Gayadhar Mohanty and Another vs Abhimanyu Pattanaik and Others

A.K. Patnaik, J.—This is a second appeal u/s 100 of the Code of Civil Procedure, 1908 (for short, ''the CPC'').

The relevant facts briefly are that respondent Nos. 1 and 2 filed O.S. No. 80 of 1978-1 in the Court of the learned Munsif, Bhadrak for declaration of title, confirmation of possession or in the alternative recovery of possession, and for permanent injunction in respect of the suit land measuring Ac. 0.12 decimals. In the said suit, seven defendants were impleaded and appellant Nos. 1 and 2 were impleaded as defendants 6 and 7. The case of the two plaintiffs in the said suit was that the suit land was originally part of the joint family properties recorded in the name of Madhu Sahu, Agani Sahu, Gangadhar Sahu, Naran Sahu, Dama Sahu and Madan Sahu. Madhu died leaving behind his son Mohan. Gangadhar died leaving behind his son Kabuli. The branches of the aforesaid joint family amicably partitioned the joint family properties and the share of the each branch in the joint family properties was 2 annas and 8 pahi. Thereafter Dama Sahu and Madan Sahu sold part of the suit land which fell to their shares to Rambha Dei by a registered sale deed dated 2.6.1915 for consideration paid by Rambha Dei out of her Stridhan and delivered possession of the suit land to Rambha Dei. By another registered sale deed dated 6.9.1915 other shareholders of Dama and Madan sold their shares of the joint family properties to Laxmimani Dei. Rambha Dei and Laxmimani Dei belong to the family of Kanhei Charan Mohanty alias Patnaik and the family genealogy of Kanhei Charan Mohanty as given in ''Ga'' schedule genealogy of the plaint is as follows :

''Ga'' Schedule Genealogy Kanhei Charan Mohanty '' Patnaik First wife Champa Second wife-menaka Third wife-Rambha | | Mukunda Giridhari Wife Laxmimani | | | Hrudananda | | Kartika Abhimanyu (Plaintiff No. 2) (Plaintiff No. 1)

As per the aforesaid family genealogy of Kanhei Charan Mohanty, Laxmimani was the daughter-in-law of Kanhei Charan Mohanty and Hrudananda was the son of Laxmimani and plaintiff No. 1 was the son of Hrudananda and plaintiff No. 1 has been in possession of the land sold to Laxmimani after the death of Hrudananda. As per the family genealogy of Kanhei Charan Mohanty, Rambha was the third wife of Kanhei Charan Mohanty and Giridhari was the son of Rambha and plaintiff No. 2 was the son of Giridhari and after the death of Giridhari, plaintiff No. 2 has been in possession of the land sold to Rambha. The further case in the plaint is that during the settlement operation in 1930, Kanhei Charan Mohanty was looking after the settlement operation on behalf of the family and although he had no right, title, interest and possession in respect of the aforesaid two pieces of land purchased by Rambha and Laxmimani by sale deeds dated 2.6.1915 and 6.9.1915, he had the said two pieces of land comprising of the suit land recorded in his name. The case of the plaintiffs, however, is that even though the suit land was recorded in the name of Kanhei Charan Mohanty, the plaintiffs continued to be in uninterrupted and peaceful possession of the suit land for more than twelve years. The further case of the plaintiffs in the plaint is that defendant Nos. 1 to 5 all belong to the family of Bhaskar Chandra Mohapatra who was a powerful Jamidar and on 26.3.1978 defendant No. 5 asked the plaintiffs to purchase the suit land failing which he would sell the same to others and on that day the plaintiffs came to learn that the suit properties were recorded in the name of the sons of Bhaskar Chandra Mohapatra, namely, Satya Sundar Mohapatra (defendant No. 5) and Shyam Sundar Mohapatra in the Major settlement in connivance with the settlement authorities and thereafter defendant No. 5 sold the suit property to defendant Nos. 6 and 7 on 25.4.1979.

