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2007 DIGILAW 459 (ORI)

Lingaraj Saraf v. Akhaya Kumar Saraf

2007-06-20

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. — This is an appeal by defendant No.1 against the judgment and decree of the learned Subordinate Judge, Bhawanipatna in T.S. No.11 of 1975 filed by Respondents Nos. 1 to 3 as plaintiffs for declaration of their right, title and inter¬est over the Schedule ‘B’ lands and confirmation of possession or in the alternative for recovery of possession of the same. 2. One Hari Saraf had two sons, namely; Sitaram and Jata. The plaintiffs are the sons and legal heirs of late Sitaram. Defendant No.1 and late Sadhu were the sons of Jata. Defendant No.2 is the son of late Sadhu. The case of the plaintiffs in essence was that in the year 1934-35 Sitaram acquired Ac.25.92 decimals of land appertaining to Khata No.17/2 in village Saras¬guda and another piece of land measuring Ac.0.64 dec. in the name of Late Sadhu. He also acquired some more land in village Chichia and all those lands were treated as joint family properties. According to the plaintiffs, in the year 1937 there was a family partition between Sitaram in one hand and the sons of Jata on the other hand wherein Sitaram retained the lands situated in village Chichia towards his share while Lingaraj and Sadhu got the lands in village Sarasguda as their share and accordingly, Sitaram remained in possession of Schedule-B lands whereas defendants remained in possession of Schedule-A land noted in the plaint. But during settlement operation as Sitaram was old and ailing and the plaintiffs were minors, defendant No.1 was looking after the settlement operation and taking advantage of the situation he got his name recorded in respect of the Schedule-B land and thereaf¬ter threatened to disturb the possession of the plaintiffs over that land, for which they had to file the suit seeking the above mentioned reliefs. 3. The present respondent No.4 as defendant No.1 filed written statement denying alleged partition in 1937 and pleaded, inter alia, that Sitaram wanted to take Late Sadhu in adoption as he had no son and for that reason, Sadhu was living with Sitaram and was enjoying the properties of Sitaram jointly with Sitaram. 3. The present respondent No.4 as defendant No.1 filed written statement denying alleged partition in 1937 and pleaded, inter alia, that Sitaram wanted to take Late Sadhu in adoption as he had no son and for that reason, Sadhu was living with Sitaram and was enjoying the properties of Sitaram jointly with Sitaram. He claimed that on 20.2.1939 Sitaram executed a deed of partition allotting the lands in village Chichia including Schedule ‘B’ land to him (defendant No.1) and obtained approval of the then Rani Saheba, who was the ruler of the State, for such division and accordingly, since 1939 he (defendant No.1) is in peaceful possession of Schedule ‘B’ land while plaintiffs are in posses¬sion of the share of land of Sitaram. Defendant No.1 further pleaded that Sadhu was not given any share in the partition of 1939 as he was living with Sitaram as his adopted son. In es¬sence, defendant No.1 claimed that plaintiffs have no right, title or possession over the Schedule ‘B’ land and that he is the sole owner in possession of that land. 4. Defendant No.2 got himself impleaded as a party by filing a petition under Order 10, Rule 1, C.P.C. He filed sepa¬rate written statement pleading therein that there was never any partition in the family at any time and that the family still continues to be joint. He claimed that his father Late Sadhu being one of the sons of Jata had a share in the family property and accordingly, he is entitled to 1/4th share in the entire family property. 