In a first appeal regarding title and possession of suit land, the High Court dismissed the appeal upholding the lower courts' rejection of a photocopy partition document (Ext. B) as inadmissible due to lack of foundation and signature, affirming the suit decree under T.P. Act Section 106.
Appeal dismissed; no order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA : CUTTACK RSA NO.478 OF 2009
In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Ad hoc Additional District Judge, First Track Court-II, Kandhamal, Phulbani in RFA No. 34 of 2009 (02 of 2007).
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Bhaskar Pradhan :::: Appellant.
-:: VERSUS ::-
Narahari Pradhan :::: Respondent.
Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.
For Appellant … M/s. Maheswar Mohanty, B.K. Nayak and R.K. Das, Advocates For Respondent … Mr. R.Ku. Sahoo, Advocate ------ P R E S E N T : THE HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing and Judgment: 23.11.2021 ---------------------------------------------------------------------------------------
D.Dash,J . The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Ad hoc Additional District Judge, First Track Court-II, Kandhamal, Phulbani in RFA No. 34 of 2009 (02 of 2007).
The Respondent as the Plaintiff has filed the suit for declaration of his right, title, interest and possession over the suit land with further prayer for recovery of the possession of the suit house from the
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Appellant-Defendant. The suit having been decreed, the present Appellant-Defendant being aggrieved had filed the First Appeal which has also been dismissed.
Krushna. The suit land was subsequently recorded in his name under plot No. 259. He then constructed the house over that land. In order to earn his livelihood, the Plaintiff came from his village to G.Udayagiri and worked in a shop as a salesman. Subsequent thereto, he started a grocery shop of his own independently, brought his brother Biswanath Pradhan and got him settled at village Raikia. Thereafter he brought his
next younger brother i.e. the Defendant in the year 1970 to provide him good education but that move failed. So in the year 1985, he gave some money to him to start a small grocery shop at village Malansuga that there also the Defendant failed. In 1988, again accepting the request of
the Defendant, the Plaintiff allowed him to stay in his house as a monthly tenant on payment of Rs.50/- per month. The rent subsequent
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enhanced to Rs.300/- per month. The Defendant after sometime stopped
paying the rent. So the Plaintiff issued noticed under section 106 of the T.P. Act terminating the tenancy. Having received the said notice, the Defendant’s response surprised the Plaintiff when he claimed exclusive right over the suit land and denied the Plaintiff to have having any right, title and interest over the same. It was claimed by the Defendant that he got the suit house in his share in a partition effected in the year 1992. So the Plaintiff finding no other way filed the suit.
the suit land and house. He claimed to be exclusive owner in possession of the suit land having been allotted towards his 1/4th portion in the partition. It is his case that the land under plot No. 259 was jointly acquired by the Defendant and his brother including the Plaintiff by spending the money from the joint family nucleus but the sale deed had been made in the name of the Plaintiff as he was eldest among them. He further claimed that the land under said plot was divided into four parts and the portion over which the said house stand had fallen in his share.
Upon evaluation of evidence first of all coming to issue as to ownership of the Plaintiff as claimed over the suit land vis a vis ownership of the Defendant as projected in respect of the suit land and house, the answer
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has been rendered in favour of the Plaintiff holding him to be the exclusive owner of the property in question as it is his self acquired property. This has practically led the Trial Court to pass the decree in favour of the Plaintiff for eviction of the Defendant.
The First Appellate Court being moved has gone to discuss the document proved from the side of the Defendant i.e. one photocopy nomenclatured as ‘SAMJHOTANAMA’ marked Ext. B. Upon consideration of the evidence on record, the First Appellate Court has held that Ext. B to be of no aid to the case of the Defendant.
Accordingly, accepting the registered sale deed standing in favour of the Plaintiff and also the record of right etc, the judgments and decrees passed by the Trial Court have been confirmed.
submits that the Lower Appellate Court has erred in law in misconstruing Ext. B and in reading the same without reference being made to the averments taken in para-7 of the written statement. He therefore submits that the finding of the Lower Appellate Court that Ext. B does not stand to support the case of the Defendant is wholly erroneous and the same ought to have been held to be a formidable evidence as to the partition of the total property as amongst Plaintiff, Defendant and other brother as also allotment of the suit land in the
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share of the Defendant in the said partition. He further submits that on the face of the admission of the Plaintiff as would be seen from that Ext. B as to the allotment of 1/4th over the total land to the Defendant, the courts below ought to have given due regard to the same when the said aspect stands corroborated by the oral evidence coming from the lips of D.Ws. 1, 2 and 3. He thus submits that the above are the substantial questions of law which are required to be answered in this Appeal.
Admittedly, the land in question was owned by one Krushna Ch. Nayak who by registered sale deed dated 16.4.68 has sold the same to the Plaintiff for valid consideration. The land has been mutated in the
name of the Plaintiff in the record of right. When the Defendant state that it has been purchased from out of the surplus of the income of the joint family nucleus, no such evidence on record has come as to how much land that the joint family had, what was the income therefrom and
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what was remaining as the surplus and that too in whose hands. The other document projected by the Defendant is that so called ‘SAMJHOTANAMA’ that has been marked Ext. B. The document as placed is a photo copy. No such evidence is there on record as to who made the photo copy and who had then produced the original for being so copied. In the first page as also on the reverse of that page of that document signature of no one finds place. On the next page on one side five persons including Plaintiff and Defendant and their father and brother find mention whereas on the left side signature of few others appear. Going through the contents of said Ext. B, this Court also finds nothing to have been indicated as regards the purchase of the property with the help of joint family funds and that the Plaintiff was merely a namelender for the said purchase or that he being the eldest among the brothers, it had been so purchased. First of all, said document Ext. B has been rightly held as in admissible in evidence for the simple reason that no foundation has been laid for bringing that document as secondary evidence and the other reason as already stated. The relevant pleading in
the written statement providing the reference to the document Ext. B being gone through and considered with the evidence on record; this Court finds no reason/justification to say that the view taken by the First
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Appellate Court in discarding Ext. B for giving no weightage to the same for any purpose whatsoever is erroneous on facts and law.
(D. Dash),
Judge.
Aksethy
2 issues framed by the court
Whether the photograph of 'SAMJHOTANAMA' marked Ext. B constitutes admissible evidence of partition and joint family purchase despite lack of original and authority to copy.
Whether the lower appellate court erred in law by rejecting Ext. B and holding the plaintiff as exclusive owner of the self-acquired property.
2 provisions across 2 enactments
Bhaskar Pradhan
Narahari Pradhan
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