Defendant Nos. 1 to 5 did not contest the suit but defendant Nos. 6 and 7 contested the suit and filed their written statement. Their case in the written statement was that the suit land stood recorded in the name of Kanhei Charan Mohanty alias Patnaik in the C. S. Record-of -Rights under Khata No. 103 of Mouza - Balimeda with status "Dakhalkar Mutabak". Bhaskar Chandra Mohapatra, ancestor of defendant Nos. 1 to 5, acquired the suit land through a registered sale deed dated 30.7.1931 in the name of his son Shyam Sundar Mohapatra from Gadadhar Patnaik, son of Kanhei Charan Patnaik, and after the death of Bhaskar Chandra Mohapatra, Shyam Sundar Mohapatra and his brother Satya Sundar Mohapatra (defendant No. 5) having half share each in the land acquired by Bhaskar Chandra Mohapatra, became owners in possession of the suit land and their names were accordingly recorded in the Hal Settlement records. After the death of Shyam Sundar Mohapatra, defendant Nos. 1 to 4 are his legal heirs and successors-in-interest. Defendant Nos. 6 and 7 have purchased the suit from defendant No. 5 by registered sale deed dated 21.4.1978 and are in peaceful possession of the suit land.

On the basis of the aforesaid pleadings of the parties, the learned Munsif framed issues and took evidence, both oral and documentary, in the trial and decreed the suit by judgment and decree dated 13th of October, 1981. Aggrieved, the appellants filed Title Appeal No. 30 of 1981-1 in the Court of the learned Subordinate Judge, Bhadrak, but by judgment and decree dated 11.3.1986 the learned Subordinate Judge dismissed the appeal of the appellants on contest and with costs and confirmed the judgment and decree of the learned Munsif. Aggrieved, the appellants have filed this Second Appeal before this Court. On 16.7.1986 this Court framed the following substantial question of law :

"Whether the findings of fact relating to title are vitiated in absence of any finding relating to purchase and possession of the disputed land by Bhuyan Bhaskar Mohapatra and his legal representatives."

The counsel for the parties were heard on 20.3.2003, 24.4.2003 and 1.5.2003 on the aforesaid substantial question of law.

At the hearing, Mr. R.K. Nayak, learned counsel for the appellants submitted that the suit land stood recorded in the name of Kanhei Charan Mohanty in the record-of-rights published in the Settlement in the year 1931 and after the death of Kanhei, his son Gadadhar acquired title to the suit land and by registered lease deed Ext. E executed on 30.7.1981 Gadadhar transferred the suit land in favour of Bhuyan Bhaskar Chandra Mohapatra and after the death of Bhaskar Chandra Mohapatra, his two sons Shyam Sundar and Satya Sundar acquired title to the suit land and by registered sale deed in Ext. A executed in the year 1978 Satya Sundar transferred his half share to the appellants. He also submitted that in O.S. No. 92 of 1971 which was a partition suit relating to the properties of the family of the plaintiffs, the suit property was not included in the family properties of the plaintiffs. Mr. Nayak vehemently submitted that all these developments which have taken place regarding title and possession over the suit land from 1931 to 1978 have been brushed aside by both the trial Court and the first appellate Court. Mr. Nayak argued that both the Courts below have not considered the registered lease deed Ext. E, Tenant''s Ledger of mouza Balimed Ext. F, certified copy of M. S. Khatian of mouza Balimed pertaining to Khata No. 474 in Ext. B and certified copy of M.S. Khatian of mouza Balimed pertaining to Khata No. 474 in Ext. 4 all of which go to show that Kanhei and thereafter his son Gadadhar and thereafter the family of Bhaskar Chandra Mohapatra were the owners in possession of the suit land even though the sale deeds Exts. 1 and 2 of the year 1915 had been executed in favour of Rambha and Laxmimani. Mr. Nayak argued that it was difficult to prove the benami character of the aforesaid two sale deeds in Exts. 1 and 2 and establish that the real purchaser in the said sale deeds was Kanhei and not Rambha an Laxmimani because the said two transactions were of the year 1915 and it is difficult to get evidence of witnesses of such transactions of the year 1915. Mr. Nayak cited a decision of the Supreme Court in Jagdish Singh Vs. Natthu Singh, wherein it has been held that the High Court in a second appeal is not precluded from recording proper findings of fact if it finds that the findings of fact are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter. He also relied on a decision of the Supreme Court in Ishwar Dass Jain (Dead) Thr. Lrs. Vs. Sohan Lal (Dead) By Lrs., for the proposition that the High Court in a second appeal can interfere with the finding of fact in exceptional cases.

