Rebatibala Swain Vs Udayanath Nayak

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.137 of 2017

In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 24^th November, 2016 and 5^th December, 2016 respectively passed by the learned Additional District Judge, Athagarh in R.F.A. No.33 of 2014 confirming the judgment dated 31^st January, 2014 & 13^th February, 2014 respectively passed by the learned Civil Judge, Senior Division, Athgarh in C.S. (I) No.06 of 2012.

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----
Smt. Rebatibala Swain & …. Appellants
Others
-versus-
….
Udayanath Nayak & Others Respondents

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Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

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For Appellants - M/s.Srikanta Mahunta,
N.K. Jena & S.K. Mahapatra
(Advocates)

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For Respondents -

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CORAM:

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MR. JUSTICE D.DASH Date of Hearing : 09.02.2024 : Date of Judgment: 15.02.2024

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D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment dated 24^th November, 2016 and 5^th

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December, 2016 respectively passed by the learned Additional District Judge, Athagarh in R.F.A. No.33 of 2014.

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The Appellants, as the Plaintiffs, had filed Civil Suit (I) No.06 of 2012 in the Court of the learned Civil Judge, Senior Division, Athagarh praying for a declaration of their right, title, interest and seeking partition and permanent injunction. The suit stood preliminarily decreed in part as against the Respondent No.4 (Defendant No.4), Respondent No.5 (Defendant No.5), Respondent No.6 (Defendant No.5) and Respondent No.7 (Defendant No.7) and the heirs of Lingaraj and Dwijabar Panchuati as noted in paragraph-15 of the judgment.

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These Appellants (Plaintiffs), being aggrieved by the same, had carried the Appeal under Section 96 of the Code, which has been dismissed. Hence, the present second Appeal is at the instance of these Appellants, who as the Appellants, have remained aggrieved by the judgments and preliminary decrees passed by the Courts below.

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2. 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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3. Plaintiffs’ Case:-

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The property in Schedule-A stood recorded in the name of Govinda Chandra Nayak. Govinda was survived by his two

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daughters, namely, Rebatibala (Plaintiff No.1) and Pramila. Pramila, being dead, has her husband, namely, Patitapaban and two sons, namely, Sanatan @ Guna and Pareswar Swain @ Paria and a daughter, namely, Manjulata @ Manju, who are Defendant Nos.4, 5, 6 & 7 respectively. Govinda had no male issue and, therefore, he had adopted the son of Plaintiff No.1, namely, Rohit Kumar Swain @ Arun (Defendant No.3). The Plaintiff No.1 had purchased the suit property in Schedule-A from Govinda by registered sale deed no.1246 dated 27.06.1974 for valuable consideration and she, being delivered with the possession of the same, was continuing as such. On the date of registration and at the time of delivery of possession, the Plaintiff No.1 and her father found that out of the suit scheduled property Plot No.1081 of an area of Ac.0.43 had earlier been sold by Govinda to one Uchhab Ch. Jena of Village-Karikol for which Govinda gifted one plot, i.e., Plot No.307 measuring Ac.0.71 decimals under gift deed dated 16.09.1974. After purchase, the Plaintiff No.1 and her father entrusted the responsibility of the mutation of the above purchased land as also the land covered under the deed of gift to the Defendant No.4, who happens to be the husband of Pramila since he was then serving as a clerk in the Office of the Tahasildar, Athgarh.

