SATYABHAMA SATPATHY Vs. NARANA MISHRA

JUDGEMENT

(1.) THE appellants have filed the aforesaid appeal challenging the judgment dated 5.4.2004 passed in T.A. No. 54 of 1994 by the learned Additional District Judge (FTC), Bhadrak.

(2.) THE facts reveal that the appellants as plaintiffs filed T.S. No. 81 of 1987 -I seeking a decree for declaration, declaring the sale -deed executed by their deceased father (Trilochan Mishra) in favour of the defendant (respondent) to be void on the ground that the said sale -deed has been obtained by exercise of undue influence. The plaintiffs also prayed for a decree for permanent injunction. The case of the plaintiffs is that during the last days of the life of their father Trilochan Mishra, who was ill and under the care and custody of the defendant (respondent), who was none, other than his nephew, the defendant taking advantage of his old age and exercising undue influence, got the disputed sale -deed executed by him when he was in an unconscious state of mind. It was further pleaded by them that their deceased father was never in want of money and, as such, had no legal necessity to sell the suit land. Instead of using the phrase 'undue influence', the plaintiffs mentioned in the plaint that the sale -deed was obtained by practicing fraud. The defendant respondent in his written statement denying the averments made in the plaint specifically contended that the suit is not maintainable.

(3.) THE learned trial court on consideration of the rival pleadings framed as many as ten issues, out of which, issue No. 6 was " is the sale -deed of defendant from Trilochan Mishra valid, genuine, duly executed and registered and for consideration". No specific issue was framed with regard to undue influence or fraud. After trial of the suit, with regard to the aforesaid issue no. 6, the learned trial court found the transaction of sale to have been vitiated with fraud and in reaching such conclusion, the learned trial court placed reliance on the fact of the old age and suffering of late Trilochan Mishra and certain other circumstances. The learned trial court ultimately decreed the suit filed by the appellants -plaintiffs. The defendant respondent challenged the said judgment and decree in T.A. No. 54 of 1994. The learned lower appellate court came to the finding that the case actually involves the issue of undue influence and the word "fraud" has been inappropriately used by the plaintiffs. Finding that no issue of undue influence has been framed by the learned trial court, came to the conclusion that in view of non -framing of such issue, the parties have not led evidence upon the same and the said issue was the crux of the matter. Thus holding, the learned appellate court remanded the case. In the remand order, the learned appellate court held in paragraphs 7, 8 and 9 as follows: -