Arikhita Sahu and Others vs J. Krishnaveni and Others

A.K. Parichha, J.—Plaintiffs are in appeal against the judgment and decree passed by the learned District Judge, Ganjam-Gajapati, Berhampur in Title Appeal No. 53 of 1999 confirming the judgment and decree of the learned Civil Judge (Junior Division), Berhampur in Title Suit No. 58 of 1996.

Appellants as Plaintiffs filed the suit with the pleading that the suit property originally belonged to Sahu family of village Nimakhandi. There was a partition suit bearing O.S. No. 23 of 1943 amongst the members of Sahu family wherein receivers were appointed for the suit properties. One Damodar Sahu, who was one of the receivers was permitted by the Court to sell part of the suit property on Survey Plot No. 58 and 59/2 of mouza Shankarpur and accordingly, the said receiver sold the suit property to one P.C. Podar vide document No. 1212/60. The purchaser P.C. Podar took delivery of possession of the same and later on sold the suit property to one Subhakaran Baradia, who was the karta of the joint family. In an amicable partition amongst the members of Baradia family, Ac.0.860 dec. of land including the suit land fell to the share of Respondent Nos. 4 and 5, namely, Lalit Kumar Baradia and Pradip Kumar Baradia. In 1985 these Respondents 4 and 5 file T.S. No. 13 of 1985 in the Court of learned Civil Judge (Junior Division), Berhampur for declaration of their right, title and confirmation of possession over the suit land arraying their brother of Subhakaran Baradia, and Joshep Volaram as Defendants and obtained a decree. They then filed Mutation Case No. 2036 of 1986 which was allowed. Thereafter, the Respondent No. 3 Pradip Kumar Baradia on his behalf and a power of attorney holder of his brother Lalit Kumar Baradia sold the suit land to the Plaintiffs-Appellants by means of three registered sale deeds in the year 1987. The Plaintiffs after purchase filed mutation cases bearing Nos. 1867, 1868, 1869 of 1987 for mutation of the suit lands wherein the present Respondent No. 1 filed objection; stating inter alia, that the suit lands have already been mutated in tier favour in Mutation Case No. 4781 of 1985. Defendant No. 1 also preferred Mutation Appeal before the S.D.O., Berhampur against the mutation order of Lalit Kumar Baradia and Pradip Kumar Baradia and the mutation order was set aside and the matter was remanded for fresh enquiry. Defendant No. 1 then filed T.S. No. 135 of 1991 wherein the decree passed in favour of Lalit Kumar Baradia and Pradip Kunrur Baradia in T.S. No. 13 of 1985 was set aside. The Plaintiffs alleged that they were not made parties in mutation appeal or the subsequent title suit. They also alleged that Santosh Kumar Baradia, Defendant No. 6 had expired on 27.5.1985, but Defendant No. 1 created a fictitious person and obtained the ex parte decree in T.S. No. 135 of 1991, which was, therefore, not binding on the Plaintiffs. It was the further case of the Plaintiffs that Defendant No. 1, having no title and possession sold Ac.540 dec. of land in favour of Defendant No. 3 by registered sale deed dated 20.1.1996 and since the date of such sale, Defendant Nos. 1 to 3 made attempts to dispossess the Plaintiffs from the suit land, the Plaintiffs had to file the suit asking for declaration of his right, title and interest and confirmation of possession over the suit property.

Respondents 4 and 5 as Defendants 4 and 5 supported the case of the Plaintiffs. Defendant No. 6 entered as intervenor and pleaded that Defendant Nos. 4 and 5 died in a motor accident on 1.3.1976 and prayed for dismissal of the suit on the ground that it has been filed against a dead persons. Defendant Nos. 1 to 3 while denying the averments of the plaint, pleaded, inter alia that one J. Tateya had purchased Ac.0.43 dec. of land out of Ac.2.56 cents of land in Survey No. 59 of T.D. No. 894 and 43 cents of land in Survey No. 58 appertaining to TD 894 on 31.12.1931 by written instrument. The said J. Tateya gifted 10 cents of land to his 3rd wife on 12.7.1984 and executed a will bequeathing his remaining property in favour of Defendant No. 1, who is his daughter-in-law and accordingly, Defendant-Respondent No. 1 remained in possession of the above said 76 cents of land even during the life time of J. Tateya and this land was also mutated in her name in Mutation Case No. 4781 of 1985 and 2036 of 1986. Defendant No. 1 then sold this land to Defendant-Respondent No. 3 under sale deed, Ext.T/1 and delivered possession of the same and in the process, Defendant-Respondent No. 3 became the owner in possession.