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On 25.02.2011, the Plaintiff No.1 sold the land under Lot No.2 of Schedule-A to the Plaintiff Nos.2 & 3, who are her agnates

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by registered sale deed dated 25.02.2011. On that very day, at the time of delivery of possession, Defendant No.1, who is an agnatic brother of Plaintiff No.1 disclosed that the said properties were purchased by him way back in the year 1979 and 1981 from Govinda Naik. He also disclosed that among all the properties, the land under Plot No.193 measuring Ac.0.32 decimals has been sold by him to one Laxmidhar Nanda (Defendant No.9). The Plaintiff then, on enquiry, came to know that the properties under Schedule-A, which had been purchased by her through registered sale deed dated 27.06.1974 had been sold to different persons by Govinda. It was later on learnt that the Defendant Nos.4, 1 & 2, who is also one agnatic brother of Plaintiffs, had grabbed the said land taking advantage of illiteracy of the Plaintiffs and her old father. The Defendant No.4, on being asked, denied to hand over the mutated record of right on various pretexts. The Defendant No.3, the adopted son of Govinda, having made the demand, the Defendant No.4 stated that the original sale deed dated 22.06.1974 had been cancelled by cancellation deed no.1382 dated 15.07.1974. The Defendant No.4, who was in possession of the sale deed dated 27.06.1974 had fraudulently managed to execute the cancellation deed dated 09.07.1974 just after six days of execution of the document, which was cancelled. The documents of cancellations are said to be of no value in the eye of law and the endorsement of cancellation, as indicated in the registered

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sale deed dated 27.06.1974, is attacked as void. The Defendant No.4 had got the properties through deed of gift in favour of Pramila, the wife of Defendant No.4 and it is said that the same had been obtained by misrepresentation and taking advantage of the old age and simple personality and behavior of Govinda by arranging a plot under the supervision of the husband of Pramila, i.e., Defendant No.4. The Defendant No.4 denied to give the mutated record of right to the Plaintiff No.1 despite several approaches. It is thus stated that these two registered sale deeds 23.01.1979 executed in favour of Udayanath & Hadibandhu Swain by Govinda are invalid and that being subsequent to the sale on 27.06.1974 is illegal and void since Govinda had by then no right to sell the property. It is stated that the sale deeds bearing Nos.51 & 52 are forged because Govinda had no legal necessity to sell his residential house and Gharabari covered under those sale deeds. The vendees, namely, Udaya (Defendant No.1) and Nimai (Defendant No.2) are agnatic brothers of Plaintiff No.1. They, by practicing fraud and exercising undue influence on Govinda, who was then aged about 81 years, in order to grab the lands of the Plaintiffs under Plot No.720 measuring area Ac.0.21 decimals and plot No.721 measuring area Ac.0.06 decimals (Schedule-C) and Plot No.293 measuring area Ac.0.33 decimals (Schedule-B), had created all these. It is also stated that the possession of the properties was not delivered

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with in respect of the sale deeds bearing No.51 & 52. The land under sale deed dated 13.05.1977 in favour of Defendant No.8 is the land also finds mention in registered sale deed dated 27.06.1974 standing in favour of Plaintiff No.1 and, therefore, the vendor had no right to transfer the land. So, it is said that the registered sale deed is void, invalid and not binding on Plaintiff No.1. Similarly, registered sale deed dated 12.11.1997 executed by Defendant No.1 in favour of Defendant No.9 is stated to be invalid as the lands covered under the said registered sale deed had already been covered under registered sale deed no.1246 dated 27.06.1974. It is stated that the vendor had no right to sell the same.

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Schedule-D properties stands jointly recorded in the name of Govinda Nayak, Lingaraj Panchuati and Dwijabar Panchuati both sons of late Bishnu Panchuati. Lingaraj died issueless and Dwijabar died leaving behind his wife (Defendant No.12) and daughter (Defendant No.13). The said schedule-D property has not been partitioned wherein the Plaintiff has got 1/6^th share from out of the 1/3^rd share of Govinda. On 01.10.2011, the Defendant said that they would not hand over the usufructs of the said plots as it has already been purchased. The plot bearing nos.717, 719 & 743 were the subject matter of the sale deed dated 27.06.1974 along with the Lot No.2 property. That has also been cancelled by the document dated 15.07.1974. the Plaintiffs challenged the

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genuineness of the registered sale deed dated 23.01.1979, which is subsequent to the registered sale deed no.1246.

