Nirupama Pratihari vs Nabaram Pradhan

Krushna Ram Mohapatra, J—Legality and propriety of judgment and decree dated 21.03.2001 and 01.09.2001 passed by the learned Civil Judge (Senior Division), Puri in T.S. No. 337 of 1997 is under challenge in these Appeals.

The present appellant as plaintiff filed suit for a decree of specific performance of contract and in the alternative he prayed for receiving the advance consideration amount. The relevant pleadings for adjudication of this Appeal as revealed from the plaint is that the defendant was the owner in possession of the suit property; but the same stood recorded in the name of the Government. On the strength of a lease deed dated 01.10.1992 executed by the defendant the husband of the plaintiff was in possession over the suit property. In the month of December, 1993, the defendant being in need of money approached the plaintiff to purchase the case land for a consideration of Rs. 2,00,000/-. In order to show his bona fide, the defendant gave photocopy of sale deed dated 11.04.1977 to the plaintiff to establish her title over the suit land. But he could not produce the ROR in respect of the same. The defendant gave impression that he would correct the erroneous entry in the ROR and execute the Registered Sale Deed in favour of the plaintiff within two years. On a bona fide belief that the defendant had title over the suit property, she agreed to the proposal and paid a sum of Rs. 1,00,000/- in advance towards consideration amount for purchase of the suit land and executed an agreement to that effect and delivered vacant possession of the land to the plaintiff. In the said agreement, it was agreed between them that the defendant would execute the sale deed upon receipt of balance consideration of Rs. 1,00,000/- within two years from the date of correction of the ROR. To show her readiness, the plaintiff on several occasions approached the defendant to execute the sale deed on payment of the balance consideration amount, but the defendant avoided the same on some plea or the other. Two years after execution of the agreement, the plaintiff and her husband in order to ascertain the correct position enquired the matter before the Settlement Authority and came to know that no such proceeding was initiated by the defendant for correction of ROR. The plaintiff was always ready and willing to perform her part of the contract to purchase the suit land on payment of balance consideration amount of Rs. 1,00,000/- and the defendant defaulted to respond such request of the plaintiff. Thus, the suit was filed for the aforesaid relief.

The defendant filed his written statement along with a counter claim challenging the maintainability of the suit. He contended that the plaintiff had no cause of action to file the suit. The defendant categorically stated in his written statement and counter claim that his father had purchased the suit land and there were Mango, Coconut Cashew nut, Pulanga and Casuarina trees standing over the suit land. The husband of the plaintiff had taken the suit land on lease on a monthly rate of Rs. 1,500/- for a period of five years. However, he surrendered the suit land to the defendant three months after commencement of the lease and handed over possession to the defendant. While the matter stood thus, one Rabinarayan Das of Kacheri Road, Puri handed over some documents to the defendant which revealed that the husband of the plaintiff had fabricated another document written by one Lingaraj Mishra, a licensed Mohararir of Advocate Sri K.M. Acharya and on the basis of such forged document, the husband of the plaintiff through his Advocate had sent one registered notice on 28.10.1994 to the defendant asking him to execute the sale deed upon receipt of the balance consideration amount of Rs. 1,60,000/- though the defendant had not executed any such agreement and the signature of the defendant on that agreement was forged. In fact, no such pleader''s notice as stated above was received by the defendant. It was the further case of the defendant that the husband of the plaintiff who had the intention to grab the suit property might have forged the agreement dated 31.12.1993 and prepared the same in the name of his wife to grab the suit property and also to get exemption from payment of court fee in filing the frivolous suit for specific performance of contract. After filing of the suit, the husband of the plaintiff started interfering with the peaceful possession of the defendant over the suit land and cut away 30 Casuarina trees, Mango trees and 3 Pulanga tree and 5 Coconut trees. As such, the defendant had sustained the loss of more than Rs. 1,00,000/-. The defendant further contended that one Dambarudhara Bastia, one of the witnesses named in the suit agreement was in jail custody from 02.07.1993 to 31.08.1994. His signature was obtained on the forged deed of agreement after he was released from jail custody. During pendency of the suit, the plaintiff interfered with the possession of the defendant through her husband. Thus, the defendant prayed for a decree of permanent injunction against the plaintiff in his counter claim restraining her from changing the nature and character of the suit land and also from cutting away trees standing over the suit land. Alternatively the defendant prayed for recovery of possession if during pendency of the suit he was found to have been dispossessed.

