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1958 DIGILAW 71 (ORI)

JAYA KRUSHNA SAHU v. SRI PARAMESWAR SAHU

1958-07-24

MOHAPATRA

body1958
JUDGMENT : Mohapatra, J. - This is a Plaintiffs' second appeal against the confirming judgment of the lower appellate court arising out of a suit for partition. The two sets of Plaintiffs ( Plaintiffs 1 and 2 and Plaintiffs 3 and 4) claim different shares In respect of the properties described in schedules Ka and Kha of the plaint. The Plaintiffs also claim land on the basis of an alleged exchange. The main defence Is that the suit is not maintainable as there was a completed partition by metes and bounds between the parties and the parties are in separate possession in accordance with the previous partition. The Defendants have also taken up the plea of limitation. 2. The courts below have concurrently found that the Plaintiffs' suit mu t (ail as there was a completed partition by metes and bounds and the parties are in separate possession in accordance with the previous partition. The lower appellate court has also dismissed the suit In respect of certain items of property on the ground of limitation. It is to be mentioned here that the lower appellate court has left open the question regarding exchange. If really the findings of the courts below in respect of the above two points of defence are confirmed by me, the question of exchange will have to be left open as it does not come properly within the scope of the present suit for partition and the Plaintiffs may seek their remedies elsewhere as they are advised. 3. The courts below have not only discussed the oral evidence on record, but there are volumes of record on which they base their findings regarding previous partition by metes and bounds. It appears from a decree passed in the Land Registration department that shares of different parties were specified ever since the year 1879. It further appears from a compromise decree of the year 1882 that the shares were so specified. Indeed these indicate only specification of shares which is not inconsistent with the Plaintiffs' case that parties were joint even though shares were specified. The Plaintiffs further go on to urge that there might have been separate possession in respect of some parcels of land, but that also is not sufficient to come to the conclusion that there was a partition by metes and bounds. The Plaintiffs further go on to urge that there might have been separate possession in respect of some parcels of land, but that also is not sufficient to come to the conclusion that there was a partition by metes and bounds. It cannot be disputed that if really separate possession of the parties is found in respect of certain parcels of land, that Itself is not Inconsistent with the theory of jointness of title inspite of separate possession for the sake of convenience. 4. The present case, however, is different on account of the long history that has been thoroughly discussed by the courts below and the records have rightly swayed with the courts below to come to the finding on the question of partition by metes and bounds. Apart from the above two oldest documents specifying the shares, we have got another important item of evidence regarding long series of transactions inter se between the parties which is always taken to be good evidence of partition. Some of these Kabalas as between the parties to the present suit were in accordance with the shares specified by the Land Registration department and in the compromise decree; but there are many others also which are In respect of specified plots and such Kabalas date back to the year 1947 and the last Kabala on this point is of the year 1932. To my mind these Kabalas have rightly swayed with the learned courts below that in fact the properties covered by these transactions inter se between the parties once belonged to a joint family, but they taken along with the records of the years 1879 and 1882 are inconsistent with the case of mere separate possession for the sake of convenience. To add to these important items a good deal of light Is thrown by the several settlement records of rights which are on record. The earliest settlement dates back to the year 1898. There we find even separate Khatas were prepared in the names of different parties. The Revisional Settlement followed the same, that is to say, separate Khatas also were prepared. These two settlements records of rights indicate as to the state of affairs existing during the time when the settlements were going on in 1898 and in 1918. The last settlement record of rights is of the year 1928 when it was finally published. The Revisional Settlement followed the same, that is to say, separate Khatas also were prepared. These two settlements records of rights indicate as to the state of affairs existing during the time when the settlements were going on in 1898 and in 1918. The last settlement record of rights is of the year 1928 when it was finally published. Doubtless as the records show, the Khatas have been jointly prepared but nevertheless separate possession has been noted in respect of each and every plot. 5. It is contended strongly on behalf of the Plaintiffs-Appellants that possession noted separately in favour of the different parties are not exactly and accurately representing their respective shares. The learned lower appellate court has discussed this aspect very carefully and has come to the finding that separate possession noted in favour of different parties does not indicate that possession Was completely disproportionate or inequitable. In my opinion the cumulative effect of the voluminous records placed before the courts below could lead them to come to the conclusion that in tact there was a completed partition by metes and bounds long before the suit for partition was filed, and as such the present suit for partition must fail. In my opinion, on a careful perusal of the judgment of the lower appellate court and also the several documents on record, I find no reason to interfere with the findings of the courts below. 6. On the point of limitation there is no dispute over the proposition that if the first point would be decided in favor of the Plaintiffs that there was no completed partition by metes and bounds and the possession was separate for the sake of convenience, there would not arise any question of limitation as manifestly it has been well settled that a cosharer can very well rely on the possession of other co-sharers as his own unless there be any question of complete ouster and assertion of hostile title which will start the period of adverse possession of the cosharer. But Once I find that there was a completed partition by metes and bounds, the question of limitation also will prevail against the Plaintiffs. In my view, this point has been correctly decided by the courts below and that the suit has been rightly dismissed. But Once I find that there was a completed partition by metes and bounds, the question of limitation also will prevail against the Plaintiffs. In my view, this point has been correctly decided by the courts below and that the suit has been rightly dismissed. It is to be observed, the question of exchange remains open as has been observed by the lower appellate court. 7. In conclusion, the appeal is dismissed with costs. 8. Mr. Rao, appearing on behalf of the Appellants, relies very much upon a Bench decision of this Court reported in Oshashasi Dei v. Patel ILR 1949 Cutt 305. where their Lordships had discussed the position of limitation and come to the conclusion that mere separate possession was no ground for running limitation unless the co-sharers had separated completely and ceased to be co-sharers. It was further observed that where the facts found were that the two brothers separated in mess and estate and a parcel of the land was in the sole occupation and cultivating possession of one of them since the separation, these facts alone was not sufficient for a conclusion of completed partition so as to extinguish co-ownership of the other in that parcel of land. With great respect I agree with the observation made in that decision; but this is absolutely no guidance for the instant case with entirely different facts, circumstances and the long history of separateness even since the year 1869. As I have mentioned above, the cumulative effect of these items of evidence was sufficient for the courts below to come to the conclusion of completed partition This was not there before their Lordship in the case decided in the ILR 1949 Cutt. 305. This observation of mine will also apply to the case relied upon by Mr. Rao in Jolla Bibi v. Ajaladdin 851. C. 1053. On the contrary the position has been made clear on several occasions by me while sitting singly and also in Division Benches that when the parties have been possessing lands separately for a long time and further when they are exercising acts of ownership In respect of those lands, the Courts of fact are competent enough to give proper weight to such circumstances and come to the conclusion of completed partition. In my opinion, therefore, there is nothing to vitiate the judgments of the courts below In law nor in my opinion is the position of law unsettled. The leave prayed for by Mr. Rao is refused. Appeal dismissed. Final Result : Dismissed