Dismissed

Lingaraj v. Abhimanyu

Orissa HC2 May 2018SA/291/1990

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed a second appeal challenging a confirming judgment and decree. The Court held that the Additional District Magistrate was not a necessary party to the suit, the Order of Restoration was passed de hors jurisdiction as the sale deeds were prior to the Act's commencement, and the appellate court's finding regarding the executant's illiteracy was perverse. The appeal

What did the court decide?

The appeal was dismissed. No order as to costs.

Lingaraj Vs Abhimanyu — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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S.A.No.291 of 1990

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From the judgment and decree dated 31.7.90 and 7.8.90 respectively passed by Mr.S.K.Panda, learned District Judge, Phulbani in T.A.No.9 of 1988 confirming the judgment and decree dated 21.3.88 and 4.4.88 passed by the learned Additional SubJudge, Phulbani in T.S.No.11 of 1987.

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Lingaraj @ Linga Nayak and another …. Appellants Versus Abhimanyu Bhoi …. Respondent For Appellants -- Mr.S.P.Mishra, Sr.Advocate Ms.Neha Sharma, Advocate For Respondent -- Mr.Siddhartha Mishra, Advocate

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing :16.4.2018 & Date of Judgment:2.5.2018

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Dr.A.K.RATH, J. Defendant nos.1 and 2 are the appellants against a

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confirming judgment.

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The plaintiff-respondent instituted the suit for declaration of title, recovery of possession and set aside the order of mutation passed by the Tahasildar in Mutation Case No.78 of 1983. The case of the plaintiff is that one Basudev Naik was the original owner of the suit land. He died leaving behind him two sons, namely, Lingaraj @ Linga Nayak and Nisakara Nayak, defendant nos.1 and 2. After death of Basudev, defendant nos. 1 and 2 inherited the suit property. The suit land fell to the share of defendant no.2 in the partition. He sold the same to one A.Laxman Patra, defendant no.4 and his wife, A.Surama Patra, defendant no.3 by means of two registered sale deeds dated 18.7.1963 and 11.1.1965 respectively for valid consideration and thereafter delivered possession. Defendant no.4 purchased the suit land in favour of his wife. On 30.6.1969 defendant no.4 sold the said land to the plaintiff by means of a registered sale deed for valid consideration and thereafter delivered possession. The suit plot had been recorded in the name of the plaintiff in the record of right. It was further pleaded that defendant no.1 was an attesting witness in both the sale deeds. He had no semblance of right, title and interest over the suit land. But then, on the report of the Social Welfare Extension Officer, Tikabali, the S.D.O., Baliguda initiated O.L.R. Case No.27 of 1977 against him under Section 23 of the Orissa Land Reforms Act (“O.L.R.Act”). Defendant nos.1 and 4 were parties to the said proceedings. After due enquiry, the S.D.O., Baliguda dropped the case on 7.12.1979 holding that the case is not maintainable. Against the said order, defendant no.1 filed appeal before the A.D.M., Phulbani. By order dated 21.8.1981, the appellate authority directed to restore the suit plots

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in favour of defendant no.1. According to the plaintiff, the sale transactions were effected before coming into operation of the O.L.R.Act. The A.D.M. had no jurisdiction to pass the order. With this factual scenario, the suit was instituted seeking the reliefs mentioned supra.

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Defendant no.1 filed written statement denying the assertions made in the plaint. The case of defendant no.1 was that the suit property was the joint property of defendant nos. 1 and 2. The same had not been partitioned. Defendant no.2 had no exclusive right to sell the said land. Defendant nos. 1 and 2 mortgaged their kitchen garden to defendant nos.3 and 4. Defendant nos. 3 and 4 had fraudulently obtained their signatures on the sale deeds. Neither consideration was paid, nor delivery of possession was made. They are scheduled caste persons. Defendant nos. 3 and 4 do not belong to scheduled caste or scheduled tribe. No permission was accorded by the revenue authority for alienation of the land. The alienation was null and void. The A.D.M. had rightly passed the order. He is in possession of the suit land. The civil court has no jurisdiction to try the suit.

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Defendant no.4 filed written statement supporting the stand of the plaintiff. Defendant nos. 1 and 3 were set ex parte.

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Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary to substantiate their cases. Learned trial court decreed the suit holding that there was partition of the properties between the defendant nos. 1 and 2. The suit land fell to the share

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of defendant no.2. No fraud was played on defendant no.2, when he executed the two sale deeds. Permission of the revenue authority was not necessary for execution of the sale deeds, Exts.7 and 8. Possession of the suit land was delivered to defendant no.4. Defendant no.4 and his wife alienated the land to the plaintiff under Ext.1. The proceeding under the O.L.R. Act was without jurisdiction and void. The plaintiff was not a party to that case. The decision of the A.D.M. is not binding on him. Order of mutation of the land in favour of defendant no.1 is void. Unsuccessful defendant nos. 1 and 2 filed T.A.No.9 of 1988 before the learned District Judge, Phulbani, which was eventually dismissed.

