Orissa High Court
Bipin @ Bipin Bihari Rout& Ors vs Kabita Swain on 11 April, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 23-Apr-2025 18:11:49
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.333 of 2003
(From the judgment dated 05.04.2003 passed by the learned Ad hoc
Additional District Judge (FTC), Jagatsinghpur in Title Appeal
No.105 of 2001)
Bipin @ Bipin Bihari Rout& Ors. .... Appellant (s)
-versus-
Kabita Swain .... Respondent (s)
Advocates appeared in the case through Hybrid Mode:
For Appellant (s) : Mr. Arun Kumar Mishra, Adv.
For Respondent (s) : Mr. Panchanan Panigrahi, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-25.03.2025
DATE OF JUDGMENT:-11.04.2025
Dr. S.K. Panigrahi, J.
1. The Appellants challenge the judgment dated 05.04.2003 passed by the
learned Ad hoc Additional District Judge (FTC), Jagatsinghpur in Title
Appeal No.105 of 2001 remanding the Title Suit No.28 of 1995/ 53 of
2001 to the trial court i.e. the learned Civil Judge (Junior Division),
Jagatsinghpur for a fresh trial.
Location: ORISSA HIGH COURT, CUTTACK
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The present respondent, claiming to be a co-sharer of joint undivided
landed properties, filed the suit T.S. No. 28/53 of 1995/2001 before the
Civil Judge, Junior Division, Jagatsinghpur, impleading the present
appellants as defendants. The present respondent sought a declaration
that a Sale Deed dated 16.06.1990 was void and illegal, and prayed for
partition of the suit property, claiming a 1/4th share therein.
(ii) The present respondent contended that she is the daughter of Dhruba
Rout and Padmabati, and the sibling of the present appellants. She
claimed to have inherited Lot No. 1 of the schedule, which belonged to
Dhruba Rout, and asserted that, upon the death of both her parents,
she was entitled to a 1/4th share in the property. The present
respondent further asserted that Plot Nos. 2808 measuring 0.05 decs.
and 2819 measuring 0.07 decs. in Mouza Sanra originally belonged to
Padmabati, who had been gifted the land by one Pasori Bewa.
(iii) The present respondent further contended that the present appellant
fraudulently obtained a registered Sale Deed from Padmabati on
26.06.1990. She claimed that Padmabati, being a pardanashin woman
and illiterate, had been misled into executing the Sale Deed, under the
false impression that she was signing a power of attorney for her care.
The present respondent argued that the Sale Deed was void and that,
Location: ORISSA HIGH COURT, CUTTACK
after the present appellants refused to partition the property, she was
compelled to file the suit.
(iv) The present appellants, as defendants, contended that they were the
children of Dhruba Rout and Padmabati, while the present respondent
was the natural daughter of Mohani Pal, their maternal uncle. They
argued that due to Mohani Pal's poor financial condition, Dhruba had
brought the present respondent into their care, incurred expenses for
her marriage, and that her natural father acted as the Karta in her
marriage. The present appellants further contended that, after
Dhruba's death, they distanced themselves from the present
respondent due to her ill-tempered behavior. They claimed that the
present respondent had no right to challenge the Sale Deed executed
on 26.06.1990 and, being a stranger, was not entitled to file for
partition.
(v) The Civil Judge, Junior Division, Jagatsinghpur, framed six issues in
this case. Upon examining the material on record, including the
present respondent's school certificate, transfer certificate, and the
testimonies of witnesses (four on behalf of the present respondent and
three on behalf of the present appellants), the Court found no
clinching or reliable evidence to substantiate the present respondent's
claim of being the daughter of Dhruba Rout. The witnesses, who were
neither neighbors nor relatives of the deceased Dhruba Rout, did not
possess any special knowledge relevant to the matter. In accordance
with Section 50 of the Indian Evidence Act, the Court noted that the
prerequisites for establishing the relationship between the present
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respondent and Dhruba Rout through special knowledge were not
fulfilled.
(vi) The Civil Judge, Junior Division, Jagatsinghpur also noted that the
school transfer certificate showed the present respondent was
admitted to school on 08.07.1975, with a date of birth of 9.2.1967, and
she left school on 01.04.1978. However, inconsistencies were found,
including the birth date written as 09.02.1987 in words. The
headmaster of the school was not examined, and no explanation was
provided for this omission. In the absence of proof, the court could not
establish the present respondent as the sister of Dhruba Rout.
