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High Court Of Orissa
P. K. Mohanti, J.
RAMA CHANDRA - Appellant
Versus
GADADHAR MOHAPATRA - Respondent
Second Appeal 221 Of 1978
Decided On : 11/06/1979
ADMISSIBILITY OF JUDGMENT - EVIDENCE ACT, SECTION 13 - JUDGMENT NOT INTER PARTES - ADMISSIBLE TO ESTABLISH TRANSACTION OR INSTANCE OF ASSERTION, ACKNOWLEDGMENT OR DENIAL OF RIGHT - JUDGMENT IN PREVIOUS SUIT ADMISSIBLE TO SHOW RELATIONSHIP BETWEEN PARTIES.
Fact of the Case:
Plaintiff claimed title to land, alleging he inherited half-share from his father and purchased the remaining half-share from the widow of the other co-owner. Defendants contested, claiming the land was resumed by the ex-landlord and settled with a deity through them as its marafatdars. The trial court decreed the suit, but the appellate court reversed it, finding the plaintiff was not the son of the co-owner and the sale deed was not produced.
Finding of the Court:
The High Court held that a judgment in a previous suit, though not inter partes, is admissible under Section 13 of the Evidence Act to establish a transaction or particular instance in which the relationship was asserted and recognized or denied. The judgment in the previous suit, though not conclusive, is admissible in evidence like any other fact to be weighed in the balance.
Issues: 1. Whether the judgment in a previous suit, though not inter partes, is admissible under Section 13 of the Evidence Act to establish a transaction or particular instance in which the relationship was asserted and recognized or denied. 2. Whether the plaintiff had acquired any title to the suit land by virtue of his purchase from the widow of the co-owner. 3. Whether the plaintiff is entitled to a declaration of his possessory title over the suit land even if he has no title to the same.
Ratio Decidendi: 1. A judgment in a previous suit, though not inter partes, is admissible under Section 13 of the Evidence Act to establish a transaction or particular instance in which the relationship was asserted and recognized or denied. 2. The judgment in the previous suit, though not conclusive, is admissible in evidence like any other fact to be weighed in the balance. 3. The plaintiff's claim of title based on the sale deed from the widow of the co-owner should be decided by the lower appellate court considering the defendants' admission in the written statement about the execution of the sale deed. 4. The lower appellate court should consider whether the plaintiff is entitled to a declaration of his possessory title over the suit land even if he has no title to the same.
Final Decision: Appeal allowed; decree of the lower appellate court set aside; case remitted for rehearing of the appeal and fresh disposal in light of the observations.
P. K. MOHANTI, J.
( 1 ) THE second Appeal is by the plaintiff against a reversing decree.
( 2 ) THE suit was for a declaration of title to and confirmation of possession over the land in dispute measuring 48 decimals which stand recorded in the names of Arta Sethi and Dama Seth as Desa Heta Dhoba Jagir in the C. S. record of rights finally published in the year 1928--vide Ext. 3. Arta died issueless leaving behind him his widow Fakiri Bewa. Dama died leaving behind him his son saratha. The plaintiff claiming himself to be the son of Saratha came to court with the allegation that he had inherited the half-share of Saratha and had purchased the remaining half-share from Fakiri Bewa by a registered sale deed. Thus, he claimed to be the full owner of the entire 48 decimals of land. After abolition of the intermediary interest, the plaintiff filed an application under section 8 (3) of the Orissa Estates Abolition Act for settlement of the land in his favour. The application was contested by the defendants who are Brahmin mahajans of village Brahmanpada. The plaintiffs application was rejected by the o. E. A. Collector on the ground of non-maintainability. Thereafter, the defendants filed an application before the O. E. A. Collector and an area of 45 decimals out of the suit land was settled in their favour and the remaining area of 3 decimals with the houses standing thereon was settled in favour of the plaintiff. The plaintiff, however, claimed to have been in possession of the entire 0. 48 acre. He came to court as the defendants created troubles in his possession taking advantage of settlement of 45 decimals of land in their favour.
( 3 ) THE suit was resisted by the defendants on the grounds that the plaintiff is not the son of Saratha and that the sale by Fakiri Bewa to the plaintiff was illegal as the disputed land being service jagir land was not transferable. Their further contention was that after the death of Dama and Arta, the land was resumed by the ex-landlord and settled with the deity Jagulei Thakurani through the Brahmin Mahajans of the village as its marafatdars in the year 1930. It was also contended that the suit was bad for nonjoinder of the deity jagulei Thakurani and it was hit by Section 39 of the O. E. A. Act. It was further contended that the defendants had perfected their title to the suit land by adverse possession.
( 4 ) THE trial Court decreed the suit, holding as follows:-
(1) The plaintiff is the son of Saratha and he inherited the properties of Saratha as his sole legal heir. (2) The sale of the suit land bv Fakiri in favour of the plaintiff was valid. (3) The suit is not hit by Section 39 of the O. E. A. Act, as the settlement of the land with the deity was not made under the provisions of the O, E. A. Act. (4) The suit was not bad for non-joinder of Jagulei Thakurani. (5) The plaintiff has title to the suit land and he has been in possession of the same throughout.
The appellate court reversed the decree of the trial court and dismissed the suit on the following findings:
(1) Plaintiff is not the son of Saratha. (2) The question of sale by Fakiri Bewa to the plaintiff could not be decided since the sale deed had not been produced in Court. (3) The defendants had failed to establish that the suit land was resumed by the superior landlord and settled with the deity Jagulei thakurani.
( 5 ) MR. L. Bath, the learned counsel for the appellant advanced the following contentions :
(1) The learned Subordinate Judge having illegally rejected the judgment Ext. 1 as inadmissible in evidence, his finding on the question of relationship between the plaintiff and Saratha Sethi has been erroneous. (2) The sale of the suit land by Fakiri Bewa in favour of the plaintiff having been admitted by the defendants in their written statement, the learned Subordinate Judge should not have avoided to decide the question of plaintiffs title on the ground of non-production of the sale deed. (3) The plaintiff-appellant is
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