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2009 DIGILAW 460 (ORI)

BISWANATH PANDA v. SARAT CHANDRA PANDA

2009-06-26

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - Plaintiff of Title Suit No. 12 of 1977 of the Court of the then Subordinate Judge, Aska, is the Appellant in this Second Appeal. The suit was one for recovery of possession of the suit schedule lands and for recovery of mesne profit, both past and future, in respect of Ac.2,21 cents of lands more fully described in the plaint schedule. 2. Bereft of unnecessary details, the short facts necessary for appreciating the inter se disputes are as follows: Biswanath Panda (Plaintiff) and Chakrapani Panda were two brothers. According to the plaint case, there was an oral partition between the two brothers in March, 1955. In the said partition, half of the joint family properties and cash of Rs.3,000 was allotted to the share of Biswanath" Panda, the Plaintiff, whereas the other half of the properties were allotted in favour of Chakrapani Panda, father of Defendants. In the said partition, Ac.4.00 dec. of lands besides a house was also allotted to the share of mother of Chakrapani and Biswanath. It is averred that the Plaintiff purchased Ac. 7 .60 cents of land under registered sale deed, Ext.1 dated 27th March, 1955 from one Ramahari Das. Ac.2.21 cents out of the lands purchased under Ext.1 is the property in dispute, which the Plaintiff asserts to be in exclusive possession. It is alleged that after the death of the mother, dissentions cropped up between the two brothers. While matter stood thus Chakrapani died in the year 1976. After his death, Defendants forcibly trespassed into the properties and occupied the same, consequently, the Plaintiff, it is alleged, was constrained to file the suit for recovery of possession & also claimed mesne profit from July, 1977 till realization. 3. After receiving notice, Defendants appeared and filed a joint written statement repudiating all the averments made in the plaint. 4. According to the Defendants, the partition of the joint family properties took place on 20th April, 1956 and not on March, 1955. It is further averred that in March, 1955, Chakarpani, father of the Defendant was not well and as such Biswanath Panda, the Plaintiff, was deputed to get the sale deed Ext.1 registered. 4. According to the Defendants, the partition of the joint family properties took place on 20th April, 1956 and not on March, 1955. It is further averred that in March, 1955, Chakarpani, father of the Defendant was not well and as such Biswanath Panda, the Plaintiff, was deputed to get the sale deed Ext.1 registered. Taking advantage of the said fact, he got the sale deed executed in his own name and also got another document executed in the name of Chakrapani Panda in respect of Ac.4.66 cents of land on the same date, i.e., on 27th March, 1955 vide Ext. E. Further, according to the Defendants, the consideration amount paid in respect of the lands purchased by sale deed vide Exts.1 & E, were out of the income of the joint family properties. In the partition held on 20th April, 1956, it is averred that an area of Ac.2.03 cents, from out of the lands covered under sale deed, Ext.1 and the properties covered under the sale deed, Ext. E fell to the share of Chakrapani Panda and the other properties fell to the share of Biswanath, the Plaintiff. It is averred that the Defendants were all along in possession and enjoyment of the properties, which fell to their share and the claim raised by the Plaintiff is nothing but colourable pretence to grab the properties, and as such, the suit was liable to be dismissed. 5. On the basis of the pleadings, the Trial Court framed four issues. To substantiate his case, the Plaintiff got examined four witnesses and exhibited two documents. Defendants, on the other hand, got examined six witnesses and exhibited eight documents. After discussing the evidence in extenso, the Trial Court held that the disputed properties were acquired out of the joint family funds prior to partition and were partitioned among the co-sharers on 20th April, 1956, consequently the plea taken by the Plaintiff was negatived. The Trial Court, however, further held that out of the suit properties, the Plaintiff was entitled to recover possession of 98 cents appertaining to Survey No, 782 and 35 cents out of 89 cents appertaining to Survey No. 783/1 from the Defendants & accordingly, decreed the suit in part, i.e., to the extent of Ac. 1.33 cents against the total claim of the Plaintiff to the extent of Ac. 2.21 cents. 1.33 cents against the total claim of the Plaintiff to the extent of Ac. 2.21 cents. Surprisingly, however, the Trial Court did not answer issue No. 3, i.e., with regard to the claim of the Plaintiff towards mesne profit. 6. The said Judgment & decree was assailed both by the Plaintiff & Defendant in the Court of Learned District Judge, Berhampur & registered as Title Appeal Nos.87 of 1979 & 100 of 1979 respectively and both the appeals were heard analogously by the Addl. District Judge, Berhampur. The Lower Appellate Court by a common Judgment dated 25th September, 1982 remanded the original suit to the lower Court to dispose of the same on merit with a direction to answer specifically issue No. 3, i.e., relating to mesne profit. The order of remand was assailed by the Defendants before this Court in M.A.No.289 and 290 of 1983. This Court, held that the order of remand passed by the Learned Addl. District Judge was not justified & directed that instead of remanding the suit, the lower Appellate Court should have disposed of the appeal with regard to quantum of mesne profit by determining the same on the basis of evidence available. Accordingly, this Court directed the lower Appellate Court to rehear both the appeals & disposed of the same de novo in accordance with law. 7. After remand, the parties were heard once again by the Appellate Court. On assessment of the evidence both oral & documentary and the materials available on