SRI GOPINATH DEB Vs. JAGANNATH BARAL

JUDGEMENT

(1.) HARI Baral had three sons, Pira, Madhab and Luxman. Plaintiffs 1, 2 and 3 are the sons of Pira, Madhab and Luxman respectively. Plaintiffs 2 and 3 are natural born sons of plaintiff 1 (sic ). The suit was for declaration of title, confirmation of possession, or, in the alternative, for recovery of possession on the following averments; Pira, Madhab and Luxman were members of an undivided joint family and so also the plaintiffs. The suit land appertains to Khata No. 271 of village billipada and is their ancestral property. The three brothers were in joint possession as members of the undivided family. In 1953 the defendants threatened to forcibly cut and remove paddy from the disputed land raised by the plaintiffs. On an inquiry into the matter, the plaintiffs came to learn that Luxman had executed a registered sale deed (Ex. E) in respect of the suit property in favour of one Hari Das of Kundheibentasai, Puri town, on 8-8-32, and that one panchu Das, describing himself as the son of Hari Das, executed another sale deed (Ex. D) in respect of the very property to defendant 1 on 10-11-53. Both the registered documents were colourable and fraudulent transactions without receipt of consideration and were not for legal necessity. All through the property was in possession of Pira, Madhab and Luxman. The last two brothers died in 1944. The sale deed executed by Luxman in respect of the joint family property without the consent of other coparceners, cannot convey any title to the vendee. Defendant-1 is the deity Sri Gopinath Deb. Defendants 2 to 4 are the Marfatdars of the deity. Ex. D has been purchased in the name of the deity through the marfatdars defendants-2 to 4. The defence case is that Pira, Madhab and Luxman separated in mess in or about 1930. There was severance of joint status though there was no partition by metes and bounds. The three brothers, however, continued to cultivate their lands jointly and enjoyed the usufructs by dividing the same fin three equal shares. Luxman sold Hie suit land under Ex. E to meet certain necessities of his own. Similarly Ex. D was for consideration. Hari Das remained in possession of the land, got Ms name mutated in the landlord's sherista and cultivated the land through bhag tenants. After Ms death, his widow Chandramani and son Panchu Das remained in possession as owners. After the death of chandramani. Panchu sold the disputed property to defendant 1 for a consideration of Rs. 375. Defendants 2 to 4 are in possession of the disputed land on behalf of the deity. The trial Court dismissed the suit holding that Luxman was separate from his brothers and that he validly transferred the suit property. It, however, found that the plaintiffs failed to prove that they were in possession. In appeal, the lower appellate court reversed both the findings and decreed the suit. Defendants have filed the second appeal.

(2.) BEFORE going into the question of title and possession on merit, it would be necessary to state certain facts regarding abatement of the first appeal and the second appeal. The suit was dismissed on 11-8-62. Title Appeal before the District judge was filed on 26-9-62. Bholi Baral (defendant 3) died on 8-12-62 and his heirs were not substituted. The appeal was allowed on 8-2-64. Adhikari Baral (defendant 2) died on 7-3-64. Defendants filed the second appeal on 7-7-64 impleading all the four sons of Adhikari as legal representatives on filing an application, under Chapter VI. Rule 3 of the Orissa High Court Rules. Admittedly adhikari had two married daughters who were not impleaded as appellants in the second appeal. Defendants took a ground in the second appeal that plaintiff's appeal abated in the lower appellate Court for not substituting the legal representatives of Bholi Baral. Plaintiffs-respondents have filed an affidavit on 262-65 stating that the two daughters of Adhikari Baral had not been substituted and that the second appeal had abated. On 15-3-65 the defendants-appellants filed a rejoinder on affidavit stating that the two daughters were married away and were not residents of the village and not marfatdars of the deity (defendant-1 ). Thus plaintiffs contend that the second appeal has abated while the defendants contend that the appeal before the first appellate Court had abated. In course of argument the learned advocates for both parties stated that there was no abatement of the first appeal or of the second appeal due to non-inclusion of some of the trustees as heirs when the deity was represented by the other trustees. Both of them did not press the question of abatement. In view of the fact that the learned advocates themselves do not press the question of abatement, either of the first appeal or of the second appeal, I do not express any view on the question of abatement. The appeal must accordingly be disposed of on the footing that there was abatement neither of the first appeal nor of the second appeal and this conclusion is reached not by expression of any view on the question of law arising in the facts and circumstances of this case.

(3.) THE question for consideration in this appeal is whether the plaintiffs have title to the disputed land and possession within 12 years of the suit. The title of Haridas on the strength of Ex. E has been questioned on the only ground that at the time of transfer, Pira, Madhab and Luxman were members of an undivided joint family and Luxman had no right of transfer without the consent of the other coparceners. The finding of the lower appellate Court that there was no severance of joint status amongst the three brothers is a pure finding of fact not assailable in second appeal. This finding is based on the evidence of P. W. 1 (Plaintiff-1), P. W. 2 (widow of Luxman) and P. W. 3 fan outsider ). D. Ws. 1 to 3 are utter strangers to the family of the plaintiffs and have no idea whether Pira, Madhab and Luxman were joint or separate. Mr. Pal assails this finding of fact mainly on the basis of Ex. C dated 15-4-36, a deposition of Madhab in Cr. Case No. 6 of 1936 in which he was the complainant As would appear from the judgment (Ex. B) in that criminal case, the accused were bhag tenants of Haridas and trespassed into the land in possession of Madhab. They cut away paddy grown by the complainant from the southern portion of plot No. 1574. It would appear from the plaint schedule that a portion of plot No. 1574 is the suit land. In Ex. C Madhab stated thus-"myself and Jagannath live joint and Luxman lives separate. " on the basis of this statement Mr. Pal contends that there was severance of joint status in the family and the learned Sub-Judge haying failed to consider the bearing of this document, his finding is contrary to law and is not binding on this court in second appeal This contention raises the questions whether Ex. C is admissible in evidence, and, if so, what is its probative value.