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Ratan Kharsel and ors. Vs. Basan Bag and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 203 of 1977
Judge
Reported inAIR1983Ori149
ActsCode of Civil Procedure (CPC) , 1908 - Order 14, Rule 1 - Order 41, Rule 24
AppellantRatan Kharsel and ors.
RespondentBasan Bag and ors.
Appellant AdvocateS.S. Swain, Adv.
Respondent AdvocateA.K. Padhi and ;P.K. Misra, Advs.
DispositionAppeal dismissed
Cases Referred(Badri Prasad v. Ganesh Prasad
Excerpt:
.....gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2 and as defendants 1 and 2 had failed to prove the existence of any legal necessity for the sale......of the late dhanu kharsel. defendants 1 and 2 are strangers to the family being purchasers of the suit lands. the plaintiffs' case is that the late dhanu kharsel and plaintiff no. 1 were the jointly recorded tenants of khata no, 40 of village dangarpara and the lands including the suit lands comprised in khata no. 40 are the joint properties of the late dhanu kharsel and plaintiff no. 1. the suit lands are locally known as bagmara bhag. after dhanu kharsel's death his right and interest devolved on plaintiffs 2 and 3 and defendant no. 3. plaintiffs were always in possession of the suit lands, but in the year 1967-68 defendants 1 and 2 created trouble and declared that they had the right to possess the suit lands having purchased the same from defendant no. 3. during the bujharat.....
Judgment:

B.N. Misra, J.

1. Plaintiffs are the appellants against the reversing judgment of the learned Subordinate Judge, Titilagarh. Plaintiff No. 1 is the brother, plaintiff Nos. 2 and 3 are the son and daughter respectively and defendant No. 3 is the Widow of the late Dhanu Kharsel. Defendants 1 and 2 are strangers to the family being purchasers of the suit lands. The plaintiffs' case is that the late Dhanu Kharsel and plaintiff No. 1 were the jointly recorded tenants of Khata No, 40 of village Dangarpara and the lands including the suit lands comprised in Khata No. 40 are the joint properties of the late Dhanu Kharsel and plaintiff No. 1. The suit lands are locally known as Bagmara Bhag. After Dhanu Kharsel's death his right and interest devolved on plaintiffs 2 and 3 and defendant No. 3. Plaintiffs were always in possession of the suit lands, but in the year 1967-68 defendants 1 and 2 created trouble and declared that they had the right to possess the suit lands having purchased the same from defendant No. 3. During the Bujharat proceedings the plaintiffs came to know that defendant No. 3 as the guardian of minor plaintiff No. 2 had sold the suit lands by a registered deed of sale bearing No. 1018 of 1963. It is alleged, that the sale by defendant No. 3 in favour of defendants 1 and 2 purported to be for a consideration of Rs. 1400/- is tainted with fraud and misrepresentation, and is invalid for want of consideration, legal necessity and proper authority. Defendant No. 3 by herself had no right to transfer the suit lands which were the joint properties of the plaintiffs and defendant No. 3. It is also alleged that in the present settlement (in progress) Bandi-Parcha had been wrongly issued in the name of defendant No. 2. The plaintiffs have accordingly prayed for declaration of their right, title and interest over the suit lands after setting aside the alleged sale in favour of defendants 1 and 2, for declaration that the sale of the suit lands in favour of defendants 1 and 2 was invalid, inoperative and void and for confirmation of possession, or in the alternative, recovery of possession through Court.

2. Defendants 1 and 2 contested the suit, but defendant No. 3 did not. The case of defendants 1 and 2 may be briefly stated. According to them, although the record-of-rights of Khata No. 40 stood in the names of the late Dhanu Kharsel and plaintiff No. 1, the lands in that holding had been partitioned between them and there was no join* family or property so far as they were concerned. Dhanu Kharsel having died in the year 1945 his daughter, plaintiff No, 3 has no right, title and interest in the estate. Accordingly it is denied that plaintiff Nos. 1 and 3 have any right, title or interest in the properties of the late Dhanu Kharsel. The possession of the plaintiffs over the suit lands is also denied. It is stated that defendant No. 3 and her minor son, plaintiff No. 2, were the owners of the suit lands and defendant No. 3 on her behalf and on behalf of plaintiff No. 2 sold the suit lands to defendants 1 and 2 in 1963 in order to repay her past debts for a consideration of Rs. 1400/-. The sale was for consideration and legal necessity. Defendant No. 3 delivered possession of the suit lands to defendants 1 and 2 who have been in continuous and peaceful possession of the same since the date of sale. The allegations of the plaintiffs that the sale was void for want of consideration, legal necessity and authority and fraud and misrepresentation are denied. The suit lands were surveyed by the Settlement Officers during the present settlement proceedings and on the basis of the sale and possession, draft rolls have been issued in favour of defendants 1 and 2.