Mr. P. Kar, learned counsel for respondents 1 and 2 on the other hand, submitted that the concurrent findings of fact of the trial Court and the first appellate Court are that Rambha and Laxmimani purchased the suit property in 1915 under Exts. 1 and 2 out of their Stridhan and defendants 6 and 7 have not been able to plead and prove that the said purchases by Rambha and Laxmimani were benami and the actual purchaser was Kanhei Charan Mohanty. Mr. Kar cited a decision of this Court in Smt. Manohari Devi and Others Vs. Choudhury Sibanava Das and Others, in which a Division Bench has held that the presumption that the properties standing in the name of an individual member of a joint family is acquired out of the family funds and thus forms part of the joint family properties does not apply were the properties acquired in the names of female members and where the properties stand in the names of female members, it is for the party who claims properties as joint family properties to specifically plead the particulars and details in the pleadings and establish the same by adducing necessary evidence. According to Mr. Kar, the said decision squarely applies to the facts of the present case as in the present case the suit properties were acquired under Exts. 1 and 2 by Rambha and Laxmimani out of their Stridhan as has been found by both the trial Court and the first appellate Court and hence Kanhei and after him Gadadhar had no title to transfer the suit properties to the family of Bhaskar Chandra Mohapatra and consequently the son of Bhaskar Chandra Mohapatra, namely, Satya Sundar Mohapatra ''(defendant No. 5) had no title to pass to the appellants (defendants 6 and 7) under the registered sale dated 21.4.1978 in Ext. A. Mr. Kar also cited a decision of this Court in Dwarika Prasad Sahu v. Munilal Sahu and Ors. 40 (1974) CLT 818, for the proposition that where a plea of benami transaction is raised, the ostensible title cannot be displaced except on cogent and clear proof of the benami character of the impugned transaction and onus of establishing a transaction to be benami lies on the party contesting the ostensible title. Mr. Kar further submitted that both the trial Court and the appellate Court have held that the plaintiffs are in possession of the suit land on the basis of the evidence of the P.Ws. and both the Courts have discarded the evidence of the D.Ws. on possession saying that they do not have any knowledge of the suit land. According to Mr. Kar, these concurrent findings of fact of the trial Court and the first appellate Court cannot be disturbed by the High Court in a second appeal u/s 100 of the CPC as a second appeal u/s 100 of the CPC is confined only to the substantial question of law.

