Taramani Biswal Vs Pravakar Sahu

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.318 of 2023

In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 3^rd May, 2023 & 15^th May, 2023 respectively passed by the learned Senior Civil Judge, Nilgiri in R.F.A. No.07 of 2012/79 of 2009 confirming the judgment & decree dated 22^nd May, 2009 & 4^th July, 2009 respectively passed by the learned Additional Civil Judge, Junior Division, Nilagiri in C.S. No.1 of 2007.

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Smt. Taramani Biswal & Others …. Appellants
-versus-
Sri Pravakar Sahu & Others …. Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
-
For Appellants Mr.P.K. Satapathy
(Advocate)
For Respondents -

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CORAM: MR. JUSTICE D.DASH

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Date of Hearing : 16.01.2024 : Date of Judgment:22.01.2024

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D.Dash,J. The Appellants, by filing this Appeal under Section 100 of

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the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment & decree dated 3^rd May, 2023 & 15^th May, 2023 respectively passed by the learned Senior Civil Judge, Nilgiri in R.F.A. No.07 of 2012/79 of 2009.

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One Narahari Sahu, the predecessor-in-interest of Respondent Nos.1 to 5 and the Respondent No.2, as the Plaintiffs, had filed Civil Suit No.1 of 2007 in the Court of the learned Additional Civil Judge, Junior Division, Nilgiri. The suit is for declaration of right, title, interest and confirmation of possession over the suit land and permanent injunction against the present Appellants, who were the Defendants therein. The suit, having been decreed, these Appellants (Defendants) had carried the Appeal under section 96 of the Code, which too has been dismissed.

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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 land originally belonged to one Kandur Pallai of Village-Jamudiha. He had transferred the suit land with other lands to one Harihar Biswal by executing a registered deed of gift on 04.02.1957 and delivered possession of the same. Harihar Biswal, accepting the said gift as the donor, possessed the suit land as its absolute owner and mutated the same in Mutation Case No.166/1958-59 and went on paying of rent to the State. When Harihar Biswal was in exclusive possession of the suit land. He transferred the same to the Plaintiffs by registered sale

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deed dated 16.03.1974 for a consideration of Rs.1000/- followed by delivery of possession. The Plaintiffs claim to be in possession of the suit land since then. However, their names could not be reflected in M.S. Record of right because by then major stages of operations were over. The relationship between the Plaintiffs and Harihar Biswal, being cordial, they did not take any action for recording of the suit land in their favour. Therefore, the M.S. record of right in respect of the suit land continued to be in the name of Harihar Biswal when the fact stands that the Plaintiffs were/are in possession of the suit land. After the death of Harihar, the Defendants 6, 7 & 8, all of a sudden, on 15.11.2006 when asked the Plaintiffs to vacate the suit land in view of the record standing in the name of Harihar, the Plaintiffs have come to file the suit.

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5. The Defendants, in their written statement, have stated that Harihar Sahu, was not the sole owner of the suit land. He had five acres of ancestral land and except cultivation, he had no other income source. Having got sufficient income from cultivation and sufficient funds therefrom, it is said that he, as the karta of the family, had purchased the suit land from Kandur Pallai out of said surplus income of the ancestral property. So, it is said that Harihar and the Defendants were the owners of the said property. It has been further stated that the deed dated

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06.03.1974 was not a sale deed but a “Biswasi Kabala’. According to the Defendants, Harihar, being a simple, innocent and uneducated persons had executed the said sale deed in favour of the Plaintiffs with an impression that he was executing a ‘Biswasi Kabala’ towards the security of the land of Rs.500/-. It is further stated that the contents of the deed were not readover and explaind to Harihar and the Plaintiff managed to create that sale deed taking advantage of the simplicity of Harihar. There was no delivery of possession of the suit land pursuant to to the sale by Harihar to the Plaintiffs and Harihar had no legal necessity to sell the land. It was agreed upon that when Harihar would pay back the loan amount with interest, the Plaintiffs would return the said deed to Harihar. So, when Harihar repaid the loan amount as per the agreement, he had demanded the original said deed to be given. But the Plaintiffs replied to have misplaced the same and answered that he would return as and when traced out. It is further stated that the said transaction was never acted upon. So, it is said that the Plaintiffs have never purchased the suit land and, therefore, they had not attempted to record the suit land in their favour and remained satisfied with the note of possession in respect of the land in the remark column of the record of right. It is again stated that the suit land is possessed by the Defendants under one enclosure and that has been continuing since the time

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of Harihar. Alternatively, it is pleaded that the Defendants have perfected title over the suit land by way of adverse possession.

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6. On the above rival pleadings, the Trial Court, having framed as many as six issues, upon examination of the evidence and their evaluation, has answered the most important issue as to the nature of the document dated 16.03.1974 (Ext.3) to be a sale deed but not a ‘Biswasi Kabala’. It has also been held that the Plaintiffs are in possession of the suit land. Having said all these, the suit stood decreed.