3. The main findings of the learned Munsiff who tried the case are as follows: (1) that defendant No. 3 came into possession of the lands which constituted the legitimate share of her deceased husband by virtue of a compromise between her and plaintiff No. 1 in Revenue Case No. 14/92 of 1949-50 in the file of the Tahasildar, Titilagarh (Ext. B D/-18-11-1949); that consequent upon the compromise there was a partition and the share of the late Dhanu Kharsel was possessed by defendant No. 3 and her minor son, plaintiff No. 2, and plaintiff No. 1 ceased to have any legal claim, right or interest in the lands given to defendant No. 3 under the compromise and (2) that the sale (Ext. AD/- 11-5-63) was for consideration, that after receiving the consideration defendant No. 3 had executed the sale deed which was scribed according to her instruction and that sale was not tainted with fraud or misrepresentation, but that the sale could not receive any legal sanction and was void as defendant No. 3 had no power to alienate her undivided interest in the suit lands in disregard of the interest of the minor plaintiff No. 2 and as defendants 1 and 2 had failed to prove the existence of any legal necessity for the sale. Accordingly the learned Munsif decreed the plaintiff's suit without costs. The right, title and interest of plaintiff No. 2 and defendant No. 3, not plaintiff No. 1, in respect of the suit lands were declared, the sale deed Ext. A was declared void and cancelled and plaintiff No. 2 and defendant No. 3 were held to be entitled to receive possession from defendants 1 and. 2. Defendants 1 and 2 were also held to be entitled to claim refund of the consideration money which they had paid to defendant No. 3 under Section 73 of the Contract Act.

4. Defendants 1 and 2 filed, an appeal against the aforesaid judgment and decree of the learned Munsif. The learned lower appellate Court confirmed the findings of the learned trial Court that plaintiff No. 2 and defendant No. 3 were the owners of the suit lands in which plaintiff No. 1 had no right, title and interest, that the sale by defendant No. 3 in favour of defendants 1 and 2 was for consideration and was not tainted with fraud or misrepresentation and that the sale deed (Ext. A) had been properly and duly executed) by defendant No. 3, but disagreeing with the trial Court the learned lower appellate Court has held that the aforesaid sale was not void but valid and binding on the plaintiffs as the sale was for legal necessity. Accordingly the learned lower appellate Court set aside the judgment and decree of the learned Munsif and allowed the appeal filed by defendants 1 and 2. Hence this appeal by the plaintiffs.

5. The substantial question of law which arises for determination in this appeal is whether the learned lower appellate Court while resettling the issues framed by the trial Court can frame a completely new issue on the question of legal necessity and can dispose of the appeal without giving the parties an opportunity to lead evidence on the said question. Learned counsel for the appellants has urged that the appellants have been prejudiced, as the learned lower appellate Court framed a new issue on the question of legal necessity, but did not allow them an opportunity to lead further evidence with regard to the said issue. With regard to the sale by defendant No. 3 in favour of defendants 1 and 2, the learned trial Court had framed the following issue being No. 2:--

'Whether the widow of Dhanu Kharsel i.e. defendant No. 3 sold the suit lands to defendants Nos. 1 and 2? Whether the sale was for consideration? Whether the sale was tainted with fraud and misrepresentation? Whether the sale is binding on the plaintiffs?