Learned trial Court framed as many as 14 issues. The Plaintiffs examined three witnesses and produced some documents, which were marked as Exts.1 to 30, Defendant Nos. 4 and 5 examined one witness and produced some documents, which were marked as Exts. A to F, Defendant Nos. 1 to 3 examined two witnesses and produced some documents, which were marked as Exts. AI to W1 series. On consideration of these evidence, learned trial Court dismissed the suit of the Plaintiffs with the findings that the sale of the land by Damodar Sahu in favour of P.C. Podar was invalid, the Plaintiffs failed to prove title and possession of their predecessor in interest over the suit land, the plea of partition in the Bardia family and allotment of the suit land to the share of Respondent Nos. 3 and 4 was not believable, that the suit property was not part of the property belonging to Sahu family as noted in O.S. No. 23 of 1943 and that the Plaintiffs failed to prove their right, title and interest over the suit property.

The Plaintiffs carried appeal against the judgment and decree of the learned trial Court in T.A. No. 53 of 1999. The learned appellate Court dismissed the appeal and confirmed the findings of the learned trial Court although it concluded that the Respondent Nos. 4 and 5 were alive. Being dissatisfied with such judgment and decree of the learned Court below, the Plaintiffs have filed the present Second Appeal.

Initially, at the time of admission, the following substantial questions of law were formulated for consideration.

(i) Whether the plea of res judicata was properly considered by the Courts below?

(ii) Whether setting aside the findings of the learned trial Court on issue Nos. 5 and 6 was illegal and erroneous?

However, at the time of hearing, learned Counsel for the Appellants raised some more questions of law out of which the following substantial questions of law were admitted for consideration.

(I) When in the judgment and decree passed in T.S. No. 54 of 1971 vide Ext. 9 it has been specifically held that the sale by Damodar Sahu in favour of Pravash Chandra Poddar of Berhampur is valid in the eye of law, whether the learned Courts below are justified in arriving at a different finding and whether the judgment and decree passed in T.S. No. 54 of 1971 is binding on the parties and operates as res judicata in the subsequent suit with regard to the sale by the receiver?

(II) In view of the findings of the learned lower appellate Court that Defendant Nos. 4 and 5 were alive at the time of filing of the suit, i.e., T.S. No. 13 of 1985 and had appeared before the Hon''ble High Court in OJC No. 1242 of 1994 and that the decree passed in T.S. No. 135 of 1991 is invalid, whether the learned lower appellate Court is justified in not decreeing the suit in favour of the Plaintiffs basing on the judgment and decree passed in T.S. No. 13 of 1985?

Mr. S.P. Mishra, learned Senior Counsel appearing for the Appellants submitted that the Courts below committed legal error in re-adjudicating the genuineness of the sale of land made by receiver-Damodar Sahoo in favour of P.C. Podar because in an earlier suit bearing T.S. No. 54 of 1971 a competent Civil Court had already ruled that the above noted sale is valid and title of the land passed to P.C. Podar. He stated that the findings and decree of T.S. No. 54 of 1971 operates as res judicata, but violating such res judicata the Courts below re-adjudicated the matter illegally. He cited cases of Pandit Ishwardas Vs. State of Madhya Pradesh and Others, and Saroja Vs. Chinnusamy (Dead) by L.Rs and Another, in this regard. Mr. Mishra also argued that by virtue of decree in T.S. No. 135 of 1991 the decree of T.S. No. 13 of 1985 was held to be a nullity. But after the finding of the learned first appellate Court that Respondent Nos. 4 and 5 were alive, the force of the decree of T.S. No. 135 of 1991 vanishes and the decree of the T.S. No. 13 of 1985 resurfaces and therefore, learned first appellate Court should have decreed the suit in favour of the Plaintiffs. He also argued that after finding that the Defendants made false statement about the death of Respondent Nos. 4 and 5 and obtained the decree in T.S. No. 135 of 1991, learned first appellate Court should have thrown the Defendants from contest in view of the principle laid down by the apex Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, . Mr. Mishra also insisted for reappraisal of the entire evidence on record on the plea that the learned Courts below did not properly appreciate the evidence. In support of this contention he relied on the cases of Hero Vinoth (minor) Vs. Seshammal, and Ramlal and Another Vs. Phagua and Others, to high light that the Court of second appeal can reappraise the evidence on factual aspects to judge the correctness of the findings of the Courts below.