The plaintiff filed written statement to the counter-claim of the defendant stating that the counter claim was not maintainable. She specifically pleaded that her husband took the suit house on lease with effect from 01.10.1992 and was paying rent of Rs. 1,500/- per month. During continuance of the tenancy, the defendant asked for a sum of Rs. 50,000/- to meet his urgent need. In the month of June, 1993, plaintiff''s husband gave Rs. 40,000/- to him and to avoid rigors of the provisions of Orissa Money Launders Act an agreement for sale of the suit land was executed by the defendant on 05.06.1993 and it was mutually decided between them that the defendant would repay the money within one month, or else, it would be adjusted towards the rent. But in fact, the plaintiff''s husband had no intention to purchase the land though he was continuing with possession as a monthly tenant. The plaintiff continued to stay with her husband over the suit land after her marriage. The marriage of the plaintiff was solemnized in the year 1993. After her marriage, when she was staying with her husband, the defendant wanted to sell away the property to the plaintiff and executed the agreement dated 31.12.1993 as aforesaid. The plaintiff further contended that the defendant had to repay loan of Rs. 40,000/- within the stipulated period, but he failed to keep his promise. Thus, her husband was constrained to send a pleader''s notice to the defendant which was returned back unserved. However, after repeated demands, the defendant repaid the loan and her husband returned the agreement back as well as the pleader''s notice to the defendant. It was the specific plea of the plaintiff that her husband was in possession over the suit land and was carrying on his business thereon. Thus she prayed for dismissal of the counter claim.

Taking into consideration the rival pleadings of the parties, learned Civil Judge framed as many as seven issues; however Mr. Mohanty learned counsel for the appellant contended that issue Nos. 4 and 5 are relevant for the purpose of consideration of the case and all other issues are consequential to the findings to be rendered in issue Nos. 4 and 5. Since issue Nos. 4 and 5 are relevant for consideration these are reproduced herein.

"4. Is the suit barred by time?

Has the defendant received any amount under the suit agreement?"

Learned Civil Judge, on consideration of the materials including oral as well as documentary evidence adduced/produced and rival pleadings of the parties came to a conclusion that the suit agreement dated 31.12.1993 was not executed by the defendant and it was forged and fabricated one. It was also held that the defendant had not received the amount of Rs. 1,00,000/- under the said agreement as claimed by the plaintiff. Thus, basing upon the findings in issue Nos. 4 and 5 all other issues were answered against the plaintiff and while answering issue No. 7, which relates to the counter claim, learned Civil Judge held that the defendant was entitled to the relief of injunction as prayed for.

Assailing the findings of issue No. 7 allowing the counter claim of the defendant, the plaintiff preferred T.A. No. 80 of 2001 before the learned District Judge, Puri as the counter-claim was valued at Rs. 100/-. During pendency of this instant appeal before this Court, the plaintiff/appellant filed Misc. Case No. 830 of 2001 for transfer of the Title Appeal No. 80 of 2001 from the Court of learned District Judge, Puri to this Court for analogous hearing of both the Appeals as both the appeals arise out of the same judgment and decree. By order dated 22.11.2014, this Court called for the records of T.A. No. 80 of 2001. Since both the appeals arise out of the same judgment and decree, the same are taken up for analogous hearing and final disposal.

