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Charan Misra and anr. Vs. Labanya Debi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 16 of 1980
Judge
Reported inAIR1987Ori20; 60(1985)CLT503
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 100- Order 41, Rule 27; Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 3(1) and 4(4)
AppellantCharan Misra and anr.
RespondentLabanya Debi
Appellant AdvocateDeepak Misra, Adv.
Respondent AdvocateR.C. Ram and ;B. Sahoo, Advs.
DispositionAppeal dismissed
Cases ReferredMunicipal Corporation of Greater Bombay v. Lala Pancham
Excerpt:
.....and he was unable to see clearly and the defendants failed to establish that jadumani executed the sale deed, ext. a clearly understanding the purport and nature of the transaction: the lower appellate court also affirmed the finding of the trial court regarding passing of consideration by holding that the defendants have failed to establish passing of consideration. a without understanding the contents thereof as well as no consideration passed under ext. it is well settled that the provisions of order 41, rule 27, c. the law on the subject has been well discussed by a judgment of this court in the case of gopinath deba bije v. are not satisfied and, therefore, the application for additional evidence filed by the appellants must be rejected. after rejection of the prayer for additional..........after his death, the plaintiff as his heir became the owner of the property and possessed the suit land. in the year 1975, the defendants prevented the plaintiff from going upon the land alleging that they have purchased the same in the year 1962. the plaintiff on enquiry came to learn that the defendants have managed to get a fraudulent sale deed from her father on 14-9-1962 by exercise of fraud and undue influence without payment of any consideration and without the document being read over and explained to late jadumani misra and, therefore the sale deed is void and no title has passed on to defendant 1 on the basis of the said sale deed. the defendants were never in possession of the suit land. as the plaintiffs possession was threatened as stated earlier the present suit was.....
Judgment:

G.B. Patnaik, J.

1. Defendants are the appellants against a confirming judgment in a suit for declaration of title and recovery of possession.

2. According to the plaintiffs case, her father Jadumani Misra was the owner of the suit property and was possessing the same till his death in the year 1963. After his death, the plaintiff as his heir became the owner of the property and possessed the suit land. In the year 1975, the defendants prevented the plaintiff from going upon the land alleging that they have purchased the same in the year 1962. The plaintiff on enquiry came to learn that the defendants have managed to get a fraudulent sale deed from her father on 14-9-1962 by exercise of fraud and undue influence without payment of any consideration and without the document being read over and explained to late Jadumani Misra and, therefore the sale deed is void and no title has passed on to defendant 1 on the basis of the said sale deed. The defendants were never in possession of the suit land. As the plaintiffs possession was threatened as stated earlier the present suit was filed.

3. The defendants to filed a joint written statement and according to them Jadumani even though was old but did not lose his power of understanding and was mentally fully alert. He executed the sale deed after fully understanding the contents thereof and the sale deed is valid and conferred valid title on the defendants. According to them the defendants and Jadumani were residing in the suit house and after Jadumani's death the defendants remained in possession of the same and the plaintiff never remained in the suit house. Further the house in question has been recorded in the name of defendant 1 during the life time of Jadumani in spite of the objection of the plaintiff and the plaintiff knew about the execution of the sale deed by her father long since. Therefore, the suit is barred by limitation. It is pleaded that the suit is undervalued and proper court-fee has not been paid. The defendants made an averment in the written statement to the effect that on the date the father of the plaintiff executed the sale deed in their favour, also executed a deed of gift in favour of the plaintiff in respect of some of his lands.

4. On these pleadings the learned Munsifframed as many as 10 issues and recorded thefollowing findings :--

(i) The plaintiffs father was unable to see at the time of execution of Ext. A, the sale deed in favour of the defendants.

(ii) The evidence of P. Ws. 1 and 3 that the plaintiffs father lost power of understanding cannot be believed.

(iii) Although Ext. A was read over to the plaintiffs father, yet it was not explained to him and he did not understand the contents thereof.

(iv) Ext. A has not been validly executed and is not supported by consideration.

(v) Since passing of title is dependent on the passing of consideration, no title passed to defendant 1 on the basis of Ext. A.

(vi) The defendants unauthorisedly dispossessed the plaintiff from the suit land in the year 1975 after the death of her father.

(vii) The suit being one based on title and the plaintiff having come to know of the sale deed after the death of her father in the year 1975, the suit is not barred by limitation.

On these findings the suit was decreed.

5. On appeal, the lower appellate Court affirmed the finding of the trial Court to the effect : --

'It is manifest, therefore, that the illiterate vendor did not understand the nature of the transaction.'

It was further held by the lower appellate Court that admittedly the vendor had a very week eyesight and he was unable to see clearly and the defendants failed to establish that Jadumani executed the sale deed, Ext. A clearly understanding the purport and nature of the transaction: Since Jadumani was admittedly an old man of 90 years and was an illiterate person, title does not pass under Ext. A as he did not execute Ext. A after knowing and understanding the contents thereof. The lower appellate Court also affirmed the finding of the trial Court regarding passing of consideration by holding that the defendants have failed to establish passing of consideration.

