Orissa High Court
Bimal Chandra Mohanty And Others vs Ananta Mohanty(Since Dead) on 28 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.68 of 2007
[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.]
Bimal Chandra Mohanty and Others ... Appellants
-Versus-
Ananta Mohanty(since dead) ... Respondents
Sushanta Mohanty and Others
Advocate(s) appeared in this case:
For the Appellants :M/s. P.K. Sahu, A.K. Swain &
A.C. Mohapatra, Advocates
For Respondents : M/s. A.S. Nandy, A.K. Singh &
Gayatri Das, Advocates
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28.01.2025
SASHIKANTA MISHRA, J.
This is a defendants’ appeal against a partly
reversing judgment. The judgment passed by learned
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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.
2. For convenience, the parties are referred to as per
their respective status in the Trial Court.
3. The suit was filed by the original plaintiff-Ananta
Mohanty for permanent injunction against the
defendants.
4. 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.
5. 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
right of joint possession of the house and homestead
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along with the plaintiff. Since they created disturbance,
the suit was filed for permanent injunction against them.
6. 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.
7. Basing on the rival pleadings, the Trial Court
framed the following issues for determination:
(i) Have the plaintiffs any cause of action to
bring this suit?
(ii) Is the suit maintainable in law ?
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(iii) Are the plaintiffs entitled to get any decree of
permanent injunction ?
(iv) What other relief, if any, the plaintiffs are
entitled to get ?
8. The Trial Court first held the issue nos. (i) and
(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
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
plaintiff had come to the Court suppressing material facts.
The two sale deeds marked as Ext. F & Ext. G, which were
pressed into the service by the defendants to show that
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
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.
9. 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 1/3rd share in
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.
10. 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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11. Being aggrieved, the appellants-defendants
have preferred the instant Second Appeal, which was
admitted on the following substantial questions of law:
1. 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?
2. 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 ?
3. Whether the court below is correct in saying
that defendants were strangers and as such a relief
of injunction is maintainable ?
12. Heard Mr. A.C. Mohapatra, learned counsel for
the defendants-appellants and Mr. A.S. Nandy, learned
counsel for the plaintiff-respondent.
13. 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
& 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.
14. Mr. A.S. Nandy, on the other hand, would
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.
The First Appellate Court has, therefore, rightly allowed
the relief of injunction in respect of the homestead
property.
15. 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.
16. Once this is accepted, the provision under
Section 44 of the T.P. Act would come into the way.
Though a feeble plea was raised by the defendants before
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 co-
sharers but prior to that they cannot claim possession
along with the plaintiff co-owner.
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17. In a recent decision rendered in the case of SK.
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:
“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 defendant-
appellant 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.
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 entirePage 12 of 15
property in favour of the defendant-appellant
S.K. Golam Lalchand, that too without its
partition by metes and bounds.
21. Since the suit property has many co-
owners including the plaintiff-respondent
Nandu Lal and Brij Mohan, the defendant-
appellant 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.
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.
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
Page 13 of 15
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.
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.
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 co-
owners until and unless the partition takes
place.
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.
27. In the facts and circumstances of the case,
there shall be no orders as to costs.”
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18. 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.
19. 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.
20. In the result, the appeal is found to be devoid of
merit and is, therefore, dismissed but in the
circumstances, without any cost.
……………………….
Signature Not Verified Sashikanta Mishra
Digitally Signed Judge Signed by: PUSPANJALI GHADAI Reason:Orissa High Court, Cuttack. Authentication Location: The High Court of Orissa, 28th January, 2025/P.Cuttack. Ghadai, Jr. Steno Date: 30-Jan-2025 11:30:08 Page 15 of 15