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4. The Defendant Nos.1, 2 and 4 to 16 have filed the written statement. They have denied the contentions of the Plaintiffs that the Defendant No.3 had been adopted by Govinda. The said deed of the so-called adoption dated 25.09.1974 is attacked as fake and fabricated one. It is said that the claim of Plaintiff No.1 is that he has 1/4^th share over Schedule-D property is baseless and false. As regards the sale deed dated 20.06.1974, it is stated that the Plaintiff No.1, being a clever and shrewd person, has been able to create these two sale deeds from her old father Govinda, who did not know about the transaction and voluntary execution of the same. Thus, Govinda, being furious upon Plaintiff No.1, then forthwith directed for cancellation of the same through another registered deed of cancellation on 15.07.1974 wherein she accorded consent. After cancellation deed, the Plaintiff No.1 lost all her right, title and interest over the suit land and there was non-delivery of possession. It is next stated that the sale deed dated 20.06.1974 is valid. Out of the said properties, Govinda, by registered gift deed dated 16.09.1974,, had gifted Plot No.231 measuring Ac.1.14 decimals, plot no.307 measuring Ac.0.71 decimals and plot no.232 measuring Ac.0.17 decimals under Khata No.62 to Plaintiff No.1. Similarly, under gift deed dated

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16.09.1974, Govinda gifted Plot No.610 measuring Ac.0.17 decimals, Plot No.598 measuring Ac.0.10 decimals, Plot No.1026 measuring Ac0.22 decimals, Plot No.918 measuring Ac.0.17 decimals and plot no.13111 measuring Ac.0.12 decimals under Khata No.62 to Pramila by cancelling the said gift and executing the same and mutating in her share under Khata No.245/152 and out of the same, having sold land measuring Ac.0.65.5 decimals from the total area of Ac.1.14 decimals by registered sale deed no.578 dated 27.04.1988. to Sundarsan Mohanty

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As regards Lot No.2 of Schedule-A, the Defendants said that the suit land never belonged to Plaintiff No.1 and she has no right, title and interest to sell the same to Plaintiff Nos.2 & 3 for which there was no occasion for delivery of possession to them as the same belonged to Defendant No.1 and it was sold to him by Govina. It is further stated that Govinda, for his legal necessity, had sold the land under Khata No.62 (seven plots measuring Ac.1.60 decimals) to the Defenant No.1 and delivered the physical possession of the same by registered sale deed dated 13.01.1981.

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The Defendant no.1 is in continuous possession of the same since that time and out of these two plots, the Defendant No.1 has sold Plot No.193 measuring Ac.0.32 decimals to Defendant No.9 by registered sale deed and the rest land stood in the name of Defendant No.1 under his possession. The Defendant No.1had earlier purchased Plot No.948 measuring Ac.0.18 decimals and

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plot no.940 measuring Ac.0.31 decimals from Govinda by registered sale deed dated 23.01.1979 for valuable consideration and he is in peaceful possession of the same.

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Govinda also sold Ac.0.65 decimals of land under five plots belonging to Khata No.62 to Defendant No.2 by registered sale deed dated 13.01.1981 and delivered possession thereof which includes the homestead and it has been mutated in the name of Defendant No.2, who is in possession of the same by constructing a new building with two shop rooms. Similarly, Govinda also sold lands to Labanyabati Nayak for valuable consideration through registered sale deed and delivered possession to her through her brother (Defendant No.1). As per the case of the Govinda, he was in good state of health and mind and while executing all the above documents including the deed of cancellation, the Plaintiff No.1, having given the consent and subsequently, having accepted the gift of the lands covered under the sale deed dated 27.06.1974, the cancellation deed has rather been accepted and acted upon by the Plaintiff No.1, who has no locus standie to file the suit in challenging the same. The Plaintiff No.2 was never in possession of any of his land gifted to her and the bona fide purchasers are in possession. The Plaintiff has no right over the purchased land of the Defendant No.1. The Defendant No.1 has been cultivating plot no.139 under Schedule-

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D as a bhag tenant of late Govinda. The land under Plot nos.717 & 719 are the purchased lands of Defendant No.2, who is in peaceful enjoyment of the same as the recorded tenant.

