Dismissed¶67

Sudha @ Mamata Mohanty v. Sabita Verma

Orissa HC1 Mar 2024RSA/11/2022

Case brief

AI extract

What is this about?

Second appeal under Section 100 CPC dismissed (judgment 01.03.2024, High Court of Orissa at Cuttack, D. Dash, J.). Themes: sale by registered Power of Attorney holder; cancellation of registered sale deed held void; adverse inference against defendant who withheld herself from the witness box leaving written-statement claims unproved; burden of proof of fraud, manipulation and misrepresentation not discharged; maintainability objection for non-arraignment of the alleged owner-vendor Biswaranjan rejected; family arrangement document dated 03.05.1983; Khasmahal leasehold land settled under the Orissa Government Land Settlement Act, 1962; sale consideration Rs.25,80,000/-; trial decree C.S. No.385 of 2007 confirmed via R.F.A. No.08 of 2018; no order as to cost.

What did the court decide?

None; the Appeal stands dismissed with no order as to cost.

Sudha @ Mamata Mohanty Vs Sabita Verma — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

None; the Appeal stands dismissed with no order as to cost.

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Issue for consideration

Whether the Plaintiff's suit for declaration of right, title, interest and possession was maintainable when Biswaranjan — according to the Plaintiff the owner in possession and the vendor of the sale deed — was not arraigned as a party (substantial question of law urged by appellant's counsel on admission). +3 more

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Ratio / Principle

Defendant No.1, despite pleading ignorance of the Power of Attorney and alleging fraud and misrepresentation behind the sale deed, chose not to depose anything in support of her defence and withheld herself from the witness box; her written-statement version therefore remained unproved, and adverse inference is bound to be drawn against her case attacking the registered Power of Attorney standing in her favour and her execution of the registered sale deeds as Power of Attorney holder of her brother.

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Key takeaways

Defendant No.1's plea that she had merely intended to execute a deed of licence for temporary use of the vacant garden portion clearly appears to be a falsehood — her mother being alive and, on her own showing, the owner then — and rather shows that Defendant No.1 had authority over the land on behalf of its owner to part with its possession in favour of others.ratio¶60
The certified copy of the registered irrevocable Power of Attorney executed by Biswaranjan in favour of Defendant No.1 having been proved from the Plaintiff's side, Defendant No.1 does not say that the original was never in her custody — belying her claimed ignorance of the Power of Attorney.ratio¶56

Detailed headnote1 paragraphs

R.S.A. No.11 of 2022, High Court of Orissa at Cuttack (D. Dash, J.; judgment dated 01.03.2024): Second Appeal under Section 100 of the Code of Civil Procedure, 1908 by Defendant No.1 (Sudha @ Mamata Mohanty) against the judgment and decree dated 26.11.2021 & 04.12.2021 of the learned District Judge, Cuttack in R.F.A. No.08 of 2018 confirming the decree in C.S. No.385 of 2007, which had validated the registered sale deed dated 02.02.2005 executed by Defendant No.1 as irrevocable Power of Attorney holder of her brother Biswaranjan Pattnaik for Rs.25,80,000/- and declared her cancellation deed dated 30.06.2007 void. The substantial questions of law urged on admission — non-maintainability of the suit for want of arraigning Biswaranjan; allegedly perverse findings on the 03.05.1983 family arrangement, on Biswaranjan's execution of the Power of Attorney, and on the genuineness of sale deed Ext.4 — were held incapable of being countenanced: Defendant No.1 withheld herself from the witness box, leaving her written-statement case unproved and drawing adverse inference; her licence-deed plea was exposed as a falsehood indicating she had authority to part with possession for the owner; and the First Appellate Court was upheld in finding that she failed to discharge the burden of proving fraud, manipulation or misrepresentation. Appeal dismissed; no order as to cost.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A. No.11 of 2022

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In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 26^th November, 2021 & 4^th December, 2021 respectively passed by the learned District Judge, Cuttack in R.F.A. No.08 of 2018 confirming the judgment & decree dated 20^th May, 2017 & 21^st June, 2017 respectively passed by the learned 1^st Additional Civil Judge (Senior Division), Cuttack in C.S. No.385 of 2007.

