Kalpana Meher Vs Bansidhara Patra

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. NO.209 OF 2020

In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 3^rd September 2020 and 11^th September 2020 respectively passed by the learned Additional District Judge, Boudh in R.F.A. No.05 of 2016(T) confirming the judgment and decree passed by the learned Civil Judge(Senior Division), Boudh in Civil Suit No.93 of 2012.

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Kalpana Meher …. Appellant
-versus-
Bansidhara Patra & Others …. Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
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For Appellant - Mr. S.S. Rao, Senior Advocate.
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For Respondents -
CORAM:
MR. JUSTICE D. DASH
Date of Hearing : 20.12.2023 :: Date of Judgment: 08.01.2024

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D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the

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Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 3^rd September 2020 and 11^th September 2020 respectively passed by the learned Additional District Judge, Boudh in R.F.A. No.05 of 2016(T).

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The Appellant as the Plaintiff had filed Civil Suit No.93 of 2012

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in declaring the registered sale-deed dated 01.03.2012 executed by the

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Page 1 of 9

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RSA No.209 of 2020

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Respondent No.2 (Defendant No.2) in favour of the Respondent No.1(Defendant No.1) as void, invalid and inoperative with further prayer of Specific Performance of Contract and Perpetual Injunction.

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The suit having been dismissed, the Appellant as the unsuccessful Plaintiff being non-suited had carried appeal under Section-96 of the Code which has also been dismissed. Hence, the present Second Appeal is at the instance of the Appellant (Plaintiff) which has been non-suited by both 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

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have been arraigned in the Trial Court.

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3. The Plaintiff’s case is that the father of Defendant No.1 namely, Jogeswar had purchased land of an area of 1116 sqft. from one Binayak Babu by registered sale-deed. He was possessing the same by constructing the residential house over there. The residential house was on the southern portion of the land. Jogeswar was paying rent to the State. In the year, 1973, the record of right was issued in the name of Jogeswar. The Defendant No.2 is the married daughter of said Jogeswar,

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who was residing with her husband at his service place. It is stated that taking advantage of the innocence, simplicity, old age and sanility of

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Jogeswar, the Defendant No.2 obtained a sale-deed on 29.10.1974 in

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Page 2 of 9

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RSA No.209 of 2020

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respect of land of an area of 558 sqft. from the northern side of the property of Jogeswar without the knowledge of the family members. It is stated that the said transaction was merely on pen and paper and there was no delivery of possession of the land described in the said sale-deed by said vendor, Jogeswar in favour of the Defendant No.2. Jogeswar died sometime in the year 1979 and his widow died in the year 2007. After the death of Jogeswar and his wife, his four sons continued to remain in possession of the suit land as their homestead and dwelling units. During settlement operation, record of right in respect of 1116 sqft. of land was published in the name of Defendant Nos.3 to 6 as also their mother. It is stated that the Defendant No.2 being misguided intended to harass her brothers and filed Settlement Revision Case No.31 of 2000 before the Commissioner, Land Records and Settlement, Cuttack on the basis of her purchase and she got a favourable order in respect of the entire Ac.0.030 decimals of land although she had purchased the northern half of the suit plot. The Commissioner, accordingly, directed to record the entire land in favour of Defendant No.2 by deleting the names of Defendant Nos.3 to 6 and their mother. The Tahasildar, initiated Mutation Case No.27 of 2001 and prepared separate Patta in the name of Defendant No.2. The Defendant No.2 now being armed with the illegal order, threatened to alienate the suit land to

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Page 3 of 9

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RSA No.209 of 2020

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the deprivation of the family members of Jogeswar from using the suit land as their dwelling unit. Knowing the above facts, the Plaintiff wanted to have an amicable settlement which however was not agreed upon by the Defendant No.2 who insisted that she is the owner of entire Ac.0.030 decimals of land under Plot No.1119 as it has been recorded in her name. It is further stated that during the discussion for amicable settlement, the Defendant No.2 suggested that she would alienate entire Ac.0.030 decimals of land for consideration of Rs.6,00,000/- to the Plaintiff and other family members of Jogeswar. Accordingly, the Plaintiff was compelled to sign on an agreement as her husband Defendant No.6 was out of station on election duty. It is stated that the plaintiff tried her best to convince Defendant No.2 that she was only entitled to the northern half of the Plot No.1119 in view of the registered sale-deed dated 29.09.1974; the Defendant No.2 remained adamant. Accordingly, an agreement was executed between the Defendant No.2

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on one hand and the Plaintiff with the Defendant Nos.3 to 5 on the other. It was subsequently realised that the Defendant No.2 is only entitled to get 558 square feet of land towards northern side of the suit land and not the entire plot of Ac.0.030 decimals for which her monetary entitlement is Rs.3,00,000/-. It is averred that the Defendant Nos.3 to 5 are in possession of the portion of the suit land and as such the agreement

