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2014 DIGILAW 124 (ORI)

Padma Charan Sahoo v. Dharmananda Pani

2014-02-14

D.DASH

body2014
JUDGMENT The appellants in this appeal have assailed the judgment and decree passed by the learned Subordinate Judge, Nayagarh (as it was then) in T.S. No.107 of 1988, decreeing the suit in part in passing a preliminary decree for partition entitling the appellant to half share in respect of the properties described in ‘Schedule-A’ of the plaint and refusing to grant any relief of partition in respect of ‘Schedule-B’ and “Schedule-C” properties. For the sake of convenience to avoid confusion and for proper appreciation, the parties hereinafter are being referred to as they have been arrayed in the original suit. It is pertinent to state that one Matiani Sahoo was the original plaintiff and on account of her death during the pendency of the suit, her legal representatives having been substituted prosecuted the suit and are now on appeal being aggrieved by that part of the preliminary decree as stated above. 2.The case of the plaintiffs is that one Mahadev had two sons namely; Bauri and Nityananda and the parties being Hindus are governed by Mitakhara School of Hindu Law. These two brothers had formed the joint family. It is stated that the they during their life time had separated from each other in mess and estate after 1932-33 settlement and they were possessing separate parcels of land out of the land described in ‘Schedule-B’ of the plaint. It is next stated that there was no partition between them in metes and bounds. The original Plaintiff is the daughter of Nityananda whereas the Defendant No.1 is his adopted son and Defendant No.2 and 3 are the two sons of Bauri. The ‘Schedule-B’ property is said to be the joint family property and accordingly it is asserted that plaintiff along with Defendant No.1 to be having half over it where as Defendant No.2 and 3 are said to be entitled to the rest. So far ‘Schedule-A property is concerned, the same is claimed to be the separate and self-acquired property of Nityananda. ‘Schedule-C’ property are said to be the movables of the joint family and therefore, the plaintiffs claim half share along with the Defendant No.1- over the same. It is further case that 10 years prior to the presentation of the plaint Nityananda died and original plaintiff Matiani then repeatedly requested the Defendant Nos.2 and 3 for partition of schedule property which was deferred on various pretexts. It is further case that 10 years prior to the presentation of the plaint Nityananda died and original plaintiff Matiani then repeatedly requested the Defendant Nos.2 and 3 for partition of schedule property which was deferred on various pretexts. Thereafter, lastly when it was not acceded to on 26.06.1987, she had to file the suit. 3.The Defendants contested the suit by filing joint written statement. While traversing plaint averments, it is averred that the plaintiffs who have been substituted in place of Matiani the original plaintiff are not her legal heirs and as such they are not entitled to any relief. It is stated that Defendant No.1- had purchased Ac.01.25 decimals of land from Sankhua, Amin and Manga in the name of his sister Matiani towards her share over the property by registered sale deed dated 6.6.1975 and she relinquished her interest over the said property in Schedule A and B while agreeing not to claim any share over that property. It is further stated that the original plaintiff has got Ac.01.78 decimal towards her share under Khata No.248, Plot No.2011 in village: Lunisara and that she, having already got the properties towards her share is no more entitled to any share from the land described in the schedule of the plaint and so also these plaintiffs. It is also asserted that there has been complete and final partition in metes and bounds between Nityananda and Bauri and as such they challenged the maintainability of the suit. As regards the movables described in Schedule ‘C’ of the plaint, those are said to be imaginary and thus the claim on that score has been termed as fanciful. 4.On such rival pleading the trial Court framed as many as five issues such as the maintainability of the suit, existence of cause of action, prior partition between the parties, the status of the present plaintiffs and appears to have rightly gone to take up the issue regarding the status of the present plaintiffs as it goes to the root of this case. Answer has been rendered in favour of the plaintiffs. Next issue No.3 has been taken up for decision as to whether there has been complete and final partition between the parties. Answer has been rendered in favour of the plaintiffs. Next issue No.3 has been taken up for decision as to whether there has been complete and final partition between the parties. Ultimately on analysis of evidence adduced by the parties in the touch-stone of the pleadings and documentary evidence, let in during trial, it has been decided holding the Plaintiff’s entitlement to half share only in respect of ‘Schedule-A’ property, finding them as not entitled to the relief of getting any share from out of ‘Schedule-B’ and ‘Schedule-C’ properties. Maintainability and existence of cause of action have been decided in favour of the plaintiffs. 5.It may be stated here at the outset that the Defendants have not challenged the findings on the issues with regard to the status of the plaintiffs, existence of cause of action and maintainability of the suit by filing either any cross-appeal/objection. The plaintiffs now in this appeal call in question only the finding on issue No.3 regarding refusal of relief of partition in respect of Schedule ‘B’ and ‘C’ properties. 