Mr. Mohanty, learned counsel for the plaintiff/appellant strenuously urged that learned Civil Judge has not assessed the evidence on record from its proper perspective. He was swayed away taking into consideration some trivial discrepancies in the case of the plaintiff. In support of his case, he contended that the learned Civil Judge ought to have relied upon the invitation card produced by the plaintiff marked as Ext. 4 to prove that the marriage of the plaintiff was solemnized on 1st July, 1993. According to him, learned Trial Court did not place reliance on Ext. 4 on the plea that the programme of the marriage as mentioned in the bottom of the invitation card reflected that Mangalkrutya of the plaintiff''s marriage was held on 31.06.1993 and month of June does not have 31st day. He further submitted that invitation card exhibited/produced by the defendant, which relates to marriage of the plaintiff, should not have been relied upon which reflects that the marriage of the plaintiff was solemnized on 25th June, 1995. Mr. Mohanty, further submitted that the date of marriage of the plaintiff is vital to consider the correctness of the findings in issue No. 4 as in the suit agreement, i.e., Ext. 2, the plaintiff is described to be wife of one Narayana Pratihari, who is PW-1 in the suit. To test the veracity of the contention of Mr. Mohanty, the oral evidence of the parties have to be scrutinized. PW-2 in his cross-examination has categorically admitted that Ext-A is the invitation card of the marriage of Narayana Pratihari with the plaintiff distributed by the father of PW-1 and he was invited to the marriage. To add to it, the invitation card produced by plaintiff (Ext. 4) cannot be believed for the reason that month of June does not have the 31st day and the witnesses of the plaintiff, more particularly, PW-1, the husband of the plaintiff, does not depose the same to be a typographical/printing mistake in the invitation card. The plaintiff, who is a vital witness to the suit, was kept out of witness box and no explanation for her non-examination is given either by PW-1 or other witnesses examined on her behalf. Thus, adverse inference should be drawn for non-examination of the plaintiff. When PW-2, a witness examined on behalf of the plaintiff, categorically admits the date of marriage of the plaintiff to be 25th June, 1995, it cannot be held that marriage of the plaintiff was solemnized on 1st July, 1993, as alleged by her. Moreover, the plaintiff herself does not come forward to disclose the date of her marriage which is fatal to her case. Thus, the learned Civil Judge has rightly held that the plaintiff has not married on the alleged date of execution of the suit agreement, i.e., 31.12.1993. Mr. Mohanty, further contended that learned Trial Court ought to have believed that Dambarudhara Bastia had signed the suit agreement on the date of execution of the agreement, i.e., on 31.12.1993, more particularly when Dambarudhara Bastia who was examined as DW-3 himself admits and identifies his signature on Ext. 3. Learned Trial Court disbelieved such contention of the plaintiff on the plea that Dambarudhara Bastia was in jail custody at the relevant point of time. As it appears, said Dambarudhara Bastia was examined as DW-3. Ext. 2, the suit agreement bears the signature of Dambarudhar Basita as a witness on the said agreement which is marked as Ext. 2/C. Said Dambarudhara Bastia was described to be the native of village Nuagaon under Ranpur PS in the district of Puri in the suit agreement. But in his evidence, DW-3 categorically stated that he does not belong to the said village and on the other hand he belongs to village Bedarpada under Chandanpur PS in the district of Puri. The voter list of Nuagaon under Ranpur PS for the relevant period was produced and marked as Ext. F. It does not reflect the name of said Dambarudhara Bastia. However, Mr. Mohanty, drew attention of this Court to the death certificate of one Dambarudhara Bastia being marked as Ext. 3 showing that he was a permanent resident of Rajaranpur, Nuagaon and died on 14.11.2000. But, PW-1, the husband of the plaintiff, who produced Ext. 3, the death certificate of said Dambarudhara Bastia, candidly admits in his evidence that he does not know the permanent address of said Dambarudhara Bastia. He had heard about him from PW-2. Evidence of PW-2 does not corroborate the statement of PW-1. DW-3-Dambarudhara Bastia categorically admits in his evidence that he was in jail custody from 1992 to 1994 and was in Puri jail for a period of 13 months. He further admits that he knew Narayana Pratihari, the husband of the plaintiff. He was dealing with cement fabrication work at Lokanath Road, Puri and he was working under him. He further stated that Narayana (PW-1) had taken his signature marked as Ext. 2/C on plain paper to obtain a loan from the Bank. He also stated that one Rabi Maharana of Gobindpur had also signed along with him and he identified the said signature to be Ext. 2/G. His statement gets corroboration from Ext. H, i.e., entries of register of 2nd Additional Sessions Judge, Puri in Sessions case. It discloses that DW-3 was arrested on 15.07.1993 and was released on 31.08.1994 covering the period of execution of the agreement. Thus, by no stretch of imagination, it can be said that DW-3 had signed the suit agreement dated 31.12.1993 on the date of execution. From the above, it can be reasonably inferred that either signed paper of DW-3 was utilized to prepare the suit agreement or his signature on the same was taken subsequently. Thus, the only conclusion which can be drawn from the above is that the suit agreement was fabricated for the purpose of defrauding the defendant.

