Bimal Ch.Mohanty Vs Ananta Mohanty

Additional District Judge, Balasore on 20.01.2007 followed by decree in Title Appeal No.6/86 of 2003/2000 is under challenge, whereby the judgment passed by learned Civil Judge (Junior Division), Jaleswar on 31.08.2000 followed by decree, in T.S. No.694/1990 was partly modified.

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For convenience, the parties are referred to as per their respective status in the Trial Court.

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The suit was filed by the original plaintiff-Ananta Mohanty for permanent injunction against the defendants.

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The case of the plaintiff, briefly stated is that one Krushna was the original recorded owner of the suit land. He had two sons namely, Akhi and Hadu. Akhi had three sons namely, Laxman, Satrughana and Kartik. The original plaintiff Ananta Mohanty was the son of Kartik. Laxman and his wife Tilotama died issueless. Satrughna had three daughters namely, Swornalata, Kadambini and

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Subasini. Hadu had two sons namely, Iswar and Jhatu. The suit land was recorded in the name of Akhi having eight anna share and Iswara and Jhatu having four anna share each in the CS Settlement ROR of the year 1926. There was a partition between Akhi and Hadu, whereby the suit land was allotted to the share of Akhi. The suit land is an undivided house and homestead of the family in possession of the plaintiff and his brothers. Laxman died leaving behind his wife Tilotama. Tilotama fell in love with one Anirudha Barik and left her matrimonial home to live with him as his concubine. She executed two sale deeds in favour of the defendants on 31.10.1936 and 23.06.1987 in respect of her share in the suit property.

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It is claimed that Tilotama never possessed the suit property after death of Laxman and the same being undivided house and homestead of the successors of Akhi, the sale by her in favour of the defendants was illegal. The defendants being stranger purchasers have no

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right of joint possession of the house and homestead

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along with the plaintiff. Since they created disturbance,

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the suit was filed for permanent injunction against them.

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The defendants contested the suit by filing written statement, inter alia , claiming that there had been amicable partition of the suit properties among the successors of Akhi and, therefore, the sale by Tilotama of her share of the suit property in their favour is valid and that they are in possession over their purchased land. It is further stated that the plaintiff had also sold some lands out of the suit land to outsiders and also purchased some land from the co-sharers independently. It is further claimed by the defendants that they are not strangers to the family of the plaintiff since defendant No.3-Subimal Mohanty had married the daughter of the plaintiff’s sister.

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Basing on the rival pleadings, the Trial Court framed the following issues for determination:

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(i) Have the plaintiffs any cause of action to bring this suit?

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(ii) Is the suit maintainable in law ?

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(iii) Are the plaintiffs entitled to get any decree of permanent injunction ?

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(iv) What other relief, if any, the plaintiffs are entitled to get ?

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The Trial Court first held the issue nos. (i) and

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(ii) that the plaintiff had the cause of action to file the suit. On the next issue i.e. Issue No.(iii), the Trial Court after

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analyzing the oral and documentary evidence on record held that the plaintiff had taken contradictory stand in the case inasmuch as, on one hand, he claimed the suit property to be the dwelling house to oppose the purchase of a portion thereof by the defendants. But at the same time, he himself sold some portions of the suit property to the outsiders. The Trial Court, therefore, held that the

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plaintiff had come to the Court suppressing material facts. The two sale deeds marked as Ext. F & Ext. G, which were

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pressed into the service by the defendants to show that

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the plaintiff had sold portions of the suit land to outsiders, were taken into consideration by the Trial Court to hold that the portions had been partitioned

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among the shareholders and that they were using the

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same independently. On such finding, the Trial Court disbelieved the claim of the plaintiff that the property was still joint nor the claim of existence of the joint dwelling house. On such findings, the suit was dismissed.

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The plaintiff carried the matter in appeal to the District Court contending mainly that the evidence on record did not support the finding of the Trial Court regarding prior partition but only suggested severance of joint status. After analyzing the evidence the First Appellate Court held that joint recording of the names of the co-sharers in the revenue records shows jointness of the family for which the finding of the Trial Court that there was division of property among the co-sharers of Akhi is not correct. As regards the right of the defendants of joint possession of their purchased land along with the plaintiff the first Appellate Court took note of two sale deeds executed by Tilotama in their favour marked Ext- A & D. It was found that Tilotama, who had 1/3^rd share in

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the joint family property had sold the same extent of the

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property to the defendants. However, the nature of land under the suit Plot No.188 is Ghara (Home). Thus, as per Section 44 of the Transfer of Property Act, the stranger transferee is debarred from exercising the right to joint possession. The first Appellate Court did not consider Exts-F & G as admissible evidence. It was held that Tilotama had no alienable interest over her share in the homestead land and the same being an undivided joint family home and homestead for which the transferees i.e., defendants cannot claim joint possession along with the plaintiff without seeking partition in a separate suit.

