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2014 DIGILAW 664 (ORI)

Snehalata Khuntia v. Bidyutlata Sahoo

2014-10-14

D.DASH

body2014
JUDGMENT The unsuccessful defendant No.1 has preferred this appeal challenging the judgment dated 03.10.2008 followed by drawal of preliminary decree in C.S. No.11 of 2005 by the learned Civil Judge (Senior Division), Keonjhar. 2.For the sake of convenience, to avoid confusion and in order to bring clarity, the parties hereinafter have been referred to as arranged in the Court below. Plaintiff (respondent No.1) filed the suit for partition of the properties described in the schedule of the plaint claiming further relief of rendition of account and mesne profit. The case of the plaintiff is that Saunti Khuntia died on 19.01.1991 leaving his two sons, namely, Harihar Khuntia and Balaram Khuntia (both since dead) and four daughters, namely, Sarojini (since dead), Kanakalata (defendant No.15), Khiramani (defendant No.14) and Bidyutlata (plaintiff). Defendant No.1 is the wife of Harihar and defendant Nos.2 and 6 are his other successors. Successors of Sarojini are defendant Nos.7 and 13 whereas defendant Nos.16 and 19 are the successors of Balaram. Saunti Khuntia had immoveable property in three villages, namely, Harichandanpur, Jaunlipokhari and Singhbilla as described in Schedule B, C. and D of the plaint respectively. Properties describing in Schedule “E” of the plaint were in possession of Saunti though recorded in the name of the State. It is also the case of the plaintiff that the houses constructed by Saunti have been given to different persons on rent as described in Schedule “F” of the plaint and Harihar was collecting the rent from all those tenants since January, 1991 except those given on rent to Sushanta and Mahendra. It is further case of the plaintiff that the defendant No.1 collected the rent from Sushanta and Mahendra at the rate of Rs.200/- and Rs.300/- per month respectively till December, 1996. It is also the case of the plaintiff that the rent collected, as stated above, has been misappropriated by the above named collectors. So, besides, making a prayer for partition of the schedule properties, relief of rendention of account and claim of mesne profit have also been advanced. It is worthwhile to state here that the defendants other than those as stated above are the purchasers of the joint family properties. 3.Defendant No.1 to 3 (appellant, respondent No.2 and 3) contested the suit by filing the written statement. It is worthwhile to state here that the defendants other than those as stated above are the purchasers of the joint family properties. 3.Defendant No.1 to 3 (appellant, respondent No.2 and 3) contested the suit by filing the written statement. I tis stated that some properties of Saunti Khuntia situated in village Kalan have not been included in the suit, so also the house situated in mouza Harichandanpur and another plot of land. It is their case that the said land had been purchased by Harihar in the name of Balaram. Harihar constructed a building over the said land and was residing in the said house for more than 15 years. Since 1997, defendant No.16 is residing there in the said house with her family members as per family settlement. She having inducted tenants, is collecting rent at the rate of Rs.1250/- per month. It is further stated that Harihar Khuntia had also excavated a tank and dug a well on the said land. It is also their case that Saunti Khuntia had purchased the suit land from out of the income of ancestral joint family property. Thus, the properties of Saunti Khuntia are required to be partitioned accordingly and not as his self acquired property. They have also objected for partition of Schedule-E property described in the plaint in the absence of the State as a party to the suit. They have further claimed that another plot of land comprising quite a sizable area belonging to the State is also in possession of the parties. They have denied the factum of collection of the rent as described Schedule “F” of the plaint. It is also their case that the homestead land and house of Saunti was in possession of Harihar Khuntia as per the agreement dated 22.09.1997 and three rooms have been given on rent. Defendant No.16 occupied the house situated at Bargoda Sahi of Harichandanpur and collecting rent from the tenants of the said house. The contesting defendants have come up with a case that the plaintiff in convenience with defendant No.16 has filed the suit for illegal gain. Plea has been advanced that the land sold to defendant Nos.29 to 31 was to meet the funderal expenses of Saunti Khuntia and, therefore, it is would not come within the purview of partition. The contesting defendants have come up with a case that the plaintiff in convenience with defendant No.16 has filed the suit for illegal gain. Plea has been advanced that the land sold