Dismissed

Prabhat Ku.Patro v. Renubala Patro

Orissa HC8 Jan 2024RSA/222/2018

Case brief

AI extract

What is this about?

The Appellant challenged concurrent findings of fact regarding an oral partition of joint property and the validity of a sale-deed executed by one co-owner. The High Court held that the trial court correctly appreciated evidence, including the admission by the co-owner regarding the partition, and found no perversity or substantial question of law warranting admission of the Second Appeal.

What the court decided

AI extract

Prabhat Ku.Patro Vs Renubala Patro — Property and Title | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A. NO.222 OF 2018

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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 05.01.2018 and 09.01.2018 respectively passed by the learned District Judge, Gajapati-Parlakhemundi in R.F.A. No.29 of 2015 confirming the judgment and decree dated 03.08.2015 and 14.08.2015 respectively passed by the learned Civil Judge, (Senior Division), Parlakhemundi in Civil Suit No.47 of 2013.

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Prabhat Kumar Patro …. Appellant
-versus-
Smt. Renubala Patro & Another …. Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
=================================================
-
For Appellant Mr. Manoranjan Pathy,
& Jyotsnamayee Sahoo,
Advocates.
----------------
For Respondents -
CORAM:
MR. JUSTICE D. DASH
Date of Hearing : 02.11.2023 :: 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 05.01.2018 and 09.01.2018 respectively

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passed by the learned District Judge, Gajapati-Parlakhemundi in R.F.A. No.29 of 2015.

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Page 1 of 9

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RSA No.222 of 2018

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The Respondent No.1 as the Plaintiff had filed the suit for declaration of her right, title and interest over the suit land with further prayer to declare the registered sale-deed dated 21.03.2011 executed by Respondent No.1 (Defendant No.1) in favour of Respondent No.2 (Defendant No.2) as null and void in seeking delivery of possession of the suit land from the Respondents (Defendants) with further prayer for permanent injunction. The suit having been decreed; this Appellant being the aggrieved, Defendant No.1 had carried an Appeal under section-96 of the Code. The Appeal has been dismissed.

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2 . For the sake of convenience, in order to avoid confusion and

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bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

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3. The Plaintiff’s case is that the Defendant No.1 is her mother whereas Defendant No.2 is her brother. The Plaintiff had entered into Government service as Village Agricultural Worker in the year 1991. She was posted at Bodokotturu and then transferred to Ankuspur and in the year 1996, was again transferred to village Chenameri where she continued to stay till the year, 2009. After that, she was transferred to Gurandi. It is stated that during the period of service at village Ankuspur, she with her mother (Defendant No.1) had purchased vacant piece of land measuring Hc.0.056 decimals from Plot No.355, Khata

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Page 2 of 9

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RSA No.222 of 2018

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No.84 of mouza: Mohana by registered sale-deed dated 10.12.1993. The Plaintiff having purchased the suit land jointly with her mother enjoyed the property as such. Subsequently, the land was mutated in their names. Plaintiff married in the year, 1997 and after marriage, she continued to possess the purchased property with her mother as before. On 1708.2002, the Plaintiff and Defendant No.1 mutually agreed for a partition of the suit land between them into two equal halves in presence of village gentries. It is stated that in that partition, effected orally, the eastern portion of the purchased land measuring 30 cubits X 45 cubits fell in the share of the Plaintiff; whereas the western portion of equal size was allotted to the Defendant No.1. It is further stated that the Plaintiff and Defendant No.1 after said partition remained in possession of the respective portions of land falling in their respective shares and then the Plaintiff constructed one R.C. roof house over her part of the land, keeping some vacant land. She states to have spent a sum of Rs.4,00,000/- for the purpose by withdrawing the same from her General Provident Fund account besides a incurring the loan from HUDCO. Sons of Defendant No.1 did not take care of Defendant No.1. The Plaintiff was however shouldering that burden. Since the Defendant No.1 being not taken care of by her sons, and there was no shelter for her, the Plaintiff had allowed her to stay in that house

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Page 3 of 9

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RSA No.222 of 2018

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standing over the suit land. But Plaintiff being transferred to village Gurandi from Mohana, she had left the house in custody of Defendant No.1 for her occupation and was visiting the house during holidays and when was taking leave.

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The Defendant No.2 is one of the brothers of the Plaintiff. It is

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stated that Defendant No.2 by exercising undue pressure upon the Defendant No.1 having brought her to Paralakhemundi on 21.03.2011, got a registered sale-deed created in his favour in respect of the suit land. The sale-deed thus came into being behind the back of the Plaintiff and her knowledge without payment of any consideration. The said transaction is attacked a sham transaction in further stating that by execution and registration of the same, the title in respect of the suit land has not been transferred in favour of the Defendant No.2. it is further stated that the suit land being a joint property of Plaintiff and Defendant No.1; the Defendant No.1 could not have executed the sale-

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deed and registered the same in favour of the Defendant No.2. The Plaintiff having come to know about all these above clandestine activities of Defendant No.2 ultimately filed the suit after having served legal notice.