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….
Sudha @ Mamata Mohanty Appellant
-versus-
Sabita Verma …. Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
-
For Appellant M/s.Siva Mohanty,
S.K. Mohanty, P.K. Giri,
P.R.Sahoo & B.N. Panda,
(Advocates)
For Respondent - M/s.D.P.Jena, S.Sahoo,
Syed Mahbood Ali,
Syed Afrose Ali & R.Swain
(Advocates),

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CORAM:

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MR. JUSTICE D.DASH

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Date of Hearing : 20.02.2024 : Date of Judgment: 01.03.2024 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of

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the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 26^th November, 2021 & 4^th

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December, 2021 respectively passed by the learned District Judge, Cuttack in R.F.A. No.08 of 2018.

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The Respondent, as the Plaintiff, had filed C.S. No.385 of 2007 in the Court of the learned 1^st Additional Civil Judge (Senior Division), Cuttack praying for declaring the registered sale deed dated 02.02.2005 executed by the present Appellant (Defendant No.1) on behalf of her brother, namely, Biswaranjan Pattnaik as his Power of Attorney holder as valid and declaring the deed of cancellation dated 30.06.2007 executed by Defendant No.1 cancelling the said registered sale deed dated 02.02.2005 as void, seeking a further declaration of her right, title, interest and possession over the suit land and the consequential relief of permanent injunction restraining the Appellant (Defendant No.1) from disturbing her possession. The suit stood decreed. The present Appellant (Defendant No.1), being aggrieved by the judgment & decree dated 20^th May, 2017 & 21^st June, 2017 respectively passed by the learned 1^st Additional Civil Judge (Senior Division), Cuttack in C.S. No.385 of 2007, carried the Appeal under section 96 of the Code, which too has been dismissed.

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2. It is pertinent to state at this stage that the mother of the Appellant (Defendant No.1) had been arraigned as Defendant

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No.2 in the suit and she when died during pendency of the suit, her name stood expunged as dead.

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3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

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4. Plaintiff’s Case:-

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The suit scheduled property originally belonged to Gobinda Charan Sahoo, who had sold the same to the mother of the Defendant No.1, Harapriya Pattnaik arraigned as Defendant No.2 (since dead) by registered sale deed dated 17.12.1958. Harapriya since the date of her purchase, was in possession of the said land. In a family arrangement/settlement under a document dated 03.05.1983, the suit land was allotted in the share of Biswaranjan Pattnaik, who is the son of the original Defendant No.2 and brother of the Defendant No.1. In view of that allotment of the suit land, the same was stood recorded in the name of Biswaranjan in the record of right published on 23.07.1988. it was Khasmahal lease hold property. The term of lease was scheduled to expire on 31.01.2003. So, one miscellaneous case, being filed in the year 2002 before the competent authority for permanent settlement of the suit land in favour of Biswaranja under the Orissa Government Land Settlement Act, 1962, the same was allowed by the Tahasildar by order dated 107.12.2004. Prior to

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that, on 31.03.2003, Biswaranjan had executed an irrevocable lawful of Attorney in favour of his sister (Defendant No.1). The Defendant No.1, exercising the power as the Power of Attorney of Biswaranjan, has sold the suit land to the Plaintiff by executing a registered sale deed on 02.02.2005 on receipt of valuable consideration of Rs.25,80,000/-. Basing upon that sale deed, the Plaintiff mutated the suit land in her favour and obtained the Record of Right in her name on 21.09.2005 and has been paying the rent to the State. The husband of the Plaintiff some time thereafter when refused the request of the Defendant No.1 to give her loan, the Defendant No.1, being aggrieved, executed one registered deed cancelling the said registered sale deed, which she had executed as the Power of Attorney holder of her brother Biswaranjan in favour of the Plaintiff on 02.02.2005. The cancellation deed was executed by the Defendant No.1 on 30.06.2007. The Plaintiff, having come to know about that after two years, filed the suit.

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5. The Defendant No.1, in her written statement, took the stand that the suit property was purchased by Harapriya and it was her stridhan property. She had constructed a bungalow over the suit land leaving setback space around the bungalow. Harapriya, being the rightful owner in possession of the suit land, it is stated that there was no family settlement and the property

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in question was never allotted to Biswaranjan at any point of time. She has also denied the factum of execution of any document on 03.05.1983 evidencing the family settlement. It is stated that Harapriya had never parted her interest over the property in favour of Biswaranja. The record of right which stood in the name of Biswaranjan is attacked to have been wrongly issued and to have been obtained by manipulation. Her case is that Biswaranjan stayed at Canada with his family having taken the citizenship of the country. The permanent settlement of the land in favour of Biswaranjan is stated to be void being the outcome of manipulation.

