GANGADHAR MALIK v. KAHNU SETHI — 1972 DIGILAW 244 (ORI)

JUDGMENT : S. Acharya, J. - The unsuccessful Defendant Nos. 1 and 2 have preferred this second appeal against the confirming decision dated 28-4-1969 of the Subordinate Judge, Jajpur. 2. The Plaintiffs' suit was for permanent injunction restraining Defendant Nos. 1 and 2 from exercising any act of possession on the suit land, and/or interfering with the possession of the same by the Plaintiffs and Defendant Nos. 3, and/or altering the Status quo of the same in any manner. According to the Plaintiffs they and Defendant No. 3 belong to an undivided Sethi family and their ancestral lands were never partitioned by metes and bounds. The suit land forms part of their homestead land appertaining to C.S. plot No. 2553 comprising an area of 19 decimals which is recorded jointly in the C.S. Record of Rights in the names of the co-sharers. There was a previous litigation (Title Suit No. 46 of 1960) between the Plaintiffs and Defendant No. 3 on one hand and Defendant Nos. 1 and 2 on the other in which the Plaintiffs and Defendant No. 3 got a decree against Defendant Nos. 1 and 2, and in execution of the same they (the Plaintiffs and Defendant No. 3) obtained delivery of possession of the suit land. A portion of the same homestead was sold to one Gouri Malik by all co-sharers on 14-7-1965. The Plaintiffs and their co-sharers had to institute criminal oases against Defendant Nos. 1 and 2. Defendant No. 3 however did not contribute his share of expenses for those criminal litigations, as a result of which dissension arose between the Plaintiff and Defendant No. 3. Taking advantage of the above dissension Defendant Nos. 1 and 2 managed to get two sale deeds executed by Defendant No. 3 in respect of 1 decimal 5 kadis, and 8 kadis of land from out of plot No. 2553 on 29-6-1966. These Kabalas, according to the Plaintiffs were nominal ones, and were executed without passing of any consideration. As Defendant Nos. 1 and 2 threatened to dispossess the Plaintiffs from out of their possession of the suit land, the Plaintiffs instituted this suit. 3. Defendant Nos. 1, 2 and 3 jointly contested the suit by filing one written statement. These Kabalas, according to the Plaintiffs were nominal ones, and were executed without passing of any consideration. As Defendant Nos. 1 and 2 threatened to dispossess the Plaintiffs from out of their possession of the suit land, the Plaintiffs instituted this suit. 3. Defendant Nos. 1, 2 and 3 jointly contested the suit by filing one written statement. They plead that the Plaintiffs and Defendant No. 3 no longer belong to an undivided family; there was 8, regular partition of the suit plot amongst them and the co-sharers have been separately possessing different portions of the suit plot as fell to their respective shares in the family partition; and Defendant No. 3 out of his own share sold the suit lands to Defendant Nos. 1 and 2 for consideration. It is severed that the suit lands are included in a 'Pani Nala' and they do not constitute the homestead of the Plaintiffs as alleged by them. 4. The suit lands appertain to plot No. 2553 in Khata. No. 1033 and are described in the plaint in the two Schedules A and B. Defendant No. 3 sold 1 decimals 5 kadis of land described in Schedule A to Defendants No. 1 as per Ext. A, And 8 kadis of land described in Schedule B to Defendant No. 2 as per Ext. B. 5. The trial Court finds that there was no partition of the ancestral property by metes and bounds amongst the co-sharers of the family at any time; the suit plot No. 2553 had not been partitioned and it continued to be a peice of undivided land belonging to all the co-sharers including Defendant No. 3 the suit land, though lower in level, is a part of the dwelling house of the Plaintiffs; and Defendants 1 and 2 are strangers to the family of the Plaintiffs and Defendant No. 3 and they do not even belong to the same caste. It finds that the suit plot is contiguous to the homestead of the Plaintiffs and by its very nature it is necessary for the enjoyment and convenient occupation of their adjoining houses. It finds that the suit plot is contiguous to the homestead of the Plaintiffs and by its very nature it is necessary for the enjoyment and convenient occupation of their adjoining houses. On the above findings and on a consideration of the provisions of Section 44 of the Transfer of Property Act and in view of the fact that a portion of the dwelling house belonging to the Plaintiff and Defendant No. 3 had been transferred by Defendant No. 3 in favour of Defendant Nos. 1 and 2 who are strangers to the family, the Court decreed the Plaintiffs' suit as prayed for. The lower Appellate Court has confirmed the decision of the trial Court by concurring with the findings of fact arrived at by the trial Court. 6. Mr. Sinha, the learned Counsel for the Appellants, could not successfully assail the above-mentioned concurrent findings of fact of both the Courts below. He however contended that the findings of the Court below that the suit site was a part of the "dwelling house" of the Plaintiffs was m founded and against the weight of the evidence on record. He urged that the suit site being a strip of land in between the dwelling houses of the Plaintiffs and the Defendants as found by the Court below, and as Defendant Nos. 1 and 2 purchased the suit Bite from one of the co-sharers, the Courts should not have decreed the Plaintiffs' suit for injunction. 