Mr. A.P. Bose, learned Counsel for the Respondent Nos. 2 and 3 supported the judgments of the Courts below and stated that the sale of the suit land by the receiver Damodar Sahoo in favour of P.C. Podar never conveyed any right, title because despite the direction of the Court, Rs. 14,000/- out of the consideration money was never paid/deposited by the purchaser. He stated that when P.C. Podar never acquired valid right, title over the purchased land, he had no saleable right and any sale of that property made by him would be invalid. He further argued that even otherwise, the alleged sale by P.C. Podar in favour of Subhakaran Baradia vide sale deed Ext.10 was invalid for violation of the mandates of Section 32 and 33 of the Registration Act, i.e., the sale deed was executed and presented by N.C. Duduria, who claimed as Power of Attorney holder of P.C. Podar, but did not file the power of attorney documents along with the sale deed. Mr. Bose submitted that the decree passed in T.S. No. 54 of 1971 does not convey and title of the suit land in favour of P.C. Podar or Subhakaran Baradia and did not operate as res judicata as the issues involved in that suit was only about the validity of the permission to sell the suit land by one of the receivers of O.S. No. 23 of 1943. Mr. Bose also submitted that when the Courts below categorically came to a finding that the suit property did not belong to Sahu family and the Plaintiffs failed to prove valid title of P.C. Podar or Subhakaran Baradia over the same, there was no alternative than to dismiss the suit. He strongly argued that the conclusion given by the Courts below are based on evidence and the approach of the Courts are no way perverse and therefore, there is no scope to interfere with the findings on factual issues by this Court of Second Appeal. To support his contention Mr. Bose relied on the cases of State of Bihar Vs. Radha Krishna Singh and Others, , Karunakar Panda Vs. Durgabati Bewa and Others, , Sekar Mudaliar and etc Vs. Shajathi Bi and Another, .

At the out-set, it would be proper to indicate the power of the second appellate Court and the scope of Section 100 Code of Civil Procedure A close reading of Section 100 Code of Civil Procedure shows that a Court of second appeal is not to normally interfere with the concurrent findings of the Courts below on factual issues and that it should only delve into substantial question of law, which is still debatable. However, in exceptional cases a Court of second appeal can interfere with the findings of the Court below on factual issues, if it finds that the Courts below ignored the material evidence or acted on no evidence or drew wrong inference from proved facts by applying law erroneously or wrongfully cast the burden of proof. This view finds support from the observation of the apex Court in the case of Hero Vinoth (supra) and Ram Lal and Anr. (supra) as well as in the case of Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, .

The main thrust of argument of the Appellant is that the validity/genuineness of the sale deeds executed by Damodar Sahoo in favour of P.C. Podar having been finaily decided in the judgment and decree passed in T.S. No. 54 of 1971, it was no more open to adjudication in the subsequent suit under the principles of res judicata and therefore, there was no scope for the Courts below to reopen the issue of passing of consideration, delivery of possession, passing of title in favour of P.C. Podar etc. A careful reading of the provisions of Section 11 of the Code of Civil Procedure would reveal that the following contingencies must be satisfied to constitute res judicata.

(i) There must be two suits-one former suit and the other subsequent suit;

(ii) The Court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits. It is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim;

(vi) The parties in both the suits must have litigated under the same title.