(vii) Further it was found that the co-villagers examined as witnesses did
not possess special knowledge regarding the respondent's
relationship, and the present appellants' witnesses, who were their
neighbors, testified that the present respondent referred to Malati and
Mohani Pal as her mother and father.
(viii) The court concluded that the present respondent was not the natural
daughter of Dhruba and Padmabati and, as a stranger to the family,
was not entitled to share in the joint family property.
(ix) Regarding the Sale Deed, the signatures of Padmabati and two
witnesses, namely her husband Dhruba and Bhaskar Rout, were
affixed on each page. The court found no convincing evidence to
prove that Padmabati was pardanashin or illiterate. One of the present
respondent's witnesses even stated that Padmabati had been the
secretary of the Mahila Samiti of Village Sanra. Additionally, another
Sale Deed dated 31.07.1974, produced by the present appellants,
Location: ORISSA HIGH COURT, CUTTACK
indicated that Padmabati had previously sold land to one Srinath
Mohanty, contradicting the claim of illiteracy. The court concluded
that the Sale Deed executed on 26.06.1990 was not void or illegal under
Section 17 read with Section 28 of the Indian Registration Act. The
registration of the deed was not vitiated by any fraudulent activity.
(x) Furthermore, the court observed that the present respondent had
sought the declaration of the Sale Deed as void but had failed to value
the suit accordingly, nor had the court fee been paid on such
valuation. The Sale Deed was executed in 1990, but the suit was filed
in 1995, after the statutory period of limitation had expired. In light of
the facts and discussions, the court concluded that the Sale Deed
executed on 26.06.1990 was not void or illegal.
(xi) The matter was subsequently appealed before the Ad-hoc Additional
District Judge, Jagatsinghpur, in Title Appeal No. 105 of 2001.
(xii) The appellate court observed that there was no close relative examined
on behalf of the present appellant. It noted that the present respondent
had filed a compromise petition, which was not accepted by the court.
However, the appellate court directed that the suit be remanded to the
lower court, giving the present respondent an opportunity to prove
her relationship with Dhruba Rout by producing additional witnesses
under Section 50 of the Indian Evidence Act.
(xiii) Aggrieved by this order, the present appellants assert that the remand
is contrary to law and should be set aside.
Location: ORISSA HIGH COURT, CUTTACK
II. SUBMISSIONS ON BEHALF OF THE APPELLANTS:
3. Learned counsel for the Appellants earnestly made the following
submissions in support of his contentions:
(i) The Appellants submitted that the judgment passed by the Ad-hoc
Additional District Judge, Jagatsinghpur, is manifestly contrary to law
and liable to be set aside. The Lower Appellate Court failed to apply
its judicial mind appropriately, having disposed of the appeal in a
cursory and superficial manner, without proper appreciation of the
pleadings, evidence on record, and settled legal principles.
(ii) The Appellants further submitted that the Lower Appellate Court did
not record any finding of perversity, illegality, or material irregularity
in the judgment of the Trial Court. In the absence of such a finding, the
remand of the matter was wholly unjustified and unsupported by
cogent reasons.
(iii) The Appellants submitted that the Trial Court had afforded full
opportunity to the Respondent to provide evidence. The burden of
proof squarely lay upon the Respondent to prove her case. Once that
burden was not discharged, the Court was under no obligation to
allow her to fill the lacunae by way of remand. The impugned order
facilitating such a course is legally unsustainable and warrants
interference.
(iv) The Appellants further submitted that the direction issued by the
Lower Appellate Court to provide an opportunity to the Respondent
to establish her relationship with Dhruba Rout is devoid of legal
justification. The appellate court's assumption that such opportunity
Location: ORISSA HIGH COURT, CUTTACK
was not earlier afforded is contrary to the record and the Trial Court
proceedings.
(v) The Appellants submitted that the manner in which the appeal was
disposed of by the Lower Appellate Court is inconsistent with the
settled principles governing the exercise of first appellate jurisdiction.
As the final court of fact, the first appellate court was duty-bound to
examine the evidence in detail and render a reasoned judgment, which
it failed to do.
(vi) The Appellants submitted that the judgment of the Lower Appellate
Court is whimsical, arbitrary, and unsustainable in law. The court
failed to evaluate the evidence on record or apply settled principles.
The remand order, issued without adequate reasons, is more akin to
an administrative directive than a judicial pronouncement, and hence,
the impugned judgment is liable to be set aside.
