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2010 Supreme(Ori) 728
IN THE HIGH COURT OF ORISSA
Sanju Panda, J.
MAKARDHAJA KHAMARI AND ANOTHER - APPELLANT
Versus
SUKA PADHAN AND OTHERS - RESPONDENT
First Appeal No. 325 of 1983
Decided On : 23-09-2010
The burden of proof lies with the plaintiff to establish the joint family nature of the properties and allegations of fraud and undue influence.
Headnote:
Joint Family Properties - Sale Deed - Major Settlement Parcha, Rent Receipt, Hal Settlement Record - The court discussed the joint family properties, the validity of the sale deed, and the evidence presented by both parties. Key legal provisions include the presumption of correctness of records prepared by the Settlement authorities and the burden of proof on the plaintiff to establish joint family properties. The court set aside the judgment and decree, allowing the appeal and dismissing the plaintiff's suit.
Fact of the Case:
The plaintiff filed a suit to declare a sale deed null and void, claiming that the disputed land was joint family property and the sale was executed without consent. The trial court found in favor of the plaintiff, but the defendants appealed.
Finding of the Court:
The court found that the plaintiff failed to prove the jointness of the properties and did not establish fraud or undue influence in the execution of the sale deed. The trial court's findings were set aside, and the appeal was allowed, dismissing the plaintiff's suit.
Issues: The issues included the cause of action for the suit, the joint family nature of the properties, the validity of the sale deed, and the maintainability of the suit.
Ratio Decidendi: The plaintiff failed to prove the joint family nature of the properties and the allegations of fraud and undue influence in the sale deed. The burden of proof was on the plaintiff, and the trial court's findings were not sustained.
Final Decision: The court set aside the judgment and decree, allowed the appeal with costs, and dismissed the plaintiff's suit.
JUDGMENT :
S. Panda, J. - Defendant Nos. 1 & 2-appellants have filed this appeal challenging the judgment and decree dated 12.4.1983 and 20.4.1983 respectively passed by the learned Sub-Judge, Bargarh in Title Suit No. 89 of 1981.
2. Respondent no. 1 as plaintiff filed the suit for declaration that he is not bound by the registered sale deed dated 28.8.1981 executed by defendant no. 2 in favour of defendant no. 1 and the same is null and void in respect of the schedule land. In the plaint, he specifically pleaded that Schedule-B land is the joint family properties of the parties. Till date, the parties hold and possess the properties jointly. The ROR was published in their names jointly and they are paying the rent accordingly. The disputed land described in Schedule-A is also a part of the joint family properties possessed by the parties jointly. Defendant no. 1 is a stranger to the family as well as to the joint family properties. On the ill-advice of defendant no. 1, defendant no. 2 executed a sale deed in respect of the disputed land on 28.8.1981 without knowledge and consent of the plaintiff. Defendant no. 2 is very weak in mind due to his old age. Taking advantage of his old age, defendant no. 1 pressurized defendant no. 2 to execute the sale deed without any consideration and the allegation of exclusive possession of defendant no. 2 in respect of the disputed land was false, baseless and the same was only a paper transaction. As there was no partition between the parties, defendant no. 2 had no right whatsoever to transfer the joint family properties without knowledge and consent of the plaintiff and the plaintiff was not bound by the same. Plaintiff and defendant nos. 2 to 5 are in possession of the disputed land at their own right, title and interest, the cause of action for filing of the suit arose on 29.8.1981 when defendant no. 1 declared in the village that he had obtained a registered sale deed from defendant no. 2. After getting such information, the plaintiff verified about the truthfulness of the said fact, obtained the certified copy of the documents and filed the aforesaid suit.
3. The genealogy of the parties as given by the plaintiff in the plaint is as follows:
4. After receiving notice, defendant nos. 1 and 2 filed a joint written statement. They admitted the genealogy given by the plaintiff. They stated that the ancestral properties were partitioned by metes and bounds between Dharani and Trilochan about 50 years ago. On the strength of the said partition, each of them possessed the properties falling to their share to the exclusion of the other. Dharani sold a piece of land out of his share in favour of the mother of defendant no. 4. Defendant no. 4 is in possession of the said land till date. During life-time of Dharani, he effected a partition between his two sons, namely, Lambodar and defendant no. 2. Such partition took place about 40 to 50 years ago and each of them are in respective possession of their separate shares to the exclusion of the others. In the said partition, Schedule-A land was allotted to defendant no. 2. While he was in exclusive possession of the same, he sold the properties to defendant no. 1 who offered adequate consideration i.e. Rs. 15,000/-. Accordingly, after receiving consideration, defendant no. 2 executed the sale deed in favour of defendant no. 1 to discharge his debt. The plaintiff offered to purchase the said land. As he offered a lower price, defendant no. 2 did not accept his offer. After the said sale, defendant no. 1 possessed the land in question and was doing cultivation in the said land. Defendant no. 1 was a bona fide purchaser of the said land. On the above pleadings, they prayed for dismissal of the plaintiff's suit. Defendant nos. 3 to 5 remained ex parte.
5. On the above pleadings, the trial Court framed as many as six issues which are as follows:
ISSUES
1. Is there any cause of action for the suit ?
2. Are the suit properties the joint family properties of the pl