5. On the pleadings of the parties, learned trial Court framed 12 issues. The plaintiffs examined five witnesses and produced documents, which were marked as Exts. 1 series, 2 and 3, defendant No.2 examined himself, but produced no document, de¬fendant No.1 examined himself and some witnesses and produced documents which were marked as Exts. 5. On the pleadings of the parties, learned trial Court framed 12 issues. The plaintiffs examined five witnesses and produced documents, which were marked as Exts. 1 series, 2 and 3, defendant No.2 examined himself, but produced no document, de¬fendant No.1 examined himself and some witnesses and produced documents which were marked as Exts. A to H. On consideration of these evidences, learned Trial Judge came to the conclusion that defendant No.2 was never taken in adoption by Sitaram as alleged by defendant No.1, that the alleged partition in 1937 claimed by plaintiffs was not established, but there was partition between Sitaram and defendant No.1 in 1939 where Schedule ‘B’ properties fell to the share of defendant No.1, that defendant No.1 is in continuous possession of Schedule ‘B’ land since 1939, that the claim of defendant No.2 about the family still continuing joint is not believable. Having concluded so, learned Trial Judge dismissed the suit of the plaintiffs’ claiming right, title and confirmation of possession over Schedule ‘B’ lands. Learned Trial Judge, however, held that in the partition of 1939 the suit Schedule ‘B’ land must be deemed to have fallen to the share of defendant No.1 and his brother Late Sadhu and since there had been no partition between defendant No.1 and Sadhu and Sadhu had not been given any share, defendant No.2 is entitled to get 1/2 share in the same. 6. Though the suit was dismissed, the plaintiffs did not prefer any appeal. But defendant No.1 filed the present appeal challenging the findings of the learned trial Court about the share of Late Sadhu/defendant No.2 in Schedule ‘B’ property. After considering the evidence on record and the submissions of the learned counsel for the parties, learned Single Judge allowed that appeal, set aside the findings and decree of the learned trial Court that the defendant No.2 is entitled to 1/2 share in Schedule ‘B’ property. Aggrieved by the said judgment, defendant No.2 filed A.H.O. No.42 of 1990. In that A.H.O. a point was raised about maintainability of the cross claim of defendant No.2 for partition. On consideration of the submission of the parties, A.H.O. was allowed, the judgment and decree passed in F.A. No.123 of 1977 was set aside and the matter was remitted back for fresh disposal including the plea of maintainability of cross-claim of defendant No.2. On consideration of the submission of the parties, A.H.O. was allowed, the judgment and decree passed in F.A. No.123 of 1977 was set aside and the matter was remitted back for fresh disposal including the plea of maintainability of cross-claim of defendant No.2. That is how the present appeal came up before this Court. 7. Mr. N. K. Sahu, learned counsel for the appellant submits that the cross-claim filed by defendant No.2 was not maintainable because prior to the incorporation of Order 8 Rule 6-A of C.P.C. in the year 1977 cross-claim by defendant was not maintainable in any suit other than money suits. He states that the cross-claim and written statement of defendant No.2 having been filed in 1976, i.e., before amendment and incorporation of Order 8, Rule 6-A, C.P.C. the cross-claim for declaration of right, title and recovery possession was not maintainable. He further states that even otherwise, the cross-claim of defendant No.2 was not maintainable as it was a claim not against the plaintiff, who had filed the suit, but against a co-defendant. On the merit of the finding of the learned trial Court, Mr. Sahu submits that there was no scope for recording a finding that the allotment of Schedule ‘B’ land in favour of Lingaraj-defendant No.1 was in fact an allotment of share in favour of Lingaraj and his brother Sadhu as there was no such pleading by defendant No.2 in the written statement. According to Mr. Sahu when there was no pleading in this regard, there was no scope for the learned trial Court either to accept evidence or to record a finding in this regard. In support of his contention, Mr. Sahu relied on the cases in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and others, AIR 1963 SC 1638 , Madhaorao Phalke v. State of Madhya Bharat and another, AIR 1961 SC 298 , Director of Endow¬ments, Govt. of Hyderabad and others v. Akram Ali, AIR 1956 SC 60 . 8. Late S. Mishra, learned counsel appearing on behalf of respondent No.4, on the other hand, submitted that even before incorporation of Order 8, Rule 6-A, C.P.C. it was permissible for a defendant to raise cross-claim while denying the claim of the plaintiff. of Hyderabad and others v. Akram Ali, AIR 1956 SC 60 . 