6. Mr. Deepak Misra, the learned counsel for the appellants raised two submissions in this second appeal, firstly he contends that in view of the fact that the Mouza Basudeipur under Balianta P.W. in which the suit lands are situate has been brought under a notification under the Consolidation of Holdings and Prevention of Fragmentation of Land Act, the suit must be held to have abated and the decree of the lower Courts cannot be sustained. The learned counsel further contended that in view of his application filed for additional evidence and the documents filed thereunder, the matter should go back on remand for re-disposal as some vital piece of evidence has not been considered.

Mr. Ram, the learned counsel for the respondent on the other hand submits that in view of the confirming findings of fact this Court in second appeal cannot interfere with the judgments of the two Courts below. The findings of the Courts below to the effect that Jadumani was an illiterate old man and executed Ext. A without understanding the contents thereof as well as no consideration passed under Ext. A are pure questions of fact and as submitted by Mr. Ram are not amenable for interference by this Court in second appeal.

7. Mr. Misra, the learned counsel for the appellants, however, submitted that certain documents which are being filed in this Court by way of additional evidence would have a vital bearing on those findings and, therefore, the matter should be remanded. It is, therefore, necessary first to decide the question of taking additional evidence in the case. The documents in question are one registered sale deed dt. 17-2-1976 executed by the plaintiff in favour of one Kelu Charan Das, the registered gift deed dt. 14-9-1962 executed by Jadumani in favour of the plaintiff and the certified copy of the order dt. 22-6-73 passed by the Assistant Settlement Officer. The application for additional evidence has been filed on 17-1-83 invoking the jurisdiction of this Court under Section 151, C.P.C. Mr. Misra for the appellants submits that it is actually one under Order 41, Rule 27, C.P.C. In the said application a bald assertion has been made to the effect that the documents are most important and relevant to decide the dispute between the parties and, therefore, they may be taken into consideration in the interests of justice. There has been no iota of assertion as to why these documents could not be filed in the Court below. There is no assertion in the application for additional evidence that the appellants were not aware of the documents at any earlier stage of the suit or the appeal before the lower appellate Court. It does not even disclose as to when the documents were discovered and by whom. The relevance and importance of these documents have also not been stated in the application filed for taking the documents as additional evidence. But Mr. Misra, during hearing contended that these would have a great bearing on the findings of the Courts below regarding the power of understanding of the vendor of Ext. A when Ext. A was executed. It is well settled that the provisions of Order 41, Rule 27, C.P.C. are not intended to enable the appellate Court to dispose of the appeal in a particular way. In other words, when the appellate Court would be able to pronounce the judgment without taking any additional evidence, it would not accept additional evidence just to dispose of an appeal in the way in which it wants to. The law on the subject has been well discussed by a judgment of this Court in the case of Gopinath Deba Bije v. Biswanath Misra, (1973) 39 Cut LT 428. In this connection, a decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 may also be seen. Applying the ratio of the aforesaid decisions I am firmly of the opinion that the ingredients contained in Order 41, Rule 27, C.P.C. are not satisfied and, therefore, the application for additional evidence filed by the appellants must be rejected. After rejection of the prayer for additional evidence and in view of the confirming findings of fact, there is no substantial question of law to be decided in this second appeal and it is too well settled that the findings of fact cannot be interfered with in a second appeal.

8. The only other contention remains to be considered as to the question of abatement under Section 4(4) of the Consolidation of Holdings and Prevention of Fragmentatiqn of Land Act. Mr. Ram, for the respondent does not dispute the position that there has been a notification under Section 3(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act and the suit land is within the area of operation of the aforesaid notification. But Mr. Ram contends that there is no provision in the Consolidation of Holdings and Prevention of Fragmentation of Land Act to declare the sale deed as void on the ground of either non-passing of consideration or that the executant did not understand the contents of the document before executing the sale deed. If the relief which a plaintiff seeks in the suit cannot be granted under the provisions of the Consolidation of Holdings and Prevention of Fragmentation of Land Act, the suit would not abate. In my opinion, the aforesaid contention of Mr. Ram, has ample force and the suit in question would not abate under Section 4(4) of the Act since the plaintiff cannot get this relief from an authority under the provisions of the Consolidation of Holdings and Prevention of Fragmentation of Land Act. In that view of the matter, no order can be passed by the Court under Section 4(4) of the Act and the contention of Mr. Misra on that score as well as the application filed by him on 12-1-1982 must stand rejected.

9. In the ultimate result, therefore, there is no merit in this second appeal which is accordingly dismissed, but in the facts and circumstances of the case, there would be no order for costs.


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