7. It is the concurrent finding of both the Courts below that no partition by metes and bounds ever took place between the Plaintiffs and Defendant No. 3, who are co-sharers of the ancestral property; plot No. 2553, out of which the suit lands were Bold to Defendant Nos. 1 and 2, constituted a piece of undivided joint family property of the Plaintiffs and Defendant No. 3 and it had not been partitioned between the cosharers. The trial Court specifically finds that the aforesaid suit lands adjoin the inner Court yard of the Plaintiffs and Defendant No. 3 are part of the joint homestead of the Plaintiffs and Defendant No. 3. The Appellate Court finds that the suit plot is used as the joint Bari land of the Plaintiffs and Defendant No. 3, and they noise vegetables thereon. The Appellate Court finds that the suit plot is used as the joint Bari land of the Plaintiffs and Defendant No. 3, and they noise vegetables thereon. It specifically finds that the aforesaid entire plot consists only of 19 decimals of land and the Plaintiffs and Defendant No. 3 are in joint possession of the same, and the same is contiguous to their own homestead and by its very nature is necessary for the convenient enjoyment and occupation of their houses. On the aforesaid findings it holds that the suit lands form part of their 'dwelling houses' as understood u/s 44 of the Transfer of Property Act. The second paragraph of Section 44 of the Transfer of Property Act provides that where a transferee of a share of a. dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession of other common or part enjoyment of the house. The meaning, implication and connotation of the expression 'dwelling house' in Section 4 of the Partition Act apply to these words appearing in Section 44 of the T.P. Act. In Bhabani Bewa's case 1955 O.L.T. 371, Narasimham, C.J. accepted with approval the meaning and implication attributed to the expression dwelling house in Khirode Chunder Ghosal v. Saroda Prosad Mitra 12 CLJ 525. In that case it is said that the aforesaid expression "embrace not merely the structure or building but includes also adjacent buildings, curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier." In Babulal Tiwari Vs. Hulla Mallah and Others, Manohar Lall, J. says that the words dwelling house mean not only the house itself but also the land and appurtenances which are ordinarily and reasonably necessary for its enjoyment. In Gour Chand Basak and Others Vs. Khirode Nath Basak and Others though a municipal lane intervened between the disputed house and the admitted main house of the family, it was still held that the disputed house formed part of the dwelling house because though the family members did not actually sleep there it was used by the servants and guests of the family. In Boto Krishna Ghose Vs. In Boto Krishna Ghose Vs. Akhoy Kumar Ghose and Others it has been pointed out that the integrity of the dwelling house would not be destroyed merely because the cosharers were living in separate huts inside the undivided plot. The meaning, implication and the connotation given to the expression "dwelling house" in the above-mentioned oases have been accepted with approval in Jyoti Bewa's case 1970 (970) C.W.R. 283. 8. From the above it is quite evident that the expression "dwelling house" as used in Section 4 of the Partition Act or u/s 44 of the Transfer of Property Act does not merely mean the actual building or structure in which the persons actually stay with their belongings, but it also includes within its scope and ambit all such other structures, adjacent buildings, curtilage, garden courtyard, orchard and all i.e. the necessary for the convenient occupation and beneficial enjoyment of the house and for other purposes incidental to the use of the house by the residents. That being so, as the suit lands are of the nature and character as stated above and form part of the Bari land of the Plaintiffs and Defendant No. 3 and are adjacent to their homestead, they form a part of their "dwelling houses", That being so Defendant Nos. 1 and 2, being strangers to the undivided family of the Plaintiffs and Defendant No. 3, they are not entitled under the second paragraph of Section 44 of the Transfer of Property Act to have joint possession of the said lands with the Plaintiffs and Defendant No. 3, nor are they entitled to common or part enjoyment of the suit property. 9. Moreover, it is quite evident that the Plaintiffs and Defendant Nos. 1 and 2 have litigating between themselves, both in the civil and criminal Courts, in connection with the lands in question. Even inspite of that fact Defendant No. 3, one of the cosharers of the Plaintiffs, has sold this portion of the undivided property to Defendant Nos. 1 and 2 by the sale deeds Exts. A and B in the year 1966. The properties are ancestral properties of all the Plaintiffs and Defendant No. 3, and Defendant Nos. 1 and 2 are strangers to the undivided family. 1 and 2 by the sale deeds Exts. A and B in the year 1966. The properties are ancestral properties of all the Plaintiffs and Defendant No. 3, and Defendant Nos. 1 and 2 are strangers to the undivided family. From the above mentioned facts, it is quite clear that the Defendants are out to create trouble and disturbance in the possession of the suit property by the Plaintiffs. On the above facts and also because of the fact that Defendants 1 and 2 are not entitled to joint possession or other common or part enjoyment of the suit property, they have rightly been restrained from interfering with the joint possession of the. Plaintiffs and Defendant No. 3 in respect of the suit land in any manner. On the above considerations I do not find any merit in this appeal which is accordingly dismissed, but in the circumstances of the case there will be no order as to costs.