Dismissed

Damayanti Sen v. Chhabirani Sen

Orissa HC5 Dec 2016RSA/153/2011

Case brief

AI extract

What is this about?

The Hon'ble High Court of Orissa dismissed an appeal in a partition suit, upholding the lower appellate court's decision to allow the previous appeal based on the Benami Transactions (Prohibition) Act, 1988. The Court also expunged unwarranted adverse remarks made by the appellate judge against the trial machine officer.

What did the court decide?

The appeal was dismissed; adverse remarks against the trial Presiding Officer were expunged.

Damayanti Sen Vs Chhabirani Sen — Partition | Orissa HC (2016)

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HIGH COURT OF ORISSA: CUTTACK

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RSA No.153 of 2011

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From the judgment and decree dated 25.1.2011 and 4.2.2011 respectively passed by the learned District Judge, Baleswar in R.F.A No.54 of 2003 reversing the judgment and decree dated 31.3.2003 and 10.4.2003 respectively passed by the learned Addl. Civil Judge (Senior Division), Balasore in T.S. No.400 of 1994.

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----------Damayanti Sen …. Appellant Versus Chhabirani Sen & others …. Respondents For Appellant … Mr.D.P.Mohanty, Advocate For Respondents … None

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing: 24.11.2016 : Date of judgment: 05.12.2016

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Dr. A.K.Rath, J Defendant no.1 is the appellant against a reversing judgment in a suit for partition.

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2. The brief facts necessary for disposal of the appeal are that plaintiff and defendant no.1 purchased Ac.0.19 dec. of land by means of a registered sale deed dated 20.08.1975 for a consideration of Rs.9000/-. They remained in possession of the same as joint owners. Husband of defendant no.1 installed an ice factory in the name and style “Sri Laxmi Ice Factory’’ over a portion of the same. Several pucca houses were built up on other portions of Schedule-Ka

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land and let out to different persons on monthly rent. Husband of defendant no.1 was collecting rent and paying half of the same to the plaintiff. Defendant nos.3 to 23 are tenants of the rented houses. Defendant No. 2 purchased Schedule-Kha land comprising Ac. 0.10 dec. situated adjacent to Schedule-Ka land by registered sale deed dated 2.1.1981. During major settlement operation, the settlement authorities recorded the purchased land of the plaintiff, defendant no.1 and defendant no.2 under one khata comprising two plots. As per major settlement record of right of 1986, defendant no.2, plaintiff and defendant no.1 become owner of Ac.0.289 dec. appertaining to Major Settlement Plot Nos.149 and 153. Since defendant Nos.1 and 2 did not agree for an amicable partition, the plaintiff filed the suit.

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3. Pursuant to issuance of summons, defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. Defendant no.1 challenged the maintainability and valuation of the purchased land. It is stated that she is the exclusive owner in possession of the entire land from the date of her purchase. Her husband and father were running ice factory and collecting rent from the tenants. Plaintiff and her husband have no right or possession over the suit land.

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4. Defendant No. 2 though filed a written statement but did not contest the suit.

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5. On the inter se pleadings of the parties, learned trial court struck seven issues. To substantiate the case, the plaintiff had examined two witnesses and on her behalf, five documents had been exhibited. The defendants had examined five witnesses and on their behalf, thirteen documents had been exhibited. The suit was dismissed. Aggrieved by the judgment and decree of the learned trial court, the plaintiff had filed RFA No.54 of 2003-I in the court of

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learned District Judge, Baleswar. The learned lower appellate court came to hold that the entire exercise of the plaintiff and defendant no.1 was uncalled for and wholly irrelevant after enactment of Benami Transactions (Prohibition) Act, which came into force with effect from 5.9.1988. Once a registered sale deed of 1975 comes to the forefront describing plaintiff and defendant no.1 as copurchasers, no oral evidence is permissible to assail the document after coming into force of Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as “the Act, 1988”). Learned trial court has not delved into that. Further the evidence and argument advanced by defendant no.1 are incongruous. Relying on Section 4 of the Act, 1988 learned lower appellate court came to hold that after 5.9.1988, the court cannot pass a decree holding that even though the land in question stands recorded in the name of a person, he or she is not the real owner. Held so, the learned lower appellate court allowed the appeal.

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6. Heard Mr. D.P. Mohanty, learned counsel for the appellant.

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7. The major settlement operation was published on 30.3.1986. The suit land has been recorded in the name of the plaintiff and defendant nos.1 and 2. They are treated to be joint owners. No steps have been taken by the defendants 1 and 2 for correction of record-of-right. With regard to construction of house over the suit land, the lower appellate court came to hold that if a coowner constructs house on the joint property without partition by metes and bounds, he takes the risk to himself and he cannot claim equity.

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8. The Act 1988 was enacted with solemn aim to prohibit benami transactions and the right to recover property held benami

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and for matters connected therewith or incidental thereto. The said Act came into force with effect from 5.9.1988. Section 4 of the Act provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. Subsection (2) of Section 4 of the Act, 1988 provides that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. Thus Section 4 of the Act puts to an end to the claim of benami land owners.

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9. The learned lower appellate court has rightly held that the property has been purchased by the plaintiff and defendant nos.1 and 2. In the major settlement, their names have been found place. In the wake of the aforesaid the appeal does not involve any substantial question of law. Accordingly, the same is dismissed.

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10. Before parting with the case, this Court observes that the learned lower appellate court has given some adverse remarks against the Presiding Officer of the learned trial court and held that with an oblique motive, learned trial court dismissed the suit. Time and again the apex Court reminded all concerned that using intemperate language and castigating strictures on the Judges of the lower court judiciary diminishes the image of the judiciary in the eyes of public. In Ishwari Prasad Misra v. Mohammad Isa, AIR 1963 SC 1728, P.B Gajendragadkar, J (as he then was) speaking for the Bench stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against

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lower judiciary and observed that the concerned Judge has no remedy in law to vindicate his position.

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11. There is a well known adage that a Judge who has not committed an error is yet to be born. May be the judge passed a wrong order; but that does not mean that even wrong order should be visited with such adverse remarks. The adverse remark against the Presiding Officer of the learned trial court is wholly unwarranted and the same is expunged.

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Registry is directed to keep a copy of the judgment on the personal file of the learned Judicial Officer.

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……………………….. DR. A.K.RATH, J.

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Orissa High Court, Cuttack. The 5^th December, 2016/ Pradeep .

Damayanti Sen v. Chhabirani Sen

Case brief

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Damayanti Sen v. Chhabirani Sen

Case brief

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