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2013 DIGILAW 265 (ORI)

Anam Charan Behera v. Adikanda Patra

2013-08-05

M.M.DAS

body2013
JUDGMENT M.M. Das, J. This second appeal was disposed of by judgment dated 30.8.1996 allowing the same and setting aside the judgment and decree passed by the First Appellate Court while confirming that passed by the trial court. The respondent no. 1 approached the Hon’ble Apex Court against the judgment passed by this Court in Civil Appeal No. 996 of 1997. The Hon’ble Apex Court remitted the matter back to this Court with the following order: “As, on facts and circumstances of the case, we are inclined to remand to the High Court the aforesaid Second Appeal for fresh decision, we refrain from expressing any opinion on the merit of the controversy lest it may prejudice any of the parties before the High Court. We would only notice that part from Exhibit-G the First Appellate Court in its judgment referred to other documentary and oral evidence for coming to the conclusion that the decree of the trial court could not be sustained. The High Court, it seems, considered only Exhibit-G and not the other evidence. Thus, setting aside the impugned judgment, we would remand Second Appeal No. 191 of 1984 to High Court for its fresh decision. The appeal would be decided without having regard to any observations made in this order or in the order of the High Court impugned herein. The Second Appeal being very old, we expect and hope that the High Court will be able to decide it within a period of six months and pending decision of the appeal no third party interest would be created in respect of the parcel of land in question. The appeal is allowed in the above terms leaving the parties to bear their own costs.” 2. Hence, the second appeal was heard afresh after substitution of all the legal heirs of some of the deceased parties. The appellants are plaintiffs who filed Title Suit No. 4 of 1977 before the Sub-Judge, now Civil Judge (Senior Division), Kendrapara for partition with a prayer under Section 4 of the Partition Act to repurchase the lands which include house and homestead, from defendant nos. 1 and 2, who, according to the plaintiffs, are strangers to their family. The plaintiffs’ case was that the common ancestor of the plaintiffs and defendant nos. 3 to 10 and 12 was one Iswar Behera, who died leaving behind two sons, Maguni and Jagu. Defendant nos. 1 and 2, who, according to the plaintiffs, are strangers to their family. The plaintiffs’ case was that the common ancestor of the plaintiffs and defendant nos. 3 to 10 and 12 was one Iswar Behera, who died leaving behind two sons, Maguni and Jagu. Defendant nos. 5 to 10 are of Maguni’s Branch and Jagu’s sons are Hari, defendant no. 12 and Pari, father of defendant no. 4 and plaintiff nos. 1 and 2. The further case of the plaintiffs was that the suit plot nos. 506 and 507 are the joint family homestead properties along with the house standing thereon in which Jagu had half share. Defendant no. 12-Hari from his young age was residing in Calcutta. The second son of Jagu (Pari) was alone enjoying his father’s half share in the above two plots and on his death, the plaintiffs and defendant no. 4 have been jointly possessing the same. In 1972, defendant nos. 1 and 2, who were strangers to the family of the plaintiffs, purchased Ac. 0.03 decimals of land from the aforesaid two plots of defendant no. 12 and tried to forcibly possess it for which the plaintiffs were compelled to file the suit for partition seeking the relief under Section 4 of the Partition Act to repurchase the land from the stranger purchasers, defendant nos. 1 and 2. The purchasers, defendant nos. 1 and 2, traversed the pleadings in the plaint by filing a joint written statement. Their case in short is that all the properties including the suit property have long since been amicably partitioned between the co-sharers. Therefore, the suit plots having lost it of the joint family property qua the dwelling house, the plaintiffs’ suit for partition is not maintainable. 3. The trial court after framing the issues and hearing the suit where parties led their evidence both oral and documentary decreed the plaintiff’s suit. Being aggrieved, defendant nos. 1 and 2 carried an appeal being Title Appeal No. 12 of 1982, which was heard by the learned Second Addl. District Judge, Cuttack, who reversed the judgment and decree passed by the trial court. The plaintiffs, therefore, preferred the present second appeal, which was once decided by judgment dated 30.8.1996 as already stated above and is being heard again on being remanded by the Hon’ble Apex Court by order passed in the above mentioned Civil Appeal. 4. District Judge, Cuttack, who reversed the judgment and decree passed by the trial court. The plaintiffs, therefore, preferred the present second appeal, which was once decided by judgment dated 30.8.1996 as already stated above and is being heard again on being remanded by the Hon’ble Apex Court by order passed in the above mentioned Civil Appeal. 4. The only substantial question of law, which was framed at the time of admission of the second appeal, was that whether the lower appellate court misconstrued the document (Ext. G) while reversing the findings of the lower court that there was no previous partition between the parties. The Hon’ble Supreme Court in the remand order, as quoted above, noticed that apart from Ext. G, the first appellate court in its judgment referred to other documentary and oral evidence for coming to the conclusion that the decree of the trial court could not be sustained, but this Court only considered Ext. G and not the other evidence. Keeping the above order of the Hon’ble Supreme Court in view, looking at the judgment passed by the lower appellate court, it would be found that the lower appellate court has taken into consideration the fact that the plaintiffs have not included in any other properties in the suit for partition apart from two plots, a portion of which was sold in favour of defendant nos. 1 and 2 respectively. Referring to Ext. G, the lower appellate court found that the same is a sale deed of the year 1934 executed by Dwari, widow of Bhagaban in favour of an outsider Harekrushna Das. The recitals in the said sale deed go to show that there has been a partition of the joint family properties. The lower appellate court further referred to the oral evidence adduced by D.W. 2 as well as the Ext. 1, which is a sale deed executed by Dulei, who is the daughter of Jagu, in favour of plaintiff no. 2. Ext. 1 was executed during pendency of the suit, which was relied upon by the plaintiffs. Relying upon the above documents, the lower appellate court set aside the findings of the trial court that there was no partition of the suit property between the parties and the suit property was joint family property and the parties were jointly possessing the dwelling house. Relying upon the above documents, the lower appellate court set aside the findings of the trial court that there was no partition of the suit property between the parties and the suit property was joint family property and the parties were jointly possessing the dwelling house. The lower appellate court, thus, found that there was a previous partition and the house in question was not a joint family dwelling house. 5. No doubt, it is true that unless partition is proved, every Hindu family is presumed to be joint and separation in mess is not a conclusive proof of partition. Keeping the above principles in view, it would be seen that the lower appellate court was right in holding that Ext. 1, which has been relied upon by the plaintiffs-appellants, clearly shows that the suit property was partitioned earlier for which the daughter of Jagu sold a portion of the suit property to plaintiff no. 1 under Ext. 1 during pendency of the suit and in the said sale deed, the vendor has clearly stated that she purchased the property from her brother, Hari. Over and above Ext. 1, the other sale deeds produced by the defendants marked as Exhibits and more specifically Ext. G clearly shows that the property was being separately dealt with by the parties, which leads to a presumption that the joint family properties were partitioned earlier by metes and bounds. Even, Ext. 1 shows that the homestead property has also been partitioned. This Court, therefore, finds that there is no error in the impugned judgment of the lower appellate court in setting aside the judgment and decree passed by the trial court. No other substantial question of law is involved in the second appeal. The second appeal, therefore, being devoid of merit stands dismissed, but in the circumstances, without cost.