Analyzing the provisions of Section 11, the apex Court in the cases of Ishwardas v. State of Madhya Pradesh (supra) and Saroja v. Chinnusamy (supra) observed that the essential plea of res judicata may be sustained without anything more if the questions at issue and the parties are same subject of course that the other conditions are satisfied. Ext.9 shows that T.S. No. 54 of 1971 was a suit inter se between the receivers and the main issue was whether the order of the Court was legal and one of the receivers, namely, Damodar Sahoo was legally competent to sell part of the suit property. The Court held that sale of part of the suit property by one of the receivers under the direction of the Court is legally permissible and that order permitting Damodar Sahoo to sell the suit property was legally valid. Though there is a remark in the said judgment that the title of the property passed to the purchaser, the said remark cannot be considered as a decree as the issue of passing of title was not involved in that suit. Moreover, the parties of that suit and the present suit were not the same. Fact remains that the Court had directed the receiver Damodar Sahoo to sell part of the suit property and deposit the sale proceeds in the Court. But Damodar Sahoo after executing the sale deed did not deposit the consideration amount of Rs. 14,000/- in the Court. The purchaser also did not deposit the said amount. Passing of title in an immovable property under sale is contingent upon passing of consideration and delivery of possession. Admittedly, Rs. 14,000/- out of the consideration money was not paid by the seller. The Courts below after analyzing the evidence on record, also came to a concurrent finding that due delivery of possession was not given to Sri P.C. Podar. Undersuch circumstances, the decree in T.S. No. 54 of 1971 cannot be accepted as conclusive finding of passing of title in favour of P.C. Podar and cannot operate as res judicata in a subsequent suit where title of P.C. Podar over the suit land was under challenge.

In the present case admittedly Defendant Nos. 4 and 5 filed T.S. No. 13 of 1985 for declaration of their title and confirmation of possession over the suit land and the suit was decreed. Defendant No. 1 filed T.S. No. 135 of 1991 to declare the judgment and decree of T.S. No. 13 of 1985 as a nullity and the said suit was decreed. Because this decree was not challenged by any one, learned trial Court said that this decree is binding and goes against the right, title of the Respondent Nos. 4 and 5 over the suit land. It is now canvassed by the Appellant that after the finding of the learned 1st appellate Court that the Respondents No. 4 and 5 were in fact alive, the judgment and decree of T.S. No. 135 of 1991 loses its force and the decree of T.S. No. 13 of 1985 resurfaces to establish the right, title of Respondent Nos. 4 and 5 over the suit property and also operates as res judicata for which reason the Courts below legally went wrong in giving verdict that the Defendant Nos. 4 and 5 did not acquire any valid title over the suit property. It is manifest from the impugned judgment that the learned 1st appellate Court reversed the finding of the trial Court that the Respondent Nos. 4 and 5 were dead and held that in fact the Respondent Nos. 4 and 5 were alive. So, technically the decree of T.S. No. 135 of 1991, Exts. M, M-1, and M-1 (a lose sanctity even though the said decree was never challenged in any higher forum. Now the question is whether the judgment and decree of T.S No. 13 of 1985 (Exts. 14 and 14/a) legally barred jurisdiction of the Courts below under the principle of res judicata to re-decide right, title of Respondent Nos. 4 and 5 over the suit land. Exts.14 and 14/a show that the suit was inter se between the brothers of Bardia family and in that suit Defendant Nos. 1 to 3 or members of Sahu family were not parties. So that decree cannot be used against the Defendant Nos. 1 to 3 and could not operate as res judicata in the-subsequent suit where Defendant Nos. 1 to 3 challenged the right, title of P.C. Podar and Respondent Nos. 4 and 5. Learned 1st appellate Court therefore rightly observed that the decree of T.S. No. 135 of 1991 does not help the Defendants and the decree of T.S. No. 13 of 1985 also does not benefit the Plaintiffs and that these decrees do not operate as res judicata in the subsequent suit.

It is the allegation of Defendant Nos. 1 and 3 that P.C. Podar never got any right, title over the suit property as he did not deposit the consideration money as directed by the Court and also did not take due delivery of possession of the suit property and therefore, had no sellable right in the property. It is also claimed by the Defendants that the sale transaction allegedly made by P.C. Podar in favour of Subhakaran Baradia is also invalid because the sale deed was not presented by proper person. In answer to this allegation, the Appellants have taken a plea that the judgment and decree in T.S. No. 54 of 1971 the legality of the sale by Damodar Sahoo in favour of P.C. Podar has been held to be valid and therefore, the same question has been set at rest. It is also claimed that the sale deed in favour of Subhakaran Baradia was executed by duly authorized power of attorney of P.C. Podar and therefore, the sale was valid.