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In view of the above finding, it was held that the plaintiff is entitled to an order of injunction in respect of suit plot No.188. The appeal was thus allowed in part by injuncting the defendants from possessing their purchased land over suit Plot No.188 along with the plaintiff jointly and from creating any disturbance in the possession of the plaintiff.

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Being aggrieved, the appellants-defendants

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have preferred the instant Second Appeal, which was

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admitted on the following substantial questions of law:

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Whether the lower appellate court is legally correct in saying that Exts. F & G, two registered sale deeds executed by the plaintiff without due compliance of provisions of sections 65 and 66 of the Evidence Act, were not admissible, when these two documents were necessary to prove previous partition amongst the parties?

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Whether the lower appellate court is justified in finding that the Plaintiff is entitled to an order of injunction, because the suit property is undivided joint property, a finding which is perverse, illegal ?

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Whether the court below is correct in saying that defendants were strangers and as such a relief of injunction is maintainable ?

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Heard Mr. A.C. Mohapatra, learned counsel for

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the defendants-appellants and Mr. A.S. Nandy, learned counsel for the plaintiff-respondent.

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Mr. Mohapatra, would argue that apart from the recitals of the sale deeds executed by Tilotama in favour of the defendants being Exts-A & D, two other sale deeds, the certified copies of which were proved as Exts-F

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& G were also relied upon by the defendants to prove that

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there was prior partition of the joint family properties. The plaintiff himself sold portions of the suit property to outsiders as is evident from Exts- F & G, which also proves prior partition. But the First Appellate Court disbelieved the same as the original sale deeds were not proved ignoring the provision of law laid down in Section 65(a) of the Evidence Act. The defendants could not have produced the original documents as the same were not in their possession for which secondary evidence adduced ought to have been accepted. According to Mr. Mohapatra, learned counsel for the appellants, had the two sale deeds been taken into consideration, it would have clearly proved that there was prior partition for which no injunction could have been granted in favour of the plaintiff in respect of the separated property.

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Mr. A.S. Nandy, on the other hand, would

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argue that Ext-3 and Ext-4 show joint recording of the suit property. Even otherwise, assuming that there was severance of status on the co-sharers the home and

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homestead property cannot be jointly possessed by the stranger purchasers in view of Section 44 of the T.P. Act.

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The First Appellate Court has, therefore, rightly allowed the relief of injunction in respect of the homestead property.

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Much has been argued as regards admissibility of the certified copies of sale deeds marked as Exts-F & G, which according to the Mr. Mohapatra, learned counsel for the appellants-defendants, show partition of the suit properties. As per the plaint, despite claiming that the family was joint and the plaintiff himself sold portions of the suit land in favour of two outsiders vide Exts- F & G, the defendants obviously could not have obtained the original sale deeds for being produced before the Court as they were not part of the transaction. Under such circumstances, secondary evidence would be admissible in view of the provision under Section 65(a) of the Evidence Act. However, after going through the impugned judgment and materials on record, this Court is of the considered view that even assuming for the sake of

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argument that the certified copies of the sale deeds were admissible and ought to have been considered the same, would not be much assistance to the case of the defendants for the reason that there is clear evidence that one of the suit plots being Plot No.188 is of home and homestead kisam.

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Once this is accepted, the provision under

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Section 44 of the T.P. Act would come into the way. Though a feeble plea was raised by the defendants before

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the Trial Court that they are not entirely strangers to the family yet in the absence of any evidence, the same is unacceptable. Under such circumstances, the defendants can only be treated as stranger purchasers who, in the absence of a valid partition cannot seek joint possession of the dwelling house along with its co-owner. Of course, they have right to ask for partition or the option to wait till partition by metes and bounds is effected by the cosharers but prior to that they cannot claim possession along with the plaintiff co-owner.

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In a recent decision rendered in the case of SK.

