the suit of the plaintiffs passed in T.S. No.12 of 1995 by the
Trial Court cannot be held as erroneous. For which, the decisions relied
upon by the appellants (defendants) indicated in Para No.15 of this
judgment are not applicable to this appeal at hand on facts as discussed
above.
18. As per the discussions and observations made above, when the
judgment and decree passed by the First Appellate Court in T.A. No.65 of
1999 in setting aside the judgment and decree passed by the Trial Court is
held as not erroneous, then at this juncture, the question of interfering
with the same through this 2nd appeal filed by the appellants (defendants)
does not arise.
Therefore, there is no merit in the 2nd appeal of the appellants
(defendants). The same must fail.
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19. In result, the 2nd appeal filed by the appellants (defendants) is
dismissed on merit, but without cost.
The judgment and decree passed by the 1st Appellate Court in T.A.
No.65 of 1999 in setting aside the judgment and decree of the Trial Court
passed in the suit vide T.S. No.12 of 1995 is confirmed.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
28th June, 2024//Utkalika Nayak//
Junior Stenographer
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack
Date: 02-Jul-2024 16:31:37