record, the Appellate Court held that the Plaintiff failed to prove that the suit properties were purchased by him after partition. So far as mesne profits are concerned, the lower Appellate Court held that the suit lands belonged to the Defendants and as there was paucity of evidence with regard to income derived from the said property, the issue with regard to mesne profit cannot be decided in favour of the Plaintiff. So far as mesne profits are concerned, the lower Appellate Court held that the suit lands belonged to the Defendants and as there was paucity of evidence with regard to income derived from the said property, the issue with regard to mesne profit cannot be decided in favour of the Plaintiff. To be more specific, the lower Appellate Court came to the conclusion that partition between Chakrapani Panda and Biswanath Panda took place on 20th April, 1956 & not in March, 1955 and that the suit properties to the extent of Ac.2.03 cents were joint family properties of the parties and where the subject matter of partition, $ the Plaintiff was not entitled to get any mesne profit as claimed by him in the suit for the period in question. On the basis of the aforesaid conclusions, Title Appeal No. 101 of 1988 filed by the Defendants was allowed, on the other hand, Title Appeal No. 102 of 1988 filed by the Plaintiff was dismissed. 8. This Second Appeal is admitted determine to the substantial question of law enumerated in ground Nos.(iii), (v) and (vi) of the consolidated memorandum of appeal, which read as follows: (iii) Whether from the averments in the written statement and the depositions of D.W. 1 that the suit land is called "Upporo Jummo Jhola" and said land has been shown to have fallen to the share of the Plaintiff in the so called partition list Ext. A/1 any other person would reasonably came to the finding that the suit land fell to the share of Defendants father and the Plaintiff is not entitled to a decree for recovery of possession? (v) Whether Ext.A/1 the alleged partition list being not registered & being not duly proved is admissible in evidence & the findings of the Courts below made on the basis of recitals made in such a document is sustainable in law? (vi) Whether there is any evidence to support the finding that the Plaintiff purchased the suit properties out of joint family - nucleus & in absence of any evidence to that effect whether the finding of the Courts below is sustainable? 9. Learned Counsel for the Respondents raised a preliminary objection & submitted that the appeal should be dismissed in limine as only one Second Appeal has been filed, though two Title Appeals were disposed of. 9. Learned Counsel for the Respondents raised a preliminary objection & submitted that the appeal should be dismissed in limine as only one Second Appeal has been filed, though two Title Appeals were disposed of. However, it appears that only one suit was filed & the decree passed in the said suit was assailed by the Plaintiff & Defendants by filing two separate appeals. Both the appeals were heard & disposed of by one common Judgment. In such eventualities as there was only one suit & both the decrees were passed in one suit and based on the same facts, & further as the matter decided relates to the entire suit, the principle of res judicata may not strictly be applicable to the case in hand. Therefore, it cannot be said that the Second Appeal should be dismissed on that ground lone. In the case of Narhari and Others Vs. Shankar and Others, it has been held as follows: ...it was not necessary to file two separate appeals in this case. The question of 'res judicata' arose only when there were two suits. As there was one suit and both the decrees were in the same, case and based on the same Judgment and the matter decided concerned the entire suit the principle of 'res judicata did not apply.... 10. So far as merits of the case are concerned, it appears that the moot point that is required to be determined in this appeal is whether the properties in question were purchased after disruption of the joint family status, i.e., after partition of the joint family properties or before the said date. As has been concurrently held by the Courts below, partition among the two brothers took place on 20th April, 1956 and before the said date Chakrapani and Biswanath, the two brothers continued in joint mess. The said finding, being a finding of fact, and as the same is based on proper discussion of evidence, this Court refrains from interfering with the same. The fact of separation/partition and the list of properties allotted to the share of each of the parties was proved on behalf of the Defendants and the same is admissible u/s 18 of the Evidence Act. The fact of separation/partition and the list of properties allotted to the share of each of the parties was proved on behalf of the Defendants and the same is admissible u/s 18 of the Evidence Act. The clear position of law is that a document on the basis of which partition is effected in presentee requires registration u/s 17 of the Registration Act, but if the document is merely a memorandum, recording prior partition of the joint family properties by metes and bounds and acknowledging allotment of different properties already effected by way of family arrangement between the parties either suo motu or at the intervention of the well wishers, such a document needs no registration and would be admissible in evidence. This view of mine gets fortified from the decision of this Court in the case of Brajamohan Das and Others Vs. Radhamohan Das and Others. In the case of Golak Behari Biswal and Another Vs. Karunakar Rout this Court relying upon the decisions of the Supreme Court in the case of Ram Charan Das Vs. Girjanandini Devi and Others, & Sahu Madho Das and Others Vs. Mukand Ram and Another observed as follows: A family arrangement or settlement may either be oral or may be reduced to writing and when it is oral the terms of the settlement may be subsequently recorded in a memorandum. The basic characteristic of a family settlement is that its object is to settle existing or future disputes regarding the property amongst the members of a family the consideration being the expectation that the settlement will result in establishing and ensuring amity and good will amongst the relations. 