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The Second Appeal was admitted on the following substantial questions of law:

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“1. Whether order of the Addl. District Magistrate under the O.L.R.Act can be declared to be invalid without such officer being made party to the suit?

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Whether the sale deeds dated 18.07.1963 and 11.01.1965 vide Exts.7 and 8 are void, since no permission to alienate the land under Sec.23 of the Orissa Land Reforms Act was accorded by the competent authority?

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Whether the learned lower appellate court is justified in dismissing the appeal when it came to a conclusion that the vendors of the sale deeds are schedule caste illiterate persons and the documents are not read over and explained to them ?”

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Heard Mr.S.P.Mishra, learned Senior Advocate along with Ms.Neha Sharma, learned Advocate for the appellants and

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Mr.Siddhartha Mishra, learned Advocate on behalf of Mr.R.P.Mohapatra, learned Advocate for the respondent.

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Mr.S.P.Mishra, learned Senior Advocate for the appellants submitted that the substantial questions of law enumerated in grounds no.1 and 2 may not arise for consideration. He submitted that learned appellate court is not justified in dismissing the appeal, when it came to a conclusion that the vendors of the sale deeds are scheduled caste illiterate persons and the contents of the sale deeds had not been read over and explained to them. To buttress the submission, he placed reliance on the decisions in the case of Mst.Farid-un-nisa v. Munshi Mukhtar Ahmad and another, A.I.R. 1925 Privy Council 204, Musi Dei v. Labanya Bewa and another, AIR 1986 Ori. 242, Narayan Mishra and others v. Champa Dibya (dead) and others, AIR 1986 Ori. 53 and Narayan Parida v. Artabandhu Jena, 1993 (II) OLR 485.

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Per contra, Mr.Siddhartha Mishra, learned Advocate for the respondents submitted that defendant no.2 had executed two successive sale deeds. Neither he filed written statement, nor examined as witness. Defendant no.1 was the attesting witness in both the sale deeds. Thus defendant no.1 cannot assail the execution of the sale deeds. The sale deeds had been executed for a valid consideration and possession of the lands had been delivered to the vendor.

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Since this Court has formulated the substantial questions of law, it is desirable to answer the same. In

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Jogendrasinhji Vijaysingh v. State of Gujarat and others, (2015) 9 SCC 1, the question arose before the Supreme Court as to whether in a petition for issue of a writ of certiorari under Article 227 of the Constitution of India, the tribunal/court whose order is impugned in a petition must be a party to the petition so that the writ sought from the court can be issued against the tribunal/court ? On a survey of decisions, the apex Court in paragraph-43 of the report held thus:

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Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties. To give another example: in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable.”

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The law laid down by the apex Court in the case of Jogendrasinhji (supra) in the context of an application under Article 227 of the Constitution of India proprio vigore applies to the facts

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of this case as well. The Additional District Magistrate is neither necessary nor proper party to the suit.

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The sale deeds were executed on 18.7.1963 and 11.1.1965. The Orissa Land Reforms Act came into force with effect from 1.10.1965. The A.D.M. de hors its jurisdiction in passing the order of restoration. The order is non-est in the eye of law.

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The principle governing the execution of deed by an illiterate woman is well known. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others , AIR 1963 SC 1203, the apex Court held thus:

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“I n India paradahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as by the pardah system they are practically excluded from social intercourse and communion with the outside world.

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xxx xxx xxx

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It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not.

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xxx xxx xxx

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In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, 13 Moo Ind App 419 (PC) the Privy Council held that as regards documents taken from pardahnashin women the court has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the

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ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a paradahnashin woman.

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xxx xxx xxx

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The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial.”

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Mt.Farid-un-nisa (supra) has been followed in Mst. Kharbuja Kuer (supra). Narayan Mishra (supra), Musi Dei (supra) and Narayan Parida (supra) reiterated the principles laid down in Mst. Kharbuja Kuer. There is no quarrel over the proposition of law.

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Both the courts below concurrently held that there was partition of the suit schedule land. Defendant no.2 alienated the suit land in favour of defendant nos.3 and 4. Defendant no.2 neither filed the written statement, nor examined as a witness. Defendant no.1 was the attesting witness in both the sale deeds. When the executant of the sale deeds has not come forward, it is difficult on the part of the Court to hold that he was an illiterate person. The finding of the appellate court on that score is perverse. The substantial questions of law are answered accordingly.

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