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5. The Trial Court, on the above rival pleadings, framed as many as ten issues. First of all, coming to decide as to the Plaintiffs’ entitlement for a declaration of their right, title and interest over Schedules-B & C properties, upon examination of the evidence and their evaluation, the answer has been rendered against the Plaintiffs. Other issues, being also answered against the Plaintiffs.

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In Paragraph-15 of the judgment, the Trial Court has held as under:-

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“15……. I am to hold that the heirs of Govinda have 1/3^rd share in the suit Schedule-D property. Among them, the Plaintiff No.1 has half share from out of third share of Govinda, which comes to 1/6^th share of total suit Schedule-D property. Similarly, the heirs of Pramila Swain, i.e., Defendant Nos.4, 5, 6 & 7 jointly have got ½ share from Govinda’s 1/3^rd share, i.e., 1/6^th share of total land.”

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The suit, having been preliminarily decreed, as above, the Plaintiffs, being the aggrieved by the same, had carried the Appeal under section 96 of the Code. The First Appellate Court, upon examination of the evidence and their independent

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evaluation at its level, has also confirmed the findings returned by the Trial Court.

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6. Mr.S.Mahunta, learned counsel for the Appellants submitted that the Courts below are not right in not considering Ext.1, the registered sale deed dated 27.06.1974 treating it as valid and legal. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.

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7. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties, as placed.

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8. After the so-called registered sale deed dated 27.06.1974 (Ext.1) came into being, a deed of cancellation has come into being, which has been admitted in evidence and marked Ext.2, the certified copy of which is Ext.F. It has been held to have been executed with the consent of Plaintiff No.1. The deed of gift has been executed by Govinda in favour of Defendant No.1 in respect of Plot No.231, 307 and 232. Ext.T shows that Plaintiff No.1 has sold plot no.307 by executing registered sale deed on 28.01.2013. The ROR vide Ext.J in Khata No.245/152 stands recorded in the name of Plaintiff No.1, which contains the plot no.307. Ext.K the ROR in Khata No.245/265 stands recorded in the name of

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Sudarsan Mohanty, which shows that the land under plot no.231 & 232 were mutated from ROR 245/152. All these documents show that after execution of gift deed, the Plaintiff no.1 had sold some of her land to different persons and as such Plaintiff No.1 has no manner of right, title, interest over the schedule-A property. Therefore, it has been rightly so held by the Courts below upon examination of the evidence and their evaluation. The Plaintiff No.1 has also

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The Plaintiff No.1 has accepted the gift executed by Govinda and that has been the concurrent finding of fact by the Courts below wherein this Court finds no such perversity. Therefore, it is absolutely false to say that on 20.05.2011, the Plaintiff No.1 came to know about the deed of cancellation. Besides the above, the original deed of cancellation (Ext.2) is produced by none other than the Plaintiff No.1.

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In view of the above, the courts below, having taken the view that Plaintiff No.1 knew the execution of the cancellation of deed cancelling the sale deed at the time of its execution cannot be found fault with. It having been said that the suit is barred by limitation, this Court also finds no such justifiable reason to interfere with the same. The share quantification, as has been made in Paragraph-15 of the judgment of the Trial Court, is also found to be well in order.

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

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10. Resultantly, the Appeal stands dismissed. No order as to cost.

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Basu

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(D. Dash),
Judge

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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: 16-Feb-2024 18:21:33

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RSA No.137 of 2017

Rebatibala Swain v. Udayanath Nayak

Case brief

What is this about?

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Rebatibala Swain v. Udayanath Nayak

Case brief

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What did the court decide?

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