III. SUBMISSIONS ON BEHALF OF THE RESPONDENT:
4. The Learned Counsel for the Respondent earnestly made the following
submissions in support of his contentions:
(i) The Respondent submitted that the Appellants have not approached
this Court with clean hands. It was contended that the Appellants
deliberately suppressed material facts and thereby obtained an interim
stay order from this Court.
(ii) The Respondent further submitted that she has a meritorious case on
record. However, due to the interim stay order passed by this Court,
she has been deprived of effective adjudication for over two decades.
Title Suit No. 28/53 of 1995/2001, instituted by her before the Court of
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the Civil Judge (Junior Division), Jagatsinghpur, has remained
pending for the past 23 years, thereby denying her access to timely
justice.
(iii) The Respondent submitted that the suit schedule property comprises
two lots. Lot No. I belonged to Dhruba Rout, who died leaving behind
the present Appellants and the Respondent, being his son and
daughters, respectively as his legal heirs. Accordingly, they succeeded
jointly to the said property, each entitled to an equal share. Lot No. II
originally belonged to Pasori Bewa, mother of Dhruba Rout, who
gifted the same to Padmavati, wife of Dhruba Rout. Upon the death of
Padmavati, the Appellants and the Respondent succeeded to her
estate, each having a 1/4th share.
(iv) The Respondent further contended that Appellants 1 and 2
fraudulently procured a sale deed dated 26.06.1990 from Padmavati in
respect of Plot Nos. 2808 and 2819 of Village Sanara and Plot No. 802
of Village Sanpur. It was submitted that Padmavati, being illiterate,
was misled into believing she was executing a power of attorney for
management of her affairs. Fraud was thus practiced both upon her
and the registering authorities. The sale deed was never acted upon
and no possession was delivered.
(v) It was specifically alleged that Plot No. 802 of Village Sanara did not
belong to Padmavati and was deliberately included in the sale deed
solely to confer jurisdiction upon the Jagatsinghpur Sub-Registrar's
Office, which clearly evidences the fraudulent intention to fabricate
territorial jurisdiction and mislead the registration authorities
Location: ORISSA HIGH COURT, CUTTACK
(vi) The Respondent stated that upon her request for an amicable partition
of the suit schedule properties being refused by the Appellants, she
was constrained to file Title Suit No. 28/53 of 1995/2001 seeking
appropriate relief before the Court of the Civil Judge (Junior Division),
Jagatsinghpur.
(vii) The Respondent further submitted that she had sought a remand
before the Lower Appellate Court to establish her relationship with
Dhruba Rout. The Appellate Court rightly noted, in terms of Section
50 of the Indian Evidence Act, that no neighbour or close relative who
could speak to the familial relationship had been examined during
trial. The prayer for remand was therefore justified well-founded, and
legally tenable.
IV. FINDINGS OF THE AD-HOC ADDITIONAL DISTRICT JUDGE (FTC),
JAGATSINGHPUR:
(i) The Ad-hoc Additional District Judge, Jagatsinghpur, in Title Appeal
No. 105 of 2001, observed that no close relatives had been examined on
behalf of the plaintiff-appellant.
(ii) While the plaintiff-appellant had claimed a 1/4thshare of the suit land
asserting that she is the daughter of Dhruba Rout, in support of her
claim she had produced a Transfer Certificate issued by a Government
Upper Primary School. The said document indicated that the appellant
was admitted to the school on 08.07.1975, with her date of birth
recorded as 09.02.1967. It further showed that she left the school on
01.04.1978, at which time she was studying in Class VI.
Location: ORISSA HIGH COURT, CUTTACK
(iii) The Ad-hoc Additional District Judge, Jagatsinghpur further noted
that the plaintiff-appellant had filed a compromise petition, which had
not been accepted.
(iv) Considering the nature of the claim, the Ad-hoc Additional District
Judge, Jagatsinghpur remanded the suit to the Civil Judge, Junior
Division, Jagatsinghpur with a direction to provide the appellant a fair
and adequate opportunity to substantiate her claimed relationship
with Dhruba Rout by examining additional witnesses in accordance
with Section 50 of the Indian Evidence Act.
V. COURT'S REASONING AND ANALYSIS:
5. Heard the learned counsel for the Parties and perused the materials
placed on record.