to defendant Nos.29 to 31 was to meet the funderal expenses of Saunti Khuntia and, therefore, it is would not come within the purview of partition. They have also pleaded that the property sold by wife of Saunti Khuntia need be excluded from the subject matter of partition. According to the contesting defendants, earlier there was a title suit bearing T.S. No.85 of 1999, wherein the plaintiff being one of the defendants had not filed written statement and the said suit was allowed to be dismissed. It is further stated that during the life time of Saunti Khuntia and after his death, Harihar Khuntia had shouldered the entire burden of his family till 1997 and got separated the legal heir of Balaram who was doing nothing. It is stated that Harihar had paid the sum of Rs.12,000/- for litigation expenses of deceased Balaram. Saunti Khuntia had incurred loan of LAMP. So, Harihar paid the said amount which then stood accumulated at Rs.9000/- and further balance of Rs.75,000/- towards another loan taken for the marriage of the daughter of Balaram was standing at Rs.1.25 lakh and now there is an outstanding of Rs.75,000/-. Besides the above a sum of Rs.50,000/- is outstanding in the name of Harihara which he had incurred to meet the funeral expenses of his mother. So it is claimed that if the partition would be made that has to be after adjustment of the liabilities. It is stated that Harihar purchased an acre of land in the name of his brother at Bargoda Sahi that has been recorded in the name of Balaram which should not have been excluded from the subject matter of the suit. In view of all these, they pray for dismissal of the suit. 4.Defendant Nos.21 and 22 have filed the written statement claiming to have purchased Ac.0.50 decimals of land at Mouza Jaunlipokhari from Taramani Khuntia by registered dated 27.02.1999. Similarly defendant Nos.23, 24 and 25 have filed in their written statement claiming to have purchased Ac.0.91 decimals of land at Singibila from Taramani Khuntia by registered sale deed dated 02.01.1998 and claim to be in possession of the same. Similarly defendant Nos.23, 24 and 25 have filed in their written statement claiming to have purchased Ac.0.91 decimals of land at Singibila from Taramani Khuntia by registered sale deed dated 02.01.1998 and claim to be in possession of the same. The defendant No.29 in his written statement has pleaded that his wife Parbati has purchased the land by registered sale deed dated 05.04.1991 from Harihara and Balaram and is in possession of the same having constructed a house. 5.On the aforesaid pleadings the Court below has framed as many as six issues. Besides the maintainability and existence of cause of action as also whether the suit land is liable for the partition as well as the plaintiff’s entitlement to share therein; the Court below has framed an issue with regard to the validity and binding nature, if any, of those sale deeds by Taramani Khuntia in favour of Defendant Nos.21 to 25 and by Harihar Khuntia and Balaram Khuntia on 05.04.1991 in favour of defendant No.29 and 31. 6.During the trial, the plaintiff has examined two witnesses including herself as P.W.1. The defendant Nos.1 to 3 have examined four witnesses including defendant No.2 as D.W.1. Defendant No.24 has been examined himself as D.W.2 and so also the defendant No.29 has examined himself as D.W.3 and an independent witness as D.W.4. The Khatians which are the contemporaneous documents have been exhibited as Ext.1 to 4 and Ext-A is the Khatian bearing No.131. 7.The trial Court first of all has taken up the validity of the sale deed in favour of defendant Nos.21 to 25 said to have been executed by Taramani Khuntia and upon analysis of evidence, the issue has been answered in the way that the alienation in favour of defendant Nos.21 to 25 has not been proved and thus no title rests upon those defendant Nos.21 to 25 in respect of properties described in the said sale deed No.70 and 71 dated 27.02.1999. The trial Court next with regard to the issue as regards validity of the sale deed said to have been executed by Harihar and Balaram on 05.04.1991 in favour of defendant Nos.29 and 31 on going through the evidence as piloted by the parties and taking note of non-production of those sale deeds has again found that those defendants have not been able to prove the alienation in their favour by Harihar and Balaram. The findings have also been given on the basis of evidence that Schedule-B, C and D are the property of the Saunti and those have not been acquired out of income from joint family nucleus. The claims with regard to rendition of account and mesne profit have been declined. Finally the suit for partition has been decreed allotting 1/6th share each of plaintiff and defendant Nos.14 and 15; 1/6th shares jointly to defendant Nos.1 to 6; 1/6th shares jointly to defendant No.7 to 13; 1/6th shares jointly to defendant No.16 to 19 over the property to Schedule-B, C and D and plaint. 