8. Late S. Mishra, learned counsel appearing on behalf of respondent No.4, on the other hand, submitted that even before incorporation of Order 8, Rule 6-A, C.P.C. it was permissible for a defendant to raise cross-claim while denying the claim of the plaintiff. According to him, even if there was no specific provision in this regard, yet, the defendant had every right to file cross-suit paying the required Court fees on the same and this was permissible to avoid multiplicity of proceeding and conflicting decisions. He states that when respondent No.4 as defendant No.2 filed cross-claim in the shape of a cross suit and paid the Court fees on the same, his cross-claim was legally maintainable. Mr. Mishra further submitted that in view of the pleading of appellant-defendant No.1 that Sadhu had not actually been adopted by Sitaram, Sadhu had a share in the joint family property and therefore, the decree for partition and allotment of 1/4 th share to defendant No.2 was legally just and correct. He argued that when defendant No.2 claimed partition of the joint family property, there was no need for him to specifically plead that allotment of Schedule ‘B’ land was in favour of both defend¬ant Nos.1 and 2. In essence Mr. Mishra supported the judgment and decree of the learned trial Court and in support cited the cases in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others, AIR 1964 SC 11 , Jag Mohan Chawla and another v. Dera Radha Swami Satsang and others, AIR 1996 SC 2222 , Sadasivam v. K. Doraisamy, AIR 1996 SC 1724 , Panna Lal v. State of Bombay and others, AIR 1963 SC 1516 , Smt. Laxmipriya Parida and others v. Smt. Sukantilata Parida and another, 76 (1993) CLT 994. 9. It is the specific plea of the appellant that provision of Order 8 Rule 6-A of the C.P.C. conferring a right on the de¬fendant to raise counter-claim in addition to his right of pleading was for the first time introduced by way of amendment with effect from 1.2.1977 and therefore, the counter-claim filed by defendant No.2 on 31.8.1976 i.e, prior to the above noted amendment was not legally tenable. There is no dispute that prior to the amendment of 1977, Order 8 specifically contemplated counter-claim only in money suits, but in the case of Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, and others (supra) it was held by the apex Court per majority that there is nothing in law statutory or otherwise which precludes a Court from treating a counter-claim as a plaint in a cross suit and that the Court is not prevented from separating the written statement proper from what was described as a counter-claim and treating the latter as a cross suit, if the counter-claim con¬tains the necessary requisites of a plaint. Following this view of the apex Court and also taking note of the views taken in AIR 1983 Patna 132 (Jashwant Singh v. Smt. Darshan Kaur and others), AIR 1982 Kerala 253 (Raman Sukumaran v. Velayudhan Madhavan), AIR 1988 Kerala 163 (Pathrose Samual and another v. Karumban Parames¬waran), AIR 1988 P. & H. 38 (Suman Kumar v. St. Thomas School and Hostel and others) and 71 (1991) CLT 49 (M/s. Ramsewak Kashinath v. Sarfuddin and others) a Division Bench of this Court in the case of Smt. Laxmipriya Parida and others v. Smt. Sukantilata Parida and another held that the conception of counter-claim though not specifically provided in the Code prior to the amend¬ment of 1976 did exist and was recognized and by the amendment detailed provisions were simply made how to deal with the same and therefore, a counter-claim made under Order 8 Rule 6A of the C.P.C. need not be confined to money suit and that counter-claim was entertainable even in other suits. So, law is now settled that even before the amendment of 1976 a defendant was entitled to set up counter claim to the claim raised by the plaintiff. 10. The next legal objection raised by the appellant is that a counter-claim by one defendant against a co-defendant is not legally maintainable. It is argued that in the present case when the plaintiffs have not preferred any appeal against the dismissal of the suit, there is no scope for the Court to entertain the claim set up by one defendant against a co-defendant, as a counter-claim by a defendant can only be raised against the claim of the plaintiff. It is argued that in the present case when the plaintiffs have not preferred any appeal against the dismissal of the suit, there is no scope for the Court to entertain the claim set up by one defendant against a co-defendant, as a counter-claim by a defendant can only be raised