The only substantial question of law which arises for decision , in this second appeal is whether the findings of fact relating to title of the trial Court and the first appellate Court are vitiated in absence of any finding relating to purchase and possession of the disputed land by Bhuyan Bhaskar Mohapatra and his legal representatives. On a perusal, of the judgment and decree dated 30th of October, 1 981 of the learned Munsif, I find that the learned Munsif has found that the suit land has been purchased under two sale deeds dated 2.6.1915 and 6.9.1915 under Exts. 1 and 2 by Rambha, the first wife of Kanhei Charan Mohanty and by Laxmimani, the daughter-in-law of Kanhei Charan Mohanty out of their Stridhan. The learned Munsif also held that since the case of the defendants 6 and 7 was that Kanhei purchased the suit land benami in the names of Rambha and Laxmimani, burden is on defendants 6 and 7 to prove the said benami character of the transaction, but defendants 6 and 7 have not led any evidence to prove the said benami character of the transaction. Hence, by the registered sale deeds Exts. 1 and 2 executed in the year 1915, Rambha and Laxmimani have purchased the suit land and have acquired title to the suit land and Kanhei had no title to the suit land. The learned Munsif further held that as per the genealogy of the family of Kanhei, Gadadhar is the son of Kanhei and as Kanhei had no title to the suit land, Gadadhar had also no title to transfer the suit land to Bhaskar Chandra Mohapatra by the lease dated 30.7.1981 Ext. E to Bhaskar Chandra Mohapatra and therefore the M. S. entry Ext. B in the names of the sons of Bhaskar Chandra Mohapatra - Shyam Sundar Mohapatra and Satya Sundar Mohapatra - was not correct. The learned Munsif held that as Shyam Sundar Mohapatra and Satya Sundar Mohapatra did not acquire any title to the suit land under Ext. E, Satya Sundar Mohapatra (defendant No. 5) could not have passed title to defendants 6 and 7 under registered sale deed dated 21.4.1978 in Ext. A and defendants 6 and 7 therefore did not acquire any title over the suit land under the aforesaid invalid registered sale deed dated 21.4.1978 in Ext. A. Regarding the possession over the suit land, learned Munsif disbelieved the three witnesses D.W. 2 to D.W. 4 produced by defendants 6 and 7 and accepted the evidence of P.Ws. 2 to 4 produced by the plaintiffs and held that the plaintiffs are in possession of the suit land. By the said judgment and decree dated 31.10.1981 the learned Munsif decreed the suit ex parte against defendants 1 to 5 and on contest against defendants 6 and 7 and declared that the defendants 6 and 7 have no right and title over the suit land and that the M. S. entry in respect of the suit land was wrong and cannot affect the plaintiffs'' title and possession over the suit land. By the said judgment and decree the learned Munsif also permanently injuncted the defendants from interfering with the plaintiffs'' title and possession over the suit land. Similarly, the learned subordinate Judge in Title Appeal No. 30 of 1981 -1 confirmed the finding of the learned Munsif that the suit land had been purchased under sale deeds in Exts. 1 and 2 in the year 1915 by Rambha and Laxmimani from their Stridhan and that the purchases were not benami and therefore Kanhei had no title over the suit property. The learned Subordinate Judge further held that the settlement record-of-rights in respect of the suit land were prepared out of a wrong, notion that Kanhei was possessing the suit land although he did not purchase the same and the said settlement entries can neither create nor extinguish any title but only raise a presumption which can be rebutted by evidence led in the suit from which it is established that Rambha and Laxmimani had actually title to the suit land. The learned Subordinate Judge consequently held that for want of title Kanhei could not have conveyed title through his son to Shyam Sundar and Satya Sundar. Regarding possession over the suit land the learned Subordinate Judge also agreed with the finding of the learned Munsif that the evidence of the P.Ws is to be preferred than that of the D.Ws. who have practically no knowledge and idea regarding the identity of the suit land and concurred with the finding of the learned Munsif that the plaintiffs have proved their possession over the suit land.

The aforesaid discussion would show that both the trial Court and the first appellate Court have considered the evidence on behalf of the appellants (defendants 6 and 7) that the suit land stood recorded in the name of Kanhei Charan Mohanty in the record-of-right and thereafter in the name of the two sons of Bhaskar Chandra Mohapatra, namely, Shyam Sundar Mohapatra and Satya Sundar Mohapatra and have held that such entries in the Settlement Records only raise a presumption which can be rebutted by evidence led in the suit and the evidence clearly shows that the suit properties were purchased not by Kanhei but by Rambha and Laxmimani by registered sale deed Exts. 1 and 2 in the year 1915 out of their Stridhan and hence Kanhei and after his death, the son of Kanhei had no title to the suit land to transfer to Bhaskar Chandra Mohapatra through the registered lease deed dated 30,7.1981 in Ext. E. Further, both the trial Court and the first appellate Court have discarded the evidence of D. Ws 2 to 4 produced by the appellants (defendants 6 and 7) and accepted the evidence of P.Ws 2 to 4 produced by respondents 1 and 2 (plaintiffs 1 and 2) and recorded a finding that the plaintiffs are in possession of the suit land. This is therefore a case where both the trial Court and the first appellate Court have considered the entire evidence adduced by the appellants (defendants 6 and 7) both oral and documentary and have come to a finding that it is the two plaintiffs and not the two defendants who have title to the suit properties and are also in possession of the same. These concurrent findings of fact on the basis of evidence led by the parties cannot be disturbed by the High Court in a second appeal u/s 100 of the CPC which is confined only to a substantial question of law.