6. In the instant matter, the Ad-hoc Additional District Judge,
Jagatsinghpur, in Title Appeal No. 105 of 2001, remanded the suit to
the Civil Judge, Junior Division, Jagatsinghpur with a direction to
provide the plaintiff-appellant a fair opportunity to prove her
relationship with the appellants and their father, Dhruba Rout,
through witnesses in accordance with Section 50 of the Indian
Evidence Act, 1872.
7. Section 50 of the Indian Evidence Act, 1872 provides for the
admissibility of opinion in matters concerning relationships. The
provision is replicated hereinunder:
"50. Opinion on relationship, when relevant. --When the
Court has to form an opinion as to the relationship of one
person to another, the opinion, expressed by conduct, as to
the existence of such relationship, of any person who, as a
Location: ORISSA HIGH COURT, CUTTACK
member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a
marriage in proceedings under the Indian Divorce Act (4 of
1869), or in prosecutions under
Sections 494, 495, 497 or 498 of the Indian Penal Code (45
of 1860)."
8. At this juncture, this Court finds it expedient to examine the contours
of remand under the provisions of Order XLIII Rule 1(u) and Order
XLI Rule 23-A of the Code of Civil Procedure, 1908.
9. Order XLIII Rule 1(u) permits an appeal against an order of remand
passed under Rule 23 or Rule 23-A of Order XLI.
10. A remand under Order XLI Rule 23-A is permissible only in limited
circumstances. It is not to be exercised as a matter of routine or for the
mere reason that some evidence was not adduced or considered.
11. The Supreme Court in this regard in Sirajudheen v. Zeenath1, observed
that according to Order XLI Rule 23A, a suit cannot be remanded, for
de novo by the Trial Court, only because certain evidence was not
produced.
12. Coming to the factual matrix of the present case, it is noted that the
Civil Judge, Junior Division, Jagatsinghpur had examined the material
on record, including the evidence of the plaintiff and other witnesses.
The plaintiff relied primarily on a School Certificate and Transfer
Certificate No other evidence was adduced, nor were any relatives or
neighbours having special knowledge of the familial relationship
examined to prove the alleged relationship with Dhruba Rout.
2023 SCC OnLine SC 196.
Location: ORISSA HIGH COURT, CUTTACK
13. It is imperative to note here that the burden of proof lies on the party
who asserts the fact, as per Section 101 of the Indian Evidence Act,
which states as hereinunder:
"101. Burden of proof.--Whoever desires any Court to
give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that
those facts exist.
When a person is bound to prove the existence of any fact,
it is said that the burden of proof lies on that person."
14. In the present case, the respondent asserted co-ownership and claimed
to be a co-sharer of joint family properties, and therefore, the burden
of proof squarely lay on her to prove such relationship.
15. The Lower Appellate Court, despite observing that the respondenthad
not adduced any relevant evidence or produce any witness with
special knowledge of her familial relationship, remanded the matter
on the sole ground that she should be given another opportunity.
However, it is not the case that the respondent had not been granted
adequate opportunity before the Trial Court.
16. A remand cannot be ordered merely because a party failed to produce
relevant witnesses, especially when the opportunity to do so had
already been afforded. Courts are not expected to fill gaps in the
evidence or cure deficiencies in a party's case.
17. The power of remand under Order XLI Rule 23-A CPC must be
exercised sparingly and only when there exists sufficient cause. The
appellate court must be satisfied, based on cogent and compelling
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reasons, that a retrial is imperative; otherwise, the remand may result
in a substantial miscarriage of justice.
18. In the instant case, the Lower Appellate Court has not recorded any
finding or cogent reasoning to indicate that the evidence on record
was insufficient to determine the issues. In the absence of such
satisfaction, the direction for retrial benefit is wholly unsustainable.
Rather, the Court appears to have granted the parties a second
opportunity despite adequate opportunity having already been
accorded during the trial.
19. Accordingly, this Court finds that the remand order passed by the
Lower Appellate Court is unsustainable in law, being passed without
proper application of judicial mind and contrary to settled legal
principles.
VI. CONCLUSION:
20. In light of the foregoing, this appeal is allowed.
21. The impugned judgment dated 05.04.2003 passed by the learned Ad
hoc Additional District Judge (FTC), Jagatsinghpur in Title Appeal
No.105 of 2001 remanding the Title Suit No.28 of 1995/ 53 of 2001 to
the trial court i.e. the learned Civil Judge (Junior Division),
Jagatsinghpur for a fresh trial is hereby set aside.
22. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 11th April, 2025