In this context it is necessary to examine the pleadings of the parties. The plaintiffs have stated in para. 7 of the plaint ''that the alleged sale for Rs. 1400.00 in favour of defendants Nos. 1 and 2 by the defendant No. 3 is tainted with fraud and misrepresentation and is invalid in law for want of consideration, legal necessity justifying the transfer and without proper authority for the same.' Defendants 1 and 2 have stated in paragraph 5 of their written statement, 'that the contents of para. 5 of the plaint are denied in toto. Plaintiffs have no possession over the suit lands. Defendant No. 3 Putuni sold the suit lands to the defendants Nos. 1 and 2 by executing a registered sale deed in the year 1963 on her behalf and on behalf of her minor son Tonko Kharsel (described in the plaint as Mohan Kharsal, plaintiff No. 2). The sale of the suit lands was for a consideration of Rs. 1400/- which amount was paid to defendant No. 3 for payment of her past debts. She repaid the debts. Hence the sale was for legal consideration and was a necessity. She delivered possession of the suit lands to the defendants 1 and 2 who are in continuous and peaceful possession of the same all though as purchasers'. It is also necessary to refer to the evidence of the witnesses of both parties on the question of legal necessity. Plaintiff No. 1 has examined, himself as P. W. 1. In his examination-in-chief he has stated that defendants 1 and 2 have purchased the suit lands from defendant No. 3. In cross-examination he has stated that he had asked defendant No. 3 about the sale and the letter had said, that since her son was still a minor, the question of selling the lands did not arise and defendant No. 3 had further stated that as she had run into debts to the extent of Rs. 200/- to Rs. 300/- she had mortgaged the suit lands. Plaintiff No. 1 had, also asked defendant No. 3 as to what was the necessity for the sale and why at all she sold the suit lands, but according to plaintiff No. 1, defendant No. 3 kept quiet and did not answer his queries. P. W. 2 has stated that plaintiff No. 1 was looking after both plaintiff No. 2 and defendant No. 3 and that defendant No. 3 had no necessity whatsoever since P. W. 1 was meeting all her needs. P. W. 3 has also stated that the plaintiff's family has no needs. Defendant No. 3 who has examined herself as P. W. 5 has stated that she never needed any money to pay off any loan and she was not in want. Defendant No. 1 has examined himself as D. W. 3. He has stated that before he purchased the suit lands he had enquired, from defendant No. 3 and learnt that she wanted to liquidate some debts which she owed to D. W. 5 and one Mana Bag of Mahulpara. He has further stated that out of the consideration money defendant No. 3 paid Rs. 600/- to D. W. 5 and Rs. 750.00 to Mana Bag in his presence and the promissory notes which had been executed by defendant No. 3 in token of the loans were destroyed consequent upon liquidation of the loans. In cross-examination defendant No. 1 has stated that he had paid the consideration money to defendant No. 3 who in turn paid off her loans to her creditors and that D. W. 5 had charged interest for two years and Mana Bag one year. D. W. 5 has stated that defendant No. 3 had taken loan from him on executing a promissory note and the latter repaid the loan with interest in 1963 by selling her lands to defendants 1 and 2. Defendant No. 3 had paid Rs. 600.00/- to D. W. 5. D. W. 5 had returned the hand-note which was destroyed by defendant No. 3 after repayment. In cross-examination D. W. 5 has stated that defendant No. 3 had got her son married and had paid something to her daughter out of the loan amount. D. W. 4 is the scribe of Ext. A. He has stated that he has scribed the sale deed according to the instruction of defendant No, 3 and the latter had stated that she was selling the suit lands because of legal necessity and that from out of the consideration money she had received she had already repaid the loans. Thus it is seen from the pleadings and evidence adduced by the parties that both sides had taken definite stands on the question of legal necessity and had also led evidence on the said question in support of their respective stands. No doubt it is true that the learned Munsif while framing issue No. 2 omitted to use the expression--'legal necessity'--,but he has considered the question of legal necessity under the following sub-heading of issue No. 2--'whether the sale is binding on the plaintiffs ?' In these circumstances, the learned lower appellate Court recast the issue and included, the sub-item--whether the sale was for legal necessity--under issue No. 2. The learned lower appellate Court observed that there was sufficient material before him to consider and decide the question of legal necessity without remand and as such he proceeded with the appeal. This course of action by the learned lower appellate Court cannot be said to have caused any prejudice to the plaintiffs in the facts and circumstances of this case. As already stated, the plaintiffs have stated in the plaint that the sale was not supported by legal necessity while the defendants have pleaded in their written statement that the sale was for legal necessity. The plaintiffs have adduced evidence to show the absence of legal necessity and the defendants have led evidence to prove the existence of legal necessity. In these circumstances, the appellants cannot be said to have been taken by surprise by the mere redrafting of the issue on the question of legal necessity. In this context it would be useful to refer to the following observations of the Supreme Court in AIR 1963 SC 884 (Kameswaramma v. Subba Rao) :--

'......... No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings..............'

6. Relying upon the decision reported in AIR 1977 SC 2047, (Badri Prasad v. Ganesh Prasad), learned counsel for the appellants has urged that the appeal should be remanded to the lower Court for fresh disposal after giving the appellants an opportunity for adducing further evidence. In the aforesaid Supreme Court case (AIR 1977 SC 2047) rival versions were set up, one of licence and the other of lease. The case of licence had been negatived, but the question whether it was a case of lease had been left ambiguous and this was held to be wrong since a specific consideration of the issue about the lease and a finding thereon was necessary. The facts of the present case are however entirely different. Here the question is one of legal necessity and the conclusion on that question has not been left ambiguous. On the basis of the pleadings of the parties and the evidence adduced by them, the learned lower appellate Court has disagreed with the trial Court and come to hold that the sale by defendant No. 3 in favour of defendants 1 and 2 was for legal necessity. The course followed by the learned lower appellate Court was justified on the facts of the case. There is no necessity for a remand since the parties went to trial fully aware of the rival case and had led all the evidence they had in support of their respective stands. The finding of the learned lower appellate Court that the sale by defendant No. 3 in favour of defendant Nos. 1 and 2 was for legal necessity is based on a correct analysis and appraisal of the evidence adduced in the case and hence I agree with the said finding.

7. The concurrent findings of the Courts below that plaintiff No, 2 and, defendant No. 3 were the owners of the suit lands to the exclusion of plaintiff No. 1 and that the sale by defendant No. 3 in favour of defendants 1 and 2 was for consideration and not tainted with fraud and misrepresentation are confirmed.

8. In the result, this appeal is dismissed. The judgment and decree of the first appellate Court are confirmed. In the facts of this case parties will bear their own costs throughout.


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