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Page 4 of 9

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RSA No.209 of 2020

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dated 09.02.2012 speaks of the intention of the Defendant No.2 to sale her interest from out of the suit property. So, it is said that the Plaintiffs are protected under section-53(A) of the Transfer of Property Act. It is stated that the Defendant No.2 did not execute the sale-deed within the stipulated time. So, the Plaintiff and the Defendant Nos.3 to 5 sent notice as they were ready and willing to perform the part of their contract. The Defendant No.2 inspite of not performing her part of the duty by executing a registered sale-deed, through her power of attorney holder on 01.03.2012 sold the land to the Defendant No.1 for consideration of Rs.1,50,000/-. It is thus said that although the Defendant No.2 had no right to alienate the southern portion which is the dwelling unit of the Plaintiff’s family, she had done illegally. The Defendant No.1 being a stranger to the family had no right to purchase the suit land when the Plaintiff and other Defendants have the preferential right to re-purchase the interest of the Defendant No.2.

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4 . The Defendant Nos.1 and 2 in their written statement have

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asserted that Defendant No.2 had purchased the land from her father by registered sale-deed dated 19.10.1974 on payment of consideration and she was in possession of the same. It is further stated that during settlement operation, ROR was prepared in the name of their brothers without her knowledge and then she enforced her right. The Defendant

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Page 5 of 9

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RSA No.209 of 2020

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No.2 claims to be the lawful owner in possession of the suit land and the factum of execution of any agreement is denied. It is further stated that the Defendant No.2 then sold the land to Defendant No.1 through her power of attorney holder of the Defendant No.1 who having applied for mutation had got the Patta in his name.

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5 . The Trial Court with the above rival pleadings framed as many as seven (7) issues including the issue relating to locus-standi of the Plaintiff to file the suit and her entitlement to the decree declaring the registered sale-deed dated 01.03.2012 executed by Defendant No.2 in favour of Defendant No.1 as void. The issue as to locus of the Plaintiff upon examination and evaluation of the evidence in the backdrop of the pleadings has been answered against the Plaintiff. Then answering the issue no.4, the Trial Court has rendered against the Plaintiff. In view of the above, the other issues again being answered against the Plaintiff, the suit has been dismissed.

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The First Appellate court being moved by the unsuccessful Plaintiff has affirmed those findings of the Trial Court and confirmed the judgment and decree impugned in the First Appeal.

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6 . Mr. S.S. Rao, learned Senior Counsel for the Appellant (Plaintiff) submitted that the Plaintiff could not have been non-suited on the ground that she is not a Class-I heir, when the reliefs sought for in the

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RSA No.209 of 2020

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suit is not confined solely to her benefit but for and on behalf of Class-I

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heirs who are already on record as Defendant Nos.3 to 6 and as they consented for a decree in favour of the Plaintiff. He further submitted that the First Appellate Court in the factual settings has failed in its duty in as much as by not exercising the power to transpose the Defendant No.6, who is admitted in Class-I heir as co-Plaintiff by employing the provision contained in Order-1 Rule-10 of the Code, when that Defendant No.6 has agreed for decree in favour of the Plaintiff. 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 plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them.

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8 . Undisputedly, the property belonged to Jogeswar and the

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Defendant Nos.3 to 6 are the four sons of Jogeswar; whereas Plaintiff is the wife of Defendant No.6 i.e. daughter-in-law of Jogeswar. The very

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suit of the Plaintiff is with the relief of declaring the registered sale-deed dated 01.03.2012 executed by the married daughter of Jogeswar in favour of Defendant No.1 as void. It is also stated that the Defendant

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No.2 had managed to obtain a sale-deed from Jogeswar in respect of the

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land of an area of 558 sqft. way back on 29.10.1974. The suit being with the claim of the above reliefs in presence of the sons of Jogeswar, it is not understood as to how the daughter-in-law of Jogeswar (wife of one of the son i.e. Defendant No.6) can maintain the suit claiming specific reliefs as aforestated. Coming to the relief of Specific Performance of Contract; it is seen that the agreement has been admitted in evidence and marked Ext.8. The agreement was between the parties for sale of the land that on payment of consideration of Rs.6,00,000/- by the Plaintiff and Defendant Nos.3 to 5, the Defendant No.2 would sale the entire land extending to Ac.0.030 decimals. The agreement in question being unregistered, the delivery of possession of the suit land pursuant to the said agreement in view of the provision of under section-17(1)(A) of the Indian Registration Act with its consequence being stated in section-49 of the Act, cannot be taken cognizance of. Therefore, the Plaintiff cannot bank upon the provision of section-53-A of the Specific Relief Act. Furthermore, both the Courts below have found that the Plaintiff has utterly failed to prove that there was readiness and willingness from their side to perform their part of the contract in which this Court notices no such perversity and in fact nothing has been pointed out in that regard by the learned Senior Counsel for the Appellant (Plaintiff) in course of hearing.

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Page 8 of 9

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RSA No.209 of 2020

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In view of the aforesaid, this Court is of the considered view that there arise no substantial question of law meriting admission of this Appeal.

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10. In the result, the Appeal stands dismissed. However, there shall be no order as to cost.

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Narayan

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