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She further states that Biswaranjan had never executed the Power of Attorney and registered the same in her favour at any point of time and it was never to her knowledge. The husband of the Plaintiff, by giving false impression and making false representation, has obtained the registered sale deed from the Defendant No.1, who had done so under an impression of executing and registering a deed of license allowing them to use the vacant portion of the land by raising a temporary shed for running one goldsmith workshop.

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So, it is that in the garb of taking a deed of license, the husband of the Plaintiff and the Plaintiff have somehow taken that registered sale deed by practicing fraud and basing on misrepresentation. It is stated that when the Defendant No.1

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came to know about that registered sale deed and detected that said registered sale deed as well as Power of Attorney said to have been executed by Biswaranjan in her favour are fabricated documents, she had to cancel the registered sale deeds dated 02.02.2005 in favour of the Plaintiff by executing a deed of cancellation. The sale deeds dated 02.02.2005 are stated to be invalid and not binding upon Defendant No.1. It is further stated that she was never in possession of the suit land and, therefore, had no occasion to deliver the possession of the suit land in favour of the Plaintiff.

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6. The Trial Court, on the above rival pleadings, has framed as many as eight issues. First of all, coming to answer issue nos.I & II touching upon the maintainability of the suit that Biswaranjan, being made not a party and as regards the existence of the registered Power of Attorney said to have been executed by Biswaranjan in favour of Defendant No.1, upon examination of the evidence and their evaluation, the answer has gone in favour of the Plaintiff. Then, ruling upon the other issue concerning the attack upon the registered sale deeds dated 02.02.2005 as made by the Defendant No.1, the Trial Court, after examination of the evidence and their assessment, has arrived at a conclusion that those sale deeds are not the outcome of fraud and misrepresentation and the Defendant No.1 has failed to discharge

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the burden lying upon her shoulder to establish all such facts by leading clear, cogent and acceptable evidence. Accordingly, the deed of cancellation executed by the Defendant No.1 cancelling the registered sale deeds dated 02.02.2005 in favour of the Plaintiff in respect of the suit land has been held to be of no value in the eye of law.

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7 . The Defendant No.1, being aggrieved by the judgment & decree dated 20^th May, 2017 & 21^st June, 2017 respectively passed by the learned 1^st Additional Civil Judge (Senior Division), Cuttack in C.S. No.385 of 2007 decreeing the suit and granting the reliefs to the Plaintiff, as prayed for, having carried the Appeal, has failed therein.

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The First Appellate Court, taking into account the contentions raised, having formulated the points for determination, has ultimately concurred with the findings of the Trial Court. Hence, the present Second Appeal is at the instance of Defendant No.1, who has suffered from the aforesaid judgments and decrees passed by the Trial Court as well as the First Appellate Court.

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8. Mr.Siva Mohanty, learned counsel for the Appellant submitted that the suit for declaration of right, title, interest and possession filed by the Plaintiff, without arraigning the Defendant No.1 stating her to be the Power of Attorney Holder of

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her brother, namely, Biswaranjan, who, according to the Plaintiff, was the owner in possession of the suit land and the vendor of her sale deed ought to have been held to be not maintainable. He further submitted that the findings of the First Appellate Court that the Plaintiff has proved through evidence that there was an amicable family arrangement between Harapriya, her husband and two sons on 03.05.1983 and the suit property had been allotted in favour of Biswaranjan clothing him with exclusive right, title, interest and possession over the same is the outcome of perverse appreciation of evidence and so also the finding that Biswaranjan had executed Irrevocable Power of Attorney in favour of Defendant No.1, who had executed the sale deed under that status is untenable. It was submitted that the finding of the First Appellate Court that the sale deed in question (Ext.4) is not the outcome of fraud but is a valid and genuine document is contrary to the weight of evidence on record. He, therefore, urged for admission of the Appeal to answer the above as the substantial questions of law.

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9. Mr.D.P.Jena, learned Counsel, who had entered appearance on behalf of the Respondent, assisting the Court in the matter of hearing on admission, submitted all in favour of the findings returned by the First Appellate Court in contending that on a detail discussion of the evidence both oral and documentary on

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record and keeping the settled position of law in view, those having been rendered, are not liable to be interfered in the Second Appeal.

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10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.