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Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes & Others, reported in 2024 SCC OnLine SC 2456 , the Supreme Court has reiterated the settled principle of law by observing as follows:

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“19 . The above findings of the Trial Court and that of the First Appellate Court have not been disturbed by the High Court rather the Second Appellate Court has accepted the same which clearly demonstrates that the story of family settlement, as set up by the defendantappellant S.K. Golam Lalchand and Brij Mohan was totally disbelieved by all the three courts. Moreover, it had come to the forefront that the property had remained the joint property of late Salik Ram and late Sita Ram as the gifting of share by late Salik Ram in favour of late Sita Ram was not proved. The gifting and the relinquishment of shares by the three daughters/sisters in favour of Brij Mohan also could not be established.

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20. In this view of the matter, the entire property purchased by the two brothers late Salik Ram and late Sita Ram in the year 1959 vide Exh.1 continued to be the joint property in which both of them had equal rights. On their death, the same devolved upon their respective heirs and legal representatives including Brij Mohan, his three sisters on one side and plaintiff-respondent Nandu Lal, his three brothers and five sisters on the other side. Thus, Brij Mohan alone was not competent to execute a sale of the entire

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property in favour of the defendant-appellant S.K. Golam Lalchand, that too without its partition by metes and bounds.

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21. Since the suit property has many coowners the including plaintiff-respondent Nandu Lal and Brij Mohan, the defendantappellant S.K. Golam Lalchand could not have acquired right, title and interest in the whole of the suit property solely on the basis of the sale deed dated 19.05.2006 executed by Brij Mohan. The said sale deed, if at all, in accordance with Section 44 of the Transfer of Property Act, 1882 may be a valid document to the extent of the share of Brij Mohan in the property and defendant-appellant S.K. Golam Lalchand is free to take remedies to claim appropriate relief either by suit of partition or by suit of compensation and damages against Brij Mohan.

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22. The authorities cited on behalf of the defendant-appellant S.K. Golam Lalchand are only to the effect that there is no illegality on his part in purchasing the share of Brij Mohan in the suit property and to that effect the sale in his favour is valid. There are no two opinions on the above aspect as mentioned earlier but those authorities do not help him in any way to enable us to reverse the decree passed by the First Appellate Court as affirmed by the High Court.

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23. A faint effort was made in the end to contend that the plaintiff-respondent Nandu Lal had not asked for any relief of cancellation of the sale deed by which the property was purchased by the defendant-appellant S.K. Golam Lalchand and, therefore, is not entitle

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to any relief in this suit. The argument has been noted only to be rejected for the simple reason that Section 31 of the Specific Relief Act, 1963 uses the word ‘may’ for getting declared the instrument as void which is not imperative in every case, more particularly when the person is not a party to such an instrument.

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24. The suit property which is undivided is left with the co-owners to proceed in accordance with law to get their shares determined and demarcated before making a transfer.

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25. The point for determination formulated in paragraph 12 above is accordingly answered and it is held that Brij Mohan alone was not competent to transfer the entire property without getting his share determined and demarcated so as to bind the other co-owners. Accordingly, the defendant-appellant S.K. Golam Lalchand has rightly been restrained by the decree of injunction in acting in derogation of the propriety rights of the coowners until and unless the partition takes place.

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26. In the above facts and circumstances, we do not find any merit in this appeal and the same is dismissed upholding the judgments and orders of the High Court dated 06.07.2021 and of the First Appellate Court dated 07.04.2018.

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27. In the facts and circumstances of the case, there shall be no orders as to costs.”

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Reading of the impugned judgment reveals that the First Appellate Court has rightly taken note of the evidence and the settled position of law to arrive at the finding that the defendants being stranger purchasers cannot be permitted to claim joint possession in respect of Plot No.188 along with the plaintiff. From what has been narrated hereinbefore, this Court finds no reason to differ from such finding.

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Thus, from a conspectus of the analysis of facts and law, this Court is of the considered view that even if Exts - F & G had been admitted into evidence, the same would not have materially altered the ultimate finding rendered by the First Appellate Court.

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In the result, the appeal is found to be devoid of merit and is, therefore, dismissed but in the circumstances, without any cost.

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……………………….

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Signature Not Verified

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Digitally Signed Signed by: PUSPANJALI GHADAI Reason: Authentication Orissa High Court, Cuttack. Location: High Court of Orissa, C The 28^th January, 2025/ P. G utta hadai, Jr. Steno ck. Date: 30-Jan-2025 11:30:08

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Sashikanta Mishra Judge

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Bimal Ch.Mohanty v. Ananta Mohanty

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Bimal Ch.Mohanty v. Ananta Mohanty

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