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IN THE HIGH COURT OF ORISSA AT CUTTACK
D. DASH, J.
Chandra Sekhar Sahu and Another – Appellants
Versus
Nrusingha Charan Jena (Since Dead) through his LRs. and Others – Respondents
R.S.A. No. 55 of 2007
Decided On : 25-04-2022
Code of Civil Procedure - Appeal - Section 100 - The court discussed the execution of sale deeds, burden of proof, and the validity of the sale deeds under Exts.C & D. The judgment and decree passed by the First Appellate Court in favor of the Plaintiff were confirmed.
Fact of the Case:
The Plaintiff filed a suit for partition, seeking to set aside sale deeds executed by his father. The Trial Court dismissed the suit, but the First Appellate Court allowed the appeal, setting aside the sale deeds and granting the Plaintiff the relief.
Finding of the Court:
The Court found that the Defendants failed to prove the due and valid execution of the sale deeds by the Plaintiff's father. The Court also held that the suit was not barred by limitation, and the Plaintiff was entitled to seek a declaration to set aside the sale deeds.
Issues: The issues included the execution of the sale deeds, legal necessity, and possession of the lands. The substantial questions of law revolved around the validity of the sale deeds and the entitlement of the Plaintiff to seek a declaration to set them aside.
Ratio Decidendi: The burden of proof of due execution was placed upon the Defendants, and the Court found that they failed to discharge this burden. The Court also held that the suit was not barred by limitation, and the Plaintiff was entitled to seek a declaration to set aside the sale deeds.
Final Decision: The Appeal was dismissed, and the judgment and decree passed by the First Appellate Court in favor of the Plaintiff were confirmed.
JUDGMENT :
D. DASH, J.
1. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short ‘the Code’) have assailed the judgment and decree dated 10.10.2006 and 17.10.2006 respectively passed by the learned Additional District Judge, Kendrapara in R.F.A. No. 6 of 2002.
By the same, the First Appeal filed by the original Respondent No. 1 (Plaintiff) under section 96 of the Code has been allowed whereby the judgment and decree dated 22.12.2001 and 23.01.2002 respectively passed by the learned Civil Judge, Senior Division, Kendrapara in Title Suit No. 169 of 1984, have been set aside.
The suit filed by Respondent No. 1, as the Plaintiff, has been decreed setting aside the sale deeds dated 06.10.1980 (Ext.C & D). It has been further directed that the Trial Court would determine the shares of the Plaintiff and the branches of his two sisters as well as of his step brother, the predecessor-in-interest of Respondents 3 to 6, who had been arraigned as the Plaintiff, since had prayed for partition of the properties described in Schedule-A of the plaint. The suit having been dismissed by the Trial Court, the Respondent No. 1 being the aggrieved Plaintiff had carried the First Appeal wherein he has been successful and, therefore, these Appellants, who were the Defendants 4 and 6 in the Trial Court have filed the Second Appeal.
It may be stated here that Nrusingha Charan Jena, the Respondent No. 1 (Plaintiff) having died during pendency of this Appeal, his legal representatives have come on record as Respondent No. 1(a) to 1(e).
The Defendant No. 1 having died during pendency of the First Appeal, his legal representatives are now before this court as Respondents 3 to 5.
Similarly Respondent No. 15 was Defendant No. 9 in the Trial Court and he having died, his legal representatives are Respondent No. 15(a) and 15(b). Respondent No. 16 having died during pendency of this Appeal, his legal representations are before this Court as Respondent No. 16(a) to 16(b).
2. 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.
3. Plaintiff’s case is that Maguni had two wives, namely, Taramani and Saraswati. Through Taramani, Maguni has a son Nrusingha and two daughters, namely, Satyabhama and Tilotama. One son Dibyasingha is the son of Maguni born to the second wife Saraswati. It is stated that Magtuni was the Karta of the family. The family possessed agricultural lands and homestead land as stated in Schedule-A of the plaint which includes Schedule-B, C, C/1 and D. It is further stated that Maguni gifted Schedule-C and C/1 lands and alienated Schedule-D properties during the year 1967 to 1977 in respect of which compromise decree has been passed on 08.08.1991 and 26.10.1992.
The present Plaintiff had also filed one Title Suit, i.e. T.S. No. 331 of 1979 against Maguni, Saraswati and Dibyasingha to restrain them from alienating the family properties in Schedule-B land. It is alleged that despite restraint against the transferer passed in Misc. Case No. 127 of 1980 and Misc. Appeal No. 51 of 1980, the Defendants 4 to 6 obtained two registered sale deeds from Maguni on 06.10.1980, one in favour of Defendant No. 4 in respect of Ac. 0.84 decimals and the other in respect of Defendants 5 and 6 for an area of Ac. 0.80 decimals. When T.S. No. 331 of 1979 was pending, Maguni died. The Plaintiff, therefore, withdrew the suit on 25.10.1984 obtaining leave to file a suit for partition.
It is stated that the family possessed vast agricultural lands which eventually were recorded in the name of Maguni as per the records of 1930 settlement. Two sons of Maguni were serving with the Government and remitting money to their father. So, there was no legal necessity for Maguni to transfer the immovable property in order to raise funds. Maguni when was 92 years old, blind, weak, mentally unsound as also physically unfit under the influence
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