against the claim of the plaintiff. In the case of Panna Lal v. State of Bombay and others (supra) the five Judge Bench of the apex Court while reversing the finding of the Bombay High Court observed that in exceptional cases cross-objection can be decided among the co-defendants/co-respondents under Order 41 Rules 22 & 33, C.P.C. It is worthwhile to note that in the present case defendant No. 1 set up the plea that the share allotted in the partition of 1939 was exclusively his share and that neither defendant No.2 nor his father Sadhu had any interest or claim in that share. Because of this pleading defendant No.2 with the permission of the Court impleaded himself as a party under Order 10 Rule 1, C.P.C. and raised a counter-claim that he has a share in the joint family property and that the said share be given to him. Because of this pleading issue was framed and learned trial Court on perusal of the evidence held that the share allotted in the 1939 partition in the name of defendant No.1 was in fact the share allotted to the branch of Jata and therefore, Lingaraj and Sadhu (father of defendant No.2) both had equal interest in that share. Since the pleading of defendant No.1 was that defendant No.2 had no right in Schedule-B property and defendant No.2 countered the claim saying that he has a share in the property, the issue was basi¬cally between defendants 1 & 2. In such situation the counter-claim of defendant No.2 was maintainable as otherwise no final adjudication about the right of the parties was possible and would have entailed in multiplicity of proceeding. 11. Plaintiffs had pleaded that there was a partition of the suit land in 1937, but they failed to prove that partition. In such situation the counter-claim of defendant No.2 was maintainable as otherwise no final adjudication about the right of the parties was possible and would have entailed in multiplicity of proceeding. 11. Plaintiffs had pleaded that there was a partition of the suit land in 1937, but they failed to prove that partition. On the question as to whether there was a partition between Sitaram and defendant No.1 in 1939, learned trial Court found that there was a complete partition of the joint family property between the parties in the year 1939 and that the said partition was also approved by the then ruler. The certified copy of the partition deed executed by Sitaram Saraf on 20th February, 1939 (Ext. E), Certified copy of the order of Rani Saheba giving permission for the division of the land between Sitaram and de¬fendant No.1 with effect from 20th February, 1939, Certified Copy of the Jamabandi Register containing a remark that in view of the partition and order of Rani Saheba mutation in the name of de¬fendant No.1 as per partition was effected (Ext.B). The certified copy of the R.O.R. of the current settlement (Ext.C), certified copy of the Kararnama between Sitaram and defendant No.1 in Misc. Case No.62 of 1954 (Ext.A), Certified copy of the Patwari report dated 29.3.1939 (Ext.G) along with the oral evidence clearly establish that there was a partition between Sitaram and defend¬ant No.1 in 1939. The controversy is whether the share allotted to defendant No.1 was in fact the share allotted to the branch of late Jata i.e. defendant No.1 and Late Sadhu or whether it was the exclusive share of defendant No.1. In this regard defendant No.1 raised a plea that Sadhu had been adopted by Sitaram giving Schedule B land exclusively to defendant No.1. Though it was the plea of defendant No.1 that Sadhu Saraf was the adopted son of Sitaram, both plaintiffs and defendant No.2 denied this fact. So the burden was on defendant No.1 to prove the above said adop¬tion. In his written statement defendant No.1 did not specifical¬ly claim that Sadhu was adopted by Sitaram. It is simply men¬tioned that Sitaram had decided to adopt Sadhu and therefore, Sadhu was living with Sitaram all along. Defendant No.1 did not mention in the written statement if and what ceremony was under¬taken in the alleged adoption. No document of adoption was also produced. It is simply men¬tioned that Sitaram had decided to adopt Sadhu and therefore, Sadhu was living with Sitaram all along. Defendant No.1 did not mention in the written statement if and what ceremony was under¬taken in the alleged adoption. No document of adoption was also produced. On the other hand, in R.O.R. Ext. 1, Jamabandi Register Ext.2, Sadhu has been described as son of Jata Saraf. D.Ws 2, 3 & 5 stated that Sitaram wanted to take Sadhu in adoption, but they never stated that Sitaram actually took Sadhu in adoption or that any ceremony of adoption was performed. It is not disputed that Sitaram had his own children. So he had no reason to take Sadhu in adoption particularly when there was no evidence to show that he had no chance of getting a son. In view of such evidence and circumstances, learned trial Court was perfectly justified in observing that Sadhu was not the adopted son of Sitaram. 