'Family' in a family settlement is not understood in the narrow sense of being a group of persons recognized by law as having right of succession or having a claim to share in the disputed property. The consideration of expectation having passed by each of the disputants the settlement, consisting of recognition of the right asserted by each other, cannot be impeached thereafter. The consideration of expectation having passed by each of the disputants the settlement, consisting of recognition of the right asserted by each other, cannot be impeached thereafter. The members who may be the parties to the family" arrangement, while must have some antecedent title, claim or interest and even a possible claim in the property, yet one of the parties to the settlement might have no title but under the arrangement if the other party relinquishes all claims or titles in favour of such a person and acknowledges him to be the sole owner, then antecedent title must be assumed and the family arrangement would be upheld. Thus, there is no doubt about the legal position that where a written document is itself not a document of settlement, but is merely a memorandum or evidence of what has been settled, then it does not require registration because as it does not convey, create or extinguish any right, title & interest. But where the' document itself creates or extinguishes the right or even enlarge or limit it, it cannot escape registration. 11. Thus, this Court has no hesitation to confirm the findings arrived at by both the Courts to the effect that partition between Chakrapani and Biswanath took place on 20th April, 1956 and not on March, 1955. 12. The second contention is with regard to the nature of the properties acquired by different sale deeds. According to the Plaintiff, the suit properties should be treated as self acquired properties. The Trial Court after discussing the evidence came to the conclusion under Issue No. 2 that the properties were not self acquired properties of the Plaintiff, but were joint family properties of the Plaintiff & Chakrapani & were subject matter of partition dated 20th April, 1956. The Lower Appellate Court also after discussing the evidence confirmed the said finding, but then held that the conclusion arrived at by the Learned Trjal Court that item No. 1 of the suit properties commonly known "Uper Jamojhola" measuring an area of Ac. 1.46 cents fell to the share of the Plaintiff exclusively was not correct and held that both the brothers had got their respective share therein. 13. The aforesaid finding is criticized by Mr. Rath, Learned Counsel for the Appellant. According to Mr. Rath, the Lower Appellate Court ignored the evidence of P.W.1 and so also Ext. 1.46 cents fell to the share of the Plaintiff exclusively was not correct and held that both the brothers had got their respective share therein. 13. The aforesaid finding is criticized by Mr. Rath, Learned Counsel for the Appellant. According to Mr. Rath, the Lower Appellate Court ignored the evidence of P.W.1 and so also Ext. A, the memorandum of partition dated 20th April, 1956. It is stated that Ext. A/1 clearly indicates that the lands commonly known as "Uper Jamojhola" was allotted to the share of the Plaintiff. 14. To appreciate such arguments, this Court once again went through the pleadings. In para-4 of the written statement filed by Defendant Nos. 1 to 4, initially it was admitted that Defendants do not claim anything more than 73 cents from the lands called "Uper Jamojhola". Similarly, D.W.1 in his evidence at para 7 and 8 admitted that the lands commonly known as "Uper Jamojhola" were allotted to the share of the Plaintiff. This aspect of the case was not kept in mind by the lower Appellate Court. In para 13 of the Judgment, the lower Appellate Court after referring to Ext.A/1 has observed that partition of the land under Khata No. 163/Ka fell to the share of the Plaintiff- Respondent & not the entire Ac.1.46 cents. Thus, this Court finds that the Trial Court was correct in coming to the conclusion that in the partition, the suit properties more fully known as "Uper Jamojhola" as per Ext.A/1 was in fact allotted to the share of the Plaintiff. However, the said lands being not part of the plaint schedule, cannot be the subject matter of this Second Appeal. 15. The prayer made by Mr. Rath to pass a decree for recovery of possession, so far as the lands commonly known as "Uper Jamojhola" cannot be granted as the said lands' are not part of the plaint schedule properties. 16. The only other contention which needs to be considered is with regard to mesne profits. After threadbare scrutiny of the materials available on record, both the Courts below have come to the conclusion that due to paucity of evidence with regard to possession and the income derived from the landed properties, no order can be passed with regard to realization of mesne profit. That apart, no appeal has been filed against the said finding. After threadbare scrutiny of the materials available on record, both the Courts below have come to the conclusion that due to paucity of evidence with regard to possession and the income derived from the landed properties, no order can be passed with regard to realization of mesne profit. That apart, no appeal has been filed against the said finding. Consequently, this Court finds no reason to interfere with the said findings arrived at by the Courts below so far as mesne profits are concerned. 17. On the basis of the discussions made above, this Court while answering the substantial question of law framed, disposes of the Second Appeal confirming the Judgment and decree passed by the lower Appellate Court. 18. The Second'Appeal is accordingly disposed of.