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4 . The Defendant No.1 does not dispute the position that the suit land had been purchased jointly by herself and her daughter (Plaintiff)

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Page 4 of 9

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RSA No.222 of 2018

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and that they jointly possessed the same after having mutated the land in their names. It is further stated that the boundary mentioned in the schedule of property is not correct. She challenged that the eastern portion was allotted in favour of the Defendant No.1; whereas western portion was allotted to the Plaintiff. The Defendant No.1 had constructed slab house over the land from out of her retirement benefits. The Defendant No.1 claims to have been in possession of the suit land and residing in the house with the Defendant No.2. The Defendant No.2 who used to take care of Defendant No.1 requested Defendant No.1 to transfer the suit house for consideration and accepting said request, the Defendant No.1 is said to have sold the suit land and house to Defendant No.2 by registered sale-deed dated 21.03.2011 for valuable consideration. It is stated that the Plaintiff have fully knowledge about the sale transaction and had filed the suit based on false assertion to harass the Defendants, although the Plaintiff has no right title, interest and possession over the suit land.

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6 . The Defendant No.2 has adopted submission filed by the Defendant No.1.

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7 . The Trial Court on the above rival pleadings having framed nine

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(9) issues is rightly found to have taken up the crucial issues concerning to the oral partition, the house standing over the suit land;

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Page 5 of 9

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RSA No.222 of 2018

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right, title and interest of the Plaintiff over the suit schedule property and the fate of the sale-deed executed by Defendant No.1 in favour of Defendant No.2 together for decision.

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On going through the evidences and their analysis, the Trial Court has answered all those in favour of the Plaintiff. Then taking up rest of the issues, it has been found that the Defendants are having no manner of right, title and interest over the suit schedule property and it

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is the Plaintiff who is rightful owner of the suit land and as such entitled to possess.

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The First Appellate Court being moved by the aggrieved Defendant No.2, on an independent analysis of evidence on record has concurred with the findings of the Trial Court on all those issues. Accordingly, the judgment and decree passed by the Trial Court have been confirmed.

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8 . Learned Counsel for the Appellant submitted that the Courts

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below are not correct in returning the findings on all those issues basing upon the admission of Defendant no.1 during her crossexamination that the suit land had fallen to the share of the Plaintiff in the oral partition effected between her and the Plaintiff in violating the total purchased land. According to him, when said stray statement came during cross-examination and that is contrary to the evidence-in-

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Page 6 of 9

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RSA No.222 of 2018

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chief, no such importance ought to have been attached to it. He submitted that the findings of the Courts below even though concurrent on this score that in the oral partition effected between the Plaintiff and the Defendant No.1 and that the suit land had fallen in the share of the Plaintiff, the same is the outcome of perverse appreciation of evidence. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law.

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9. 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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10 . Undisputed position stands that the property in question had been jointly purchased by the Plaintiff and the Defendant No.1. The purchased land was accordingly mutated under one plot as it reveals from Ext.1. It is also not in dispute that while continuing to possess the suit land at its joint owner, the Plaintiff and Defendant No.1 had partitioned the suit property into two equal halves.

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When the Plaintiff claims that in the said partition, eastern portion of the suit plot measuring 30 cubits x 45 cubits which is the suit land was allotted in her favour and the western half had fallen in the share of her mother (Defendant No.1) that is not accepted by the

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Page 7 of 9

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RSA No.222 of 2018

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Defendant No.1. The Defendants accept that the eastern portion of the

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suit plot which is the present suit land had fallen in the share of the Plaintiff. The Defendant No.1 has examined herself as D.W.2. As per her evidence, she was also a Government servant. It has been specifically admitted by her during trial that the suit land had fallen to the share of the Plaintiff in the oral partition. The admission is unambiguous and as it appears to have not been successful withdrawn or explained away at any given point of time. The evidence of P.Ws.1 to 6 and the evidence of the Defendant No.1 (D.W.2) having been examined by the Courts below they have found that the Plaintiff’s case as to the allotment of the suit land in her share in the oral partition has been well proved. This Court finds absolutely no error to have been committed thereby.

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With the above evidence which have been discussed in detail, the Courts below when have decreed the suit after having held the saledeed executed by Defendant No.1 in favour of Defendant No.2 to be

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having no value in the eye of law; this Court finds those to be well in order.

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11 . A careful reading being given to the judgments passed by the Courts below covering the discussion of evidence in detail, this Court finds that in ultimately arriving at the factual finding, no such material

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Page 8 of 9

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RSA No.222 of 2018

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evidence available on record has been overlooked or side lined. It also does not appear that the Courts below have read something extraneous to the evidence as standing to the aid of said finding in taking that as the base. In that view of the matter, the concurrent findings on fact rendered on detail discussions of evidence and their appreciation from all angles by the Courts below are not found to be suffering from the vice of perversity.

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For all the aforesaid, the submission of the learned Counsel for the Appellant (Defendant No.2) cannot be countenanced to say that there arises any substantial question of law for being answered, meriting admission of this Appeal.

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

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(D. Dash), Judge.

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Narayan

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Signature Not Verified

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Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 12-Jan-2024 15:25:57

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Page 9 of 9

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RSA No.222 of 2018

Prabhat Ku.Patro v. Renubala Patro

Case brief

What is this about?

What the court decided

Prabhat Ku.Patro v. Renubala Patro

Case brief

What is this about?

What the court decided

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