6.During hearing of this appeal, learned Counsel for the appellants only entered appearance and none appeared on behalf of the respondents who have thus chosen to remain absent. Learned Counsel for the appellant in assailing trial Courts finding on issue No.3 submits that the same is not based on proper appreciation of evidence on record both oral and documentary and the same on being appreciated in their proper perspective do not at all lead in favour of a finding that there was a complete partition between the parties. It is also his submission that when the plea of prior partition has been taken defendants, the burden was resting on them to prove the said fact by leading clear and acceptable evidence which is wholly lacking in this case. Therefore, he contends that in respect of ‘Schedule-B’ property, the refusal of the relief of the partition as claimed by the plaintiffs is unsustainable and accordingly the plaintiffs are to be held as entitled to their share as claimed over the said ‘Schedule-B’ property. Regarding Schedule ‘C’ (movables), he of course of fairly concedes that the evidence on that score is unsatisfactory and that after such long period of separate staying and enjoyment by the parties, such a claim is untenable. Regarding Schedule ‘C’ (movables), he of course of fairly concedes that the evidence on that score is unsatisfactory and that after such long period of separate staying and enjoyment by the parties, such a claim is untenable. 7.On the aforesaid submission, let me now go to examine the sustainability of the finding of the trial Court on issue No.3 only, confined to the refusal of relief of partition in respect of ‘Schedule-B’ property. Paragraph-13 of the judgment deals with the same. The case of the plaintiffs is that the same is the joint family property of Bauri and Nityananda, the two brothers. Defendants claim that there was a complete partition between the two branches further stating that each branch was possessing the land amicably in different portions without there being any partition in metes and bounds. The pleading in the plaint in paragraph-4 however, appears to be self contradictory that at one stage they state that the brothers had separated from each other due to misunderstanding 50 years back after 1932-33 settlements of Nayagarh and next in the same sentence it runs that it was for the sake of convenience that they were possessing amicably, the different portions of ‘Schedule-B’ property. With such pleading P.W.1 who is the husband of the original plaintiff Matiani comes forward to admit in evidence the factum of partition in clear terms between his father-in-law and brother by possessing land separately and even making alienation out of their respective shares. This factum as it appears also finds support from three documents which are sale-deeds, Ext.A, B, C by which Nityananda has sold different areas of land from out of these Schedule-B properties to stranger purchasers with clear recital therein from his side as regards to the complete partition between himself and Bauri. These documents are not being challenged by the plaintiffs in any manner. Recitals contain clear admission of Nityananda through whom the plaintiffs claim their share over ‘Schedule-B’ property and they being bound by the same cannot wriggle out of it, in the absence of any such acceptable explanation which is not forthcoming here. This leads to a conclusion that there was a complete partition between the two brothers. In such state of affair, Matiani the predecessor in interest of the present plaintiffs can be said to be having her share over the properties which had fallen to the share of her father Nityananda. This leads to a conclusion that there was a complete partition between the two brothers. In such state of affair, Matiani the predecessor in interest of the present plaintiffs can be said to be having her share over the properties which had fallen to the share of her father Nityananda. But there remains no such specific pleading in the plaint whatsoever. The property which had fallen to the share of Nityananda is not stated as from out of that share of Nityananda, the allotment of share of the plaintiffs would only stand for consideration. It is also not there in the pleading that as to what extent of land from out of such ‘Schedule-B’ property had been sold by Nityananda during his life time or Bauri and others and more interestingly those purchasers if any have also not been made parties to the suit as they are necessary parties. The plaintiffs contested the suit although they continued the suit although and so also pursued this appeal for all these years and have opted not to take any step in that regard and rather they have chosen for decision within the existing frame work of the suit. Next there also remains another great hurdle in respect of said relief. If Ext.1 is glanced at, it shows that this ‘Schedule-B’ property besides standing recorded in the name of Bauri and Nityananda, the names of Aintha, Kasi and Birabar, Ananda and Dhobei also find mention. It is not stated and explained in any manner as to how their names have surfaced therein whether they had/have any interest or not and for what reason they or their legal representatives if any are not made parties in the suit. The decision in case of M. Venkataramana Hebbar (Dead) by LRs vrs. M. Rajagopal Hebbar and others; (2007) 6 SCC 401 cited by learned counsel for the appellants on the point that despite separation in joint status, parties may continue to possess the lands jointly unless a partition of the joint family takes place by metes and bounds in view of above discussion of the evidence does not come to the aid of plaintiffs in any way to tide over the legal hurdles staring on the face with regard to the claim of share over Schedule ‘B’ properties. Therefore in the suit the plaintiffs are not entitled to the relief of partition over schedule ‘B’ property as claimed. For all the above discussions and reasons indicated, the trial Court appears to have rightly refused to favour the plaintiffs with any relief as prayed for in respect of ‘Schedule-B’ properties. The judgment and decree impugned in this appeal are thus hereby confirmed. 8.In the wake of aforesaid, the appeal stands dismissed, and in the circumstance without any cost. Appeal dismissed.