There are other circumstances to establish that the suit agreement dated 31.13.1993 was a forged one. Those need not be discussed as two of the vital discrepancies, which were alleged to have been not considered by the learned Trial Court properly, appear to be false. Mr. Mohanty, further submitted that defendant who was examined as DW-5 in his statement disbelieved his signature at the last page of the written statement. Thus, the written statement along with the counter claim of the defendant should not have been accepted and the plaintiff''s suit ought to have been decreed on that score alone on the basis of the principles of non traverse. In support of his contention, he drew attention of this Court to the last line of paragraph-6 of the deposition of the defendant. It discloses that when attention of the witnesses was drawn to the written statement filed by him on 06.08.1999, he admitted his signature on first two pages of the written statement, but denied his signature on the last two pages of his written statement. Hence, relying upon the decision in the case of K.S. Satyanarayana Vs. V.R. Narayana Rao, AIR 1999 SC 2544 : (1999) 5 JT 127 : (1999) 123 PLR 297 : (1999) 4 SCALE 286 : (1999) 6 SCC 104 : (1999) 3 SCR 1213 : (1999) AIRSCW 2711 : (1999) 6 Supreme 227 , he submitted that the defendant having disowned his signature in the written statement, his written statement should not have been accepted at all.

On perusal of paragraph 6 of the cross-examination of DW-5 it is not clear as to what was the occasion or context for which the written statement filed by him was shown to the witness. Moreover, the plaintiff does not dispute the written statement filed by the defendant in the suit. Hence, such a denial of his signature in last two pages of the written statement appears insignificant.

Title Appeal No. 80 of 2001 relates to a finding on issue No. 7 granting relief of injunction in favour of the defendant. Mr. Mohanty, learned counsel for the appellant submitted that the plaintiff was in possession over the suit land by virtue of the suit agreement (Ext. 2) and thus, the plaintiff could not have been granted the relief of injunction without seeking for a relief of recovery of possession. He further submitted that the husband of the plaintiff was a tenant under the defendant on a monthly rent of Rs. 1,500/- and while continuing as such, the suit agreement under Ext. 2 was executed. Thus, the plaintiff was all along in possession over the suit land from the date of execution of the suit agreement.

In view of the discussions made above, Issue Nos. 4 and 5 has already been answered by this Court holding that the suit agreement was forged and fabricated one and the defendant had not received any amount under the suit agreement. In view of such finding, it cannot be held that the plaintiff possessed the suit land pursuant to the agreement under Ext. 2, more particularly, when the plaintiff has withheld herself from the witness box to establish her case. Thus, in view of the discussions made above, the case of the plaintiff to the effect that she possessed the suit land pursuant to the suit agreement under Ext. 2 cannot be believed. In a decision in the case of Bhagbat Sahu Vs. Kirtan Sahu and Others, (1975) 41 CLT 736 , this Court held that when evidence of possession of either side is equally poised inference of possession can be drawn in favour of the person, who has the title over the suit land. In the instant appeal, it has already been held that the plaintiff has no right, title or interest over the suit land and the defendant is the rightful owner in respect of the same. In view of the above, the legal inference can be drawn that the defendant is in possession over the suit land. In this view of the matter, Title Appeal No. 80 of 2001 fails.

In that view of the matter, all the contentions raised by Mr. Mohanty, learned counsel for the plaintiff/appellant merit no consideration. Hence, both the appeals, i.e., F.A. No. 220 of 2001 along with T.A. No. 80 of 2001 are dismissed accordingly and in the circumstances with costs.