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2007 DIGILAW 551 (ORI)

Khira Sahuani v. Baji Sahu

2007-07-17

A.K.PARICHHA

body2007
JUDGMENT A.K. PARICHHA, J. : The present respondent No.1, Baji Sahoo filed T.S. No.55 of 1975 in the Court of learned Sub-Judge, Berhampur claiming partition of the suit property and also for declaration that the registered sale deed, Ext.A executed by defendant No.2 in favour of defendant No.6 is invalid and void, the same being obtained by fraud. Defendant Nos.1, 3, 4 and 5 did not contest that suit and were set ex parte. Defendant No.2 supported the case of the plaintiff. The only contesting defend¬ant was defendant No.6, who claimed to have purchased the suit property from defendant No.2 on payment of due consideration and to be in possession of that property. From the oral and documen¬tary evidence produced by the parties, learned Trial Court came to the conclusion that there was partition in the family in the year 1922, where the predecessor of defendant No.2, namely, Gobinda Sahoo got a specific share, that the said property of Gobinda Sahoo was subsequently partitioned in the year 1967 by means of registered partition deed, Ext.F, that onus of proving partial partition and exclusion of the suit schedule properties from tha partition was on the plaintiff and the plaintiff could discharge the burden, that the sale deeds Exts. A & G in favour of defendant No.6 are genuine and for consideration and defendant No.6 are is in enjoyment of the properties described in Exts. A & G.. Accordingly, learned Trial Court dismissed the suit of the plaintiff. The plaintiff carried appeal vide T.A. No.15 of 1983. Learned 2nd Additional District Judge, Berhampur, who heard and disposed of that appeal reversed the findings of the learned Trial Court on the issue of partition and held that the suit properties still continue to be joint and is liable to be partitioned. The said Court, however, confirmed the finding of the learned Trial Court that the sale deeds. Ext.A and G are valid and observed that defendant No.6 would get his right over the purchased property subject to the right of defendant No.2 after the parti¬tion. Aggrieved by the said judgment and decree of the learned 1st appellate Court, defendant No.6 has filed the present appeal. 2. The appeal has been admitted to consider the following substantial question of law. (i) Once there is partition, whether there can be presumption of complete partition ? Aggrieved by the said judgment and decree of the learned 1st appellate Court, defendant No.6 has filed the present appeal. 2. The appeal has been admitted to consider the following substantial question of law. (i) Once there is partition, whether there can be presumption of complete partition ? (ii) Whether burden of proof that there was partial partition lies on the plaintiff when, there had already been a partition in the family, which according to the plaintiff was partial and according to defendant No.6 complete ? 3. Law is no more res integra on the above noted aspects. When partition in the joint family is admitted or proved, pre¬sumption will be that there was complete partition of all the properties and burden would be on the party, who claims that such partition was not a complete partition, to prove his claim. Law is also settled that the party who propagates that some proper¬ties were left out of the hotch-pot, is to plead and prove what items of properties were not included in the partition and are still available for petition. In the present case, the plaintiff pleaded that although there was a partition in the family, the suit properties mentioned in item Nos. 1, 2 and 3 of the plain¬t schedule were not included in the partition. In view of this pleading, the burden was on the plaintiff to show that these properties were excluded from the partition. 4. Mr. Rath, learned counsel for the appellant at this juncture submits that although the learned 1st appellate Court accepted the above said legal proposition, it fell into error in relying on the oral evidence of the P.Ws. and concluding that the plaintiff successfully discharged the burden of dispelling presumption of complete partition and establishing that there was partial partition. He submits that the oral evidence is not permissible to rebut the contents of registered document of partition. 5. Mr. B.K. Sahoo, submitting on behalf of Mr. S.K. Padhi, learned counsel for the respondents contends that the oral evi¬dence produced by the plaintiff were sufficient to dispel pre¬sumption of complete partition and therefore, the learned 1st appellate Court rightly held that there was partial partition and that the suit properties are still joint. 6. 5. Mr. B.K. Sahoo, submitting on behalf of Mr. S.K. Padhi, learned counsel for the respondents contends that the oral evi¬dence produced by the plaintiff were sufficient to dispel pre¬sumption of complete partition and therefore, the learned 1st appellate Court rightly held that there was partial partition and that the suit properties are still joint. 6. The present appellant as defendant No.6 claimed that there was complete partition of the properties of Gobinda Sahoo in the year 1967 and relied on the registered portion deed, Ext.F, certified copy of the judgment and decree of T.S. No. 17 of 1952 of the Court of learned Addl. Munsif, Berhampur; Ext. C, the judgment and decree of T.A. No.27 of 1953 of the Court of learned Subordinate Judge, Berhampur, Ext. E. Exts. C & E clear¬ly reveal that in the year 1922 there was a partition among Gobinda Sahoo and his brothers and in that partition, Gobinda Sahoo got a specific share. The document, Ext. F shows that these properties of Gobinda was subjected to partition and out of the same, a specific share as mentioned in tafsil ‘Kha’ was given to defendant No.2. The execution of the document, Ext.F has not been disputed. But the plea of the plaintiff was that the suit proper¬ties were not included in this partition and were left joint and to prove this claim, he relied on the evidence of P.Ws. 1 to 3 and the witness of defendant No.2. Learned 1st appellate Court considered the evidence of these above noted witnesses reliable and held that such oral evidence dispel the presumption of com¬plete partition vide Ext.F. The correctness of this decision is now being questioned. 7. Learned 1st appellate Court held that the presumption attached to Ext. F was dispelled by the evidence of P.Ws. without first recording any finding as to whether the disputed property, namely, item Nos. 1 to 3 of the plaint schedule are there among the properties noted in Ext.F. Only when Ext. F embraces the disputed property, which is claimed to be still joint by the plaintiff, then the question of presumption and rebuttal would arise. Though Ext. F is available on the L.C.R., it is not per¬missible for this Court of Second Appeal to scan/re-assess the evidence and record its own finding on question of fact. F embraces the disputed property, which is claimed to be still joint by the plaintiff, then the question of presumption and rebuttal would arise. Though Ext. F is available on the L.C.R., it is not per¬missible for this Court of Second Appeal to scan/re-assess the evidence and record its own finding on question of fact. There¬fore, the finding of the learned 1st appellate Court that pre¬sumption of jointness has been dispelled and that the disputed property still continues to be joint property of the family, is set aside and the matter is remitted back to the said Court to reassess the evidence and record a fresh finding as to whether the disputed property has been included in Ext.F, whether pre¬sumption of complete partition is available and whether such presumption has been dispelled and whether the disputed property is still available for partition. While taking a decision on the aforesaid aspect, learned 1st appellate Court may take note of the provisions of Section 91 of the Evidence Act, which says that the terms of any contract or document relating to disposition of property, which is required to be reduced into writing in the form of document, has been noted in the document, then oral evidence is not permissible the contradict, vary, add or sub¬tract such term noted in the document and only when the terms and conditions noted in the document are ambiguous and an explanation is necessary to explain such terms and conditions, then only oral evidence is permissible for the limited purpose of clarifying the ambiguity. 8. The Second Appeal is, accordingly, allowed, but in the peculiar circumstances, parties are to bear their own costs. Appeal allowed.