Regarding sale in favour of Subhakaran Baradia, the sale deed, Ext.10 was pressed into service. Ext.10 shows that the same was executed by one N.C. Daduria as power of attorney of P.C. Podar. In this document, Ext.10, it has been mentioned that P.C. Podar had not deposited Rs. 14,000/- out of the consideration amount. The power of attorney document or the certified copy thereof was also not filed along with the sale deed. Section 32 of the Registration Act clearly postulates that every document to be registered under the Act whether such document is compulsory or optional shall be presented at the proper registration office.

(a) by some person executing or claiming under the same or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such person, or

(c) by the agent of such person, representative or assign duly authorized by power-of-attomey executed and authenticated in manner hereinafter mentioned.

The provision of this Section also contemplates that representative or assign duly authorized by power of attorney executed and authenticated can present the document for registration. Section 33 prescribed the kind of power of attorney, who can be recognized for the purpose of Section 32 under different circumstances. Sub-section (2) of Section 33 says that in the case of every such power of attorney, Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attomey has been voluntarily executed by the person purporting to be the Principal, may attest the document without requiring the personal attendance of the principal at the office or Court. Section 34 of the Act provides for enquiry by registering officer before registration. In Sub-section 3 it is provided that in case of any person appearing as power of attorney representative or assign or agent, the registering authority must inquire and satisfy himself of the genuineness of the power of attorney document and right of such person so to appear. This provision thus clarifies that whenever a document is presented for registration by the power of attorney, the registering authority would inquire and the person presenting the document must satisfy the registering authority that he has duly authorized the person to present the document and holds a genuine and legal power of attorney. For this purpose, it is essential that the power of attorney document or attested copy thereof must be presented before the registering authority.

Admittedly in the present case, N.C. Daduria did not produce or attach the power of attorney document or copy thereof. The document, Ext.10 does not clearly show that it was presented before the proper Registrar or Sub-Registrar for registration. Section 17 of the Registration Act prescribes that all documents of transfer of immovable property of worth of more than hundred rupees are compulsorily registrable and Section 33 says that such document is to be presented at the proper registration office. Neither P.C. Podar nor N.C. Daduria was examined by the Plaintiffs to prove due execution/production of the document. No explanation was also furnished as to why the document was not proved through these persons. With the above noted technical defects, learned Courts below cannot be blamed for observing that Ext.10 is not a valid document conveying title of the property in favour of Subhakaran Baradia. Such conclusion is also supported by the ratio noted in the case of Sekar Mudaliar and etc. v. Shajathi Bi and Anr. (supra).

Though a question was formulated about the correctness of the finding of learned first appellate Court setting aside the finding of the learned trial Court on issue Nos. 5 and 6, it is seen that both the issues were decided by the first appellate Court in favour of the Appellants and none of the parties has challenged such finding. Therefore, any discussion on these issues is unwarranted.

Learned Counsel for the Appellants argued that the first appellate Court should have thrown the Defendants from contest after finding that they had made false statement about the death of Defendant No�.4 and 5. It appears from the record that intervenor-Defendant No. 6 claimed that his sons, Defendants 4 and 5 died in a road accident and produced the documents and evidence. Defendant Nos. 4 and 5 along with the Plaintiff on the contrary claimed that Defendant No. 6 was already dead and the person claiming as Defendant No. 6 is not a genuine person. Learned trial Court believed that Defendant Nos. 4 and 5 are dead. But learned 1st appellate Court held that the Defendant Nos. 4 and 5 were alive. No doubt this was a contentious issue, but there was no claim or prayer by any of the parties to strike out the defence on the plea that false claim was made by the Defendants. Moreover, the issue regarding death of Defendant Nos. 4 and 5 became academic because both the Courts below on analyzing the evidence found that the suit properties did not form part of the schedule of properties involved in O.S. No. 23 of 1943 and that it is the property of J. Tateya, who gave it to his daughter-in-law Defendant No. 1, who ultimately sold it to Defendant No. 3. Such finding of the Courts below is supported by the material evidence including the document of admission/relinquishment. Such conclusion also cannot be said to be product of no evidence or perverse approach. In such backdrop, the ratio of the case of S.P. Chengalvaraya Naidu (supra) does not apply to the present case.

In view of the foregoing discussions, the substantial questions of law raised by the Appellants are answered in the negative. Consequently, the judgment and decree of the Courts below are confirmed and the appeal is dismissed on contest with cost.