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11. The Plaintiff’s suit is based on the registered sale deeds dated 02.02.2005 executed by Defendant No.1 in respect of the suit land in her favour in the capacity as the Power of Attorney Holder of her brother Biswaranjan. When it is said by the Defendant No.1 that she had no knowledge and idea about such Power of Attorney, being executed and registered by her brother, the Defendant No.1 is not coming forward to say that she was never in possession of that original Power of Attorney. On the other hand, when the certified copy of the registered irrevocable Power of Attorney executed by Biswaranjan in favour of Defendant No.1 has been proved from the side of the Plaintiff, the Defendant No.1 is not saying that the original of the same was never in her custody. Interesting enough is to see the averments of the Defendant No.1 in her written statement to the effect that the husband of the Plaintiff, by giving false impression and making representation that she was required to execute a document for temporary use of the vacant garden portion by raising a purely temporary shed for use by the husband of the

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Plaintiff, has obtained said registered sale deed. But according to the case of the Defendant No.1, her mother was alive then and was the owner of the property. Therefore, the question of her coming forward to execute the deed of license allowing the husband of the Plaintiff to use the land in a particular manner clearly appears to be a falsehood. That rather shows that the Defendant No.1 had the authority over the land on behalf of its owner to part with the possession of the same in favour of others. Most interestingly, the Defendant No.1, having taken all such pleas in attacking the Power of Attorney to be not within her knowledge at any point of time and that the sale deed to have been taken from her by practising fraud and by way of misrepresentation, has not chosen to come to depose anything in support of her defence. She has withheld herself from the witness box. Therefore, the written statement version have remained without being proved. For that reason, adverse inference is bound to be drawn against the case projected by Defendant No.1 in attacking the registered deed of Power of Attorney standing in her favour as also the execution of the registered sale deeds by her in favour of the Plaintiff in her said capacity as the Power of Attorney holder of her brother.

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The First Appellate Court, as it appears, having gone through a detail verification and examination of the evidence both oral and documentary on record, has rightly held the

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Defendant No.1 to have failed to discharge the burden of proof that the Power of Attorney executed by her brother Biswaranjan in her favour and the registered sale deed executed by her in favour of the Plaintiff in respect of the suit land are the outcome of fraud, manipulation and misrepresentation.

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For all those aforesaid, the submission of the learned counsel for the Appellant that the Appeal merits admission to answer the substantial questions of law, as pointed out above, cannot be countenanced with.

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Resultantly, the Appeal stands dismissed. No order as to
cost.
(D. Dash),
Judge

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Basu

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Signature Not Verified

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Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 05-Mar-2024 13:53:50

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RSA No.11 of 2022

Issues for consideration

4 issues framed by the court

AI extract

1.
Whether the Plaintiff's suit for declaration of right, title, interest and possession was maintainable when Biswaranjan — according to the Plaintiff the owner in possession and the vendor of the sale deed — was not arraigned as a party (substantial question of law urged by appellant's counsel on admission).medium confidence¶49
2.
Whether the First Appellate Court's findings — that there was an amicable family arrangement between Harapriya, her husband and two sons on 03.05.1983 under which the suit property was allotted to Biswaranjan with exclusive right, title, interest and possession — were the outcome of perverse appreciation of evidence.medium confidence¶49
3.
Whether the finding that Biswaranjan had executed an Irrevocable Power of Attorney in favour of Defendant No.1, under which status she executed the sale deed, was untenable.medium confidence¶49
The court held
Defendant No.1's plea that she had merely intended to execute a deed of licence for temporary use of the vacant garden portion clearly appears to be a falsehood — her mother being alive and, on her own showing, the owner then — and rather shows that Defendant No.1 had authority over the land on behalf of its owner to part with its possession in favour of others.ratio¶60
4.
Whether the First Appellate Court's finding that the sale deed in question (Ext.4) is not the outcome of fraud but is a valid and genuine document is contrary to the weight of evidence on record.medium confidence¶49
The court held
Defendant No.1, despite pleading ignorance of the Power of Attorney and alleging fraud and misrepresentation behind the sale deed, chose not to depose anything in support of her defence and withheld herself from the witness box; her written-statement version therefore remained unproved, and adverse inference is bound to be drawn against her case attacking the registered Power of Attorney standing in her favour and her execution of the registered sale deeds as Power of Attorney holder of her brother.ratio¶60

Sudha @ Mamata Mohanty v. Sabita Verma

Case brief

What is this about?

What did the court decide?

Sudha @ Mamata Mohanty v. Sabita Verma

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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