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2012 DIGILAW 929 (PAT)

Kanti Devi v. Damodar Nath Thakur

2012-07-05

MUNGESHWAR SAHOO

body2012
ORDER Heard Mr. Jitendra Kishore Verma, learned counsel appearing on behalf of the appellant as well as Mr. Anil Kumar, learned counsel appearing for the respondents. 2. The defendants-respondents are the appellants. The plaintiffs- respondents filed partition suit No. 190/92/42/2006 claiming partition of the suit property to the extent of half share on the ground that the suit property was purchased jointly by registered sale deed dated 21.5.1959 for a consideration of Rs.700/-. The plaintiff contributed 50% i.e. Rs.350/-. There has been no partition between the parties and therefore plaintiff prays for a decree for partition may be passed. 3. The defendant claimed that in fact after taking Rs.1800/- the plaintiffs has surrendered his half share in favour of the defendant in the year 1960. 4. The trial court after trial found that before the ceiling authority an affidavit has been filed by the plaintiffs to the effect that he has no other property except the property mentioned in the ceiling proceeding. In that ceiling proceeding the suit property was not mentioned. Exhibit No. L/1 is the sale deed. In the boundary the name of defendants has only been mentioned and the name of the plaintiffs is not there and therefore by this conduct it appears that there was oral surrender as claimed by the defendants and accordingly dismissed the plaintiffs’ suit. On appeal the appellate court reversed the findings of the trial court and decreed the plaintiffs’ suit and T. A. No. 39/2008/3/2010 was allowed. 5. Mr. Verma, learned counsel for the appellants, raised only one ground to the effect that in view of the fact and circumstances considered by the trial court regarding conduct of the plaintiffs clearly proves that he relinquished his share or that he abandoned his title regarding the suit property. In support of his submission learned counsel relied upon AIR 2003 (SC) 578 (B. L. Sreedhar and ors. Vs. K. M. Munireddy (dead) & ors.) and submitted that estoppel will apply. The plaintiff filed the affidavit before the ceiling authority stating that he had no other land and therefore he is estopped from claiming title over the suit property. In support of his submission learned counsel relied upon AIR 2003 (SC) 578 (B. L. Sreedhar and ors. Vs. K. M. Munireddy (dead) & ors.) and submitted that estoppel will apply. The plaintiff filed the affidavit before the ceiling authority stating that he had no other land and therefore he is estopped from claiming title over the suit property. Even if the oral surrender is found to be invalid in the eye of law then also it will be presumed that possession of the defendants will be adverse as to the plaintiffs and moreover simple suit for partition is not maintainable because under section 145 of the Code of Criminal Procedure proceeding the possession of the defendants has been declared in the year 1989. 6. On the other hand, learned counsel appearing on behalf of the respondents submitted that admittedly by registered sale deed the property has been purchased in the name of the plaintiffs and the respondents. There is no documentary evidence regarding surrender and therefore oral surrender claimed by the defendants will be invalid. The defendants only claims acquisition of title by adverse possession and there is no pleadings of ouster also and therefore none of the courts below has considered this aspect of the matter. In such view of the matter, the possession of co-owner will be the possession of other co-owner. According to the learned counsel, therefore, the grounds raised by the appellants is not a substantial question of law involved in the present appeal for decision. 7. So far as the decision cited by the learned counsel for the appellants is concerned, the apex court in that decision considered the applicability of doctrine of estoppel. So far the law laid down by the Apex Court in that case is concerned, there is no dispute but naturally the same should be applied in suitable cases and not in all cases. It will be depend on the facts of each case. It appears that in that case the plaintiffs gave their consent for regrant of entire land in favour of defendant no.3, his son. Therefore, the land was recorded in favour of his son. Subsequently, he filed the suit claiming for declaration that he is the exclusive owner of the property. It will be depend on the facts of each case. It appears that in that case the plaintiffs gave their consent for regrant of entire land in favour of defendant no.3, his son. Therefore, the land was recorded in favour of his son. Subsequently, he filed the suit claiming for declaration that he is the exclusive owner of the property. In that view of the matter, Apex Court has held that he was estopped from claiming title exclusively in view of his consent given earlier in favour of his son. In the present case, the fact is entirely different. The affidavit has been filed by the plaintiffs before the ceiling authority stating that he has no other property. Therefore, at best it can be said that in the said affidavit he has not included the property but on that ground alone it cannot be said that he will be estopped from claiming title if in law he is entitled for declaration of his title. In this way, merely non-inclusion of the suit property in the affidavit, the title of the plaintiffs will not be extinguished. 8. So far as Ext.L/1 is concerned, it is not between the parties. Some other persons have executed the sale deed in favour of the plaintiffs and in the boundary of the sale deed the name of only defendants has been mentioned. In my opinion, misdescription of the name of the owners in the boundary of the land purchased by Ext. L/1 or non-mentioning of the name of the plaintiffs in the boundary of that sale deed also will not disentitle the plaintiffs from claiming his title from the suit property particularly when it is admitted fact that the suit property has been acquired by registered sale deed Ext.1 jointly. 9. So far as passing of the order under section 145 of the Code of Criminal Procedure, the same has been passed in the year 1989. It is not the case of the plaintiffs that the defendants were ousted or that the plaintiffs claimed his title by adverse possession. Therefore, both the court below have not dealt with this matter. In such circumstances, merely because proceeding under Section 145 of the Code of Criminal Procedure the possession has been declared, it cannot be said that simple suit for partition will not be maintainable. Therefore, both the court below have not dealt with this matter. In such circumstances, merely because proceeding under Section 145 of the Code of Criminal Procedure the possession has been declared, it cannot be said that simple suit for partition will not be maintainable. The lower appellate court has considered all the evidences and the materials and also recorded the findings that there was no oral surrender and in the facts and circumstances of the case, the points raised by the appellants are not at all substantial questions of law in the present case. Therefore, in my opinion, no substantial questions of law are involved in this appeal. 10. Accordingly, the Second Appeal stands dismissed at the admission stage itself.