8.Learned counsel for the appellant submits that the finding on issue Nos.3 and 4 with regard to the validity of sale deeds executed by Taramani and also Harihara and Balaram as rendered by the Court below is not based on proper appreciation of the evidence in touch stone of the pleadings of the parties. He further contents that on the basis of the evidence on record, the trial Court ought to have held that the suit property standing in the name of Saunti Khuntia are not her exclusive property and those have been purchased from out of the income of the joint family nucleus. In this connection he has placed the deposition of D.W.1 who is none other than defendant No.2 and thus he contends that it is his evidence that the loan which was taken by his father and Saunti to meet the family expenses was cleared by his deceased father. He next submits that the findings of the trial Court are against the weight of evidence on record. Learned counsel for the respondent No.1 supports the finding of the trial Court on all the issues and according to him, the judgment and preliminary decree passed in the suit are not liable to be interfered with. 9.On such rival submission, this Court is now called upon the judge the sustainability of findings on the above issues. As regards the sale by Saunti for legal necessity in favour of defendant Nos.21 to 25, when the defendant Nos.21 to 25 have pleaded in support of deeds, the plaintiff does not admit such alienation in favour of those defendants and has stated in denial of the same. The defendant No.24 as D.W.2 has stated that defendant No.14 took the consideration money though Taramani executed the sale deed. The defendant No.24 as D.W.2 has stated that defendant No.14 took the consideration money though Taramani executed the sale deed. He has further stated that there was no legal necessity for Taramani to sell the land and the necessity was for the marriage of Khiramani’s daughter. Interestingly and most importantly, the sale deed has not even been proved. So as regards alienation, the base document is even not seen and the non-proof of the same is enough to hold against the alienation. In such state of affair of the evidence this Court do not find any such reason to upset the finding rendered by the trial Court on the issue that the alienation claimed to have been made by Taramani in favour of defendant Nos.21 and 25 did not clothe them with any interest in respect of the said property. 10.Now with regard to the sale deed said to have been executed by Harihar and Balaram on 05.04.1991 in favour of defendant Nos.29 and 31, D.W.3 who is defendant No.29 has not proved any such sale deed. Even though his oral evidence is that Harihar and Balaram has sold Ac.0.30 decimal of land to him and Ac.0.070 decimal of land to defendant No.30 and 31 but those are not enough to render a finding favouring such alienations when even the base document is not placed and proved which was imperative on their part. In that view of the matter, this Court do not find any reason to disturb the same. 11.With regard to the finding on the exclusive ownership of the Saunti Khuntia in respect of suit land, it is rather the evidence of D.W.1 that the property belong to Saunti Khuntia. He has not been able to say as to what was the income and expenditure of the family and when has further stated that the income was about Rs.40,000/- to Rs. 50,000/- per annum, the expenditure was more which makes it clear that there was never any surplus. Thus, the burden lying on the party asserting that it was so purchased from out of the surplus of the income of the joint family nucleus and that the property in the hands of the Saunti was acquired from the out of the joint family nucleus has not at all been discharged. Thus, the burden lying on the party asserting that it was so purchased from out of the surplus of the income of the joint family nucleus and that the property in the hands of the Saunti was acquired from the out of the joint family nucleus has not at all been discharged. In view of that the irresistible conclusion flows that Schedule-B, C and D properties are the exclusive property of Saunti and it is his sons and daughters who are entitled to get equal share. It may be mentioned here that when the trial Court has declined to grant of relief of rendition account and meant profit, no cross appeal has been filed nor in course of hearing of this appeal, from the side of the respondent No.1, any such contentions attacking the tenability of the said refusal of reliefs by the trial have been advanced. 12.For the reasons as aforestaed and in the result the judgment and decree passed by the Civil Judge (Senior Division), Keonjhar in C.S. No.11 of 2005 are hereby confirmed and the appeal stands dismissed, in the circumstances without cost. Appeal dismissed.