12. The next question for consideration is whether the share allotted by Sitaram to defendant No.1 can be presumed to be in favour of both Lingaraj and Sadhu. Defendant No.2 in his written statement has not mentioned that the share given in the name of defendant No.1 in the deed of partition was in fact the share given to Jata’s branch. So it was nobody’s case that the share noted in the name of defendant No.1 in Ext.F was the share of Jata’s branch. When there was no such pleading there was no scope for the trial Court to accept evidence in that regard or give a finding that the share was in fact meant for both defend¬ant No.1 and Sadhu. It is the admitted case of the parties that Sitaram Saraf acquired the lands and he executed Ext.F in 1939 granting a share to defendant No.1. The document Ext.F and the order passed by Rani Saheba do not contain any hint that the share which was given to defendant No.1 was for Jata’s branch or that any one else than defendant No.1 had any share in the same. The entries in the Jamabandi Register, R.O.R. of current settle¬ment show that Schedule-B land has been recorded exclusively in the name of defendant No.1. Patwari Report also discloses that defendant No.1 was in exclusive possession of this property. The entries in the Jamabandi Register, R.O.R. of current settle¬ment show that Schedule-B land has been recorded exclusively in the name of defendant No.1. Patwari Report also discloses that defendant No.1 was in exclusive possession of this property. If the share was meant for both Lingaraj and Sadhu, then naturally the names of both the sons of Jata would have been reflected in the order of Rani Saheba and the settlement records. There is also no evidence that Sadhu or defendant No.2 ever raised any objection before the settlement authority against the recording of name of defendant No.1 exclusively in respect of the Schedule-B property. The explanation in this regard is that plaintiff’s and defendant No.2 were minors and Jata had died when the settle¬ment operation took place. The said explanation is not acceptable because even after attaining majority none of these persons raised any objection before any authority. It is further argued that the order of Rani Saheba is of no use as the details of the properties have not been described in the order. It is also argued that settlement records do not create any right. The order of Rani Saheba clearly indicates that basing on the partition document of 1939 permission was granted. The settlement records no doubt do not create any right or title in favour of any party, but the entries in the settlement documents are relevant and admissible to show the exclusive enjoyment of the property by defendant No.1. Moreover, the Kararnama Ext.A also indicates that Sitaram admitted that defendant No.1 was in exclusive enjoyment and possession of Schedule-B property. Witnesses D.Ws 4 & 5, who have attested this Kararnama have proved due execution of this document. In the face of the above noted evidence and lack of pleading of defendant No.2 the conclusion of learned trial judge that the share given to defendant No.1 under Ext. F was meant for Jata’s branch was unjust and against the material on record. So, the direction of learned trial Court that the properties in Schedule-B of the plaint are to be divided between defendants 1 & 2 equally is unsustainable and is accordingly set aside. 13. In the result, therefore, the appeal filed by defendant No.1 is allowed and it is held that defendant No.1 alone is entitled to the properties conveyed to him under Ext. 13. In the result, therefore, the appeal filed by defendant No.1 is allowed and it is held that defendant No.1 alone is entitled to the properties conveyed to him under Ext. F. However, parties are directed to bear their own cost in this appeal. Appeal allowed.