The decision of the Supreme Court in Jagdish Singh v. Natthu Singh (supra) cited by Mr. Nayak does not apply to the facts of the present case as the aforesaid findings of the trial Court and the first appellate Court are not vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter. Both the trial Court and the first appellate Court have considered the evidence led by the plaintiffs that the suit lands were purchased by registered sale deeds Exts. 1 and 2 in the year 1915 by Rambha and Laxmimani and found that title of the plaintiffs to the suit land flowed from Rambha and Laxmimani. Both the trial Court and the first appellate Court have considered the evidence led on behalf of defendants 6 and 7 that the suit land stood recorded in the name of Kanhei in the Settlement Records and thereafter the suit lands were transferred to Bhaskar Chandra Mohapatra by the registered lease deed dated 30.7.1981 under Ext. E and the suit lands were recorded in the names of the two sons of Bhaskar Chandra Mohapatra - Shyam Sundar Mohapatra and Satya Sundar Mohapatra in the Major Settlement entry (Ext. B), but both the trial Court and the first appellate Court have held that Kanhei had not acquired any title to the suit properties and instead, Rambha and Laxmimani had acquired title to the suit lands through the registered sale deeds in Exts. 1 and 2 and that defendants 6 and 7 have not been able to show by evidence that the said purchases under Exts. 1 and 2 were made by Kanhei in the name of Rambha and Laxmimani and therefore those were benami purchases. Both the trial Court and the first appellate Court have therefore held that Kanhei and after his death, his son Gadadhar had no title to transfer the suit lands under Ext. E to Bhaskar Chandra Mohapatra and after him, Satya Sundar Mohapatra had no title to transfer the same under Ext. A to defendants 6 and 7. Both the trial Court and the first appellate Court have also found that although the lands stood recorded in the name of Kanhei and thereafter Shyam Sundar Mohapatra and Satya Sundar Mohapatra in the Settlement Records, the settlement entries have only presumptive value and the presumption raised by the settlement entries have been dislodged by evidence of title and possession in favour of the plaintiffs. The approach of the trial Court and the first appellate Court cannot therefore be said to be an erroneous approach so as to call for an interference by this Court in a second appeal u/s 100 of the CPC.

In Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by L.Rs. (supra) cited by Mr. Nayak, the Supreme Court, while considering the scope of interference in findings of facts by the High Court in a second appeal u/s 100 of the CPC after the 1976 amendment, has held :

"11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion.......

The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible...."

Thus, as per the aforesaid decision of the Supreme Court, only in two situations the High Court in a second appeal u/s 100 of the CPC after 1976 amendment can interfere with the findings of fact : first, when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion and second, where a finding has been arrived at by placing reliance on inadmissible evidence which, if it is omitted, an opposite conclusion can be possible. In this case, the aforesaid discussion of the findings of fact of the trial Court and the first appellate Court relating to title and possession in favour of the plaintiffs would show that material or relevant evidence have been considered and no inadmissible evidence has been relied on and thus this Court cannot interfere with the concurrent findings of fact on title and possession in favour of the plaintiffs in a second appeal u/s 100 of the CPC as amended by the 1976 amendment.

For the aforesaid reasons, I do not find any merit in this second appeal and accordingly dismiss the same, Considering however the peculiar facts of the case, the parties shall bear their own costs.