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7. The aggrieved Defendants, having carried the Appeal under Section 96 of the Code, have failed in their attempt to overturn the judgment and decree passed by the Trial Court in favour of the Plaintiffs.

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8. Mr.P.K.Satapathy, learned counsel for the Appellant submitted that the First Appellate Court is not justified in saying that the instituted suit was within the pecuniary jurisdiction of the Trial Court. According to him, that question, having been raised in the First Appeal, the First Appellate Court, simply looking at the value reflected in the sale deed, ought not to have negated the contention raised by the Defendants. He further submitted that the record of right, having been published in the year 1976 in the name of the Defendants, when the suit has been

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filed in the year 2007, the same ought to have been dismissed being barred by limitation. He submitted that in view of the evidence on record, the Courts below, although have concurrently found the deed in question dated 16.03.1974 (Ext.3) to be a sale deed, that is without any evidence as to the delivery of possession of the suit land pursuant to the said sale and thus as the transaction was incomplete, the finding ought not to have been given that the Plaintiffs have the right, title, interest and possession over the suit land. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions 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 rival pleadings and the evidence both oral and documentary let in the parties, as placed.

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10. Indisputedly, Harihar Biwal, the predecessor-in-interest of the Defendants had got the suit land under a deed of gift executed by Kundur Pallai of Village-Jamudiha as the donor. Said Harihar, having accepted the gift, had taken delivery of possession of the suit land and possessed it by getting it mutated in his name. However, the very plea of the Defendants, from the beginning, appears to be false when they state that Harihar Biswal, being the Karta of the family, had purchased the suit land

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from Kundur Pallai out of the surplus income of the joint family properties, which were being managed by him and Harihar Biswal and other Defendants jointly possessed the suit land. The suit land, being the property of Harihar, which he got in a gift and possession of the same being accepted, the only question now remains as to how far the plea of the Defendants that the socalled deed executed by Harihar in favour of the Plaintiffs on 16.03.1974 (Ext.3) was not a sale deed but a ‘Biswasi Kabala’.

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It be stated at the state that the said deed, having been executed on 16.03.1974, Harihar Biswal, during his life time had never questioned the same by carrying any proceeding to declare it as invalid. It is only when the Plaintiffs filed the suit in the year 2007 claiming their right, title, interest and possession by virtue of said deed (Ext.3), the Defendants, who are the legal representatives of Harihar Biswal have come forward to challenge that deed showing that it was a ‘Biswasi Kabala’. The very genesis of the claim of these Defendants that Harihar Biswal had executed the said Biswasi Kabala, which was manipulated by the Plaintiffs to be a sale deed by taking advantage of the innocence and simplicity of Harihar on their own pleadings, falls flat for the reasons stated hereunder. At one stage, it is stated that Harihar was managing the ancestral properties and was getting sufficient income, having surplus income of Rs.800/- to Rs.1000/per month, which subsequently was raised to Rs.1500 to Rs.2000/-

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per month. Having once said so and further that Harihar had no legal necessity, they state that Harihar executed the deed as Biswasi Kabala for security of the land on Rs.500/-, which he had taken from the Plaintiffs. These factual settings are wholly irreconcilable and per se not acceptable.

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The Defendants admit the execution of the deed in question by Harihar and, therefore, when the very purpose of execution of the said deed by Harihar as projected by the Defendants is not believable on the basis of their own saying, the burden of proof, which was lying upon them to establish the fact that Harihar never intended to execute the sale deed and had not executed the sale deed but a Biswasi Kabala in the absence of any evidence stands undscharged. The deed in question standing in favour of the Plaintiffs, being a registered one, carries the presumption. The evidence on record, being scanned by the Courts below, the finding of possession of the suit land in favour of the Plaintiff, have been concurrently recorded and in course of hearing, no such infirmity much less to say perversity has been pointed out by the learned counsel for the Appellants.

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11. The question is now with regard to the pecuniary jurisdiction of the Trial Court to decide the suit. That having been raised by the Defendants, the Courts below have repeatedly turned it down. The deed of the year 1974 indicates the agreed

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consideration of the land at Rs.1000/-/. The Defendants except proving the document from Tahasil Office whose authenticity has also been doubted by the Courts below, assert that the valuation ought to have been more. The Defendant No.6, being examined as D.W.1, has stated to have no knowledge about the value of the suit land during the time of execution of the deed (Ext.3). The Courts below have not found the valuation put by the Plaintiff to be arbitrary and that be a concurrent finding of fact, this Court finds nothing to conclude that the said outcome suffers from the vice of perversity.

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

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12. Resultantly, the Appeal stands dismissed. No order as to

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cost.

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(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: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 24-Jan-2024 15:34:10

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RSA No.318 of 2023

Taramani Biswal v. Pravakar Sahu

Case brief

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Taramani Biswal v. Pravakar Sahu

Case brief

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