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2015 DIGILAW 249 (ORI)

Satyabadi Behera v. Bidyadhar Behera

2015-04-10

D.DASH

body2015
JUDGMENT D. Dash, J. 1. This appeal has been filed by the Defendants challenging the Judgment & decree passed by the Learned Civil Judge (Senior Division) 1st Court, Cuttack in C.S. No. 332 of 2003 decreeing the suit filed by the Plaintiff-Respondent No. 1 in part. The Plaintiff-Respondent No. 1 has also filed the cross-appeal with respect to the refusal part. For the sake of convenience, clarity & to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. 2. The case of the Plaintiff is that one Bandhu Behera is his father & Defendant No. 1 is his other brother. Bandhu died in the year 1955. The Defendant No. 1, who is the elder brother of the Plaintiff, had married Sabitri. It is stated that Bandhu had no such income. The Plaintiff & Defendant No. 1 started joint business & out of their income acquired some landed properties. It is further stated that the Defendant No. 1 when acquired properties in his name, he has also acquired some other property in the name of his wife. All these recorded in the name of Defendant No. 1 & his wife are claimed as the joint family properties acquired from the joint family funds. It is specifically stated that the properties described in Lot Nos. 3 & 4 of the plaint standing in the names of Defendant No. 1 & his wife are such joint family properties & are liable to be partitioned together with those described in Lot Nos. 1 & 2 with the houses standing thereon. There having been no prior partition, the Plaintiff filed the suit with the prayer for passing a preliminary decree seeking allotment of the share over the properties described in the suit schedule properties. It has been admitted in the plaint that the Plaintiff & the Defendant No. 1 for quite some time have been residing separately. The Defendant No. 1 left the house at Poporada & occupied a portion of the joint family houses at Gosala Road described in Lot No. 2 of the plaint. It is further asserted that properties therein have been let out to different tenants & the rents are misappropriated by the Defendant No. 1, who also purchased trucks & cars with the aid of the joint family, funds. It is further asserted that properties therein have been let out to different tenants & the rents are misappropriated by the Defendant No. 1, who also purchased trucks & cars with the aid of the joint family, funds. Since the demand of partition was not paid any heed to, the suit has come to be filed. 3. The Defendants contested the suit by filing the written statement. They asserted that Bandhu did not die in the year 1955, but died in the year 1946. It is also stated that the Plaintiff has got his own landed properties. It is specifically stated that the parties had mutual arrangement with regard to the enjoyment of the suit land. Accordingly, the Defendant No. 1 was in possession of the land at Gosala Road purchased by both the Plaintiff & Defendant No. 1. It is stated that the houses standing thereon were never let out to the tenants. It is further asserted that by such amicable settlement, it had been decided that Plaintiff would possess & enjoy the property & house as its owner, whereas the Defendant No. 1 would possess & enjoy the land purchased by the Plaintiff & Defendant No. 1 i.e. the Lot No. 2 of the plaint. The averment made in the plaint that the properties acquired by Sabitri had been purchased from out of the joint family funds is stoutly denied. Simultaneously, it has been pleaded that the parties have been residing separately since 1968. Alternatively, the plea of adverse possession has been set up in respect of the land in Lot No. 2 of the plaint. 4. With such rival pleadings, the Court below has framed four issues & has taken issue No. 1 for consideration at first. Within that issue all the controversies have been as appeared have been set at rest by the Trial Court. 5. In the Trial Court, the parties have led evidence. The Plaintiff when has examined one witnesses, the Defendants have examined three. The documentary evidence given from the side of the Plaintiff are the certified copies of the Record-of-Rights, concerning the suit schedule properties, whereas the Defendants have proved a number of documents such as Registered Sale Deeds with regard to acquisition of properties & also the original Record-of-Rights. 6. The Plaintiff when has examined one witnesses, the Defendants have examined three. The documentary evidence given from the side of the Plaintiff are the certified copies of the Record-of-Rights, concerning the suit schedule properties, whereas the Defendants have proved a number of documents such as Registered Sale Deeds with regard to acquisition of properties & also the original Record-of-Rights. 6. Learned Counsel for the Appellants submits that on the face of the evidence on record, the Trial Court ought not to have held that there having been prior partition since 1968 & the parties having remained separately since then under separate mess & estate, the Court below erred in law by not holding in favour of prior partition between the parties &, according to him, in view of the evidence on record being tested in the touch stone of the pleadings, the Court below ought to have accepted the long standing arrangement, as regards the possession & enjoyment of the properties described in Lot Nos. 1 & 2 of the plaint, i.e. allotment of Lot No. 1 properties to the Plaintiff & allotment of Lot No. 2 properties to the Defendant No. 1. Learned Counsel for the Respondent No. 1 while supporting the findings of the Trial Court with regard to the properties described in Lot Nos. 1 & 2 of the plaint submits that the properties described in Lot. Nos. 3 & 4 had been acquired from the joint family funds when the parties were jointly doing the business being in possession of the joint properties together. According to him, when admittedly no partition between the parties in metes & bounds is proved & they were just staying separately, the same may be taken to be an arrangement for convenience, but not to render a finding of the complete partition in metes & bounds. Therefore, he contends that in the absence of any specific plea that the Plaintiff had acquired his right to occupy the properties described in Lot No. 2 of the plaint under the exclusive possession of Defendant No. 1 a mere finding that the Defendant No. 1 was residing there for a long time cannot be taken as the circumstance to infer the partition by metes & bounds. He also submits that the Court below ought not to have found the land described in Lot Nos. 3 & 4 as not liable for partition. He also submits that the Court below ought not to have found the land described in Lot Nos. 3 & 4 as not liable for partition. Learned Counsel for the Respondent No. 1 submits that in the present case, the findings of the Court below with regard to the nature of the properties described in Lot Nos. 3 & 4 of the plaint is based on due & proper appreciation of evidence keeping in view the settled position of law & there remains no ground to interfere with the same. 7. With the above rival submissions, this Court is called upon to judge the sustainability of the finding on the issue No. 1 as to whether the properties as described in Lot Nos. 1 & 2 of the plaint are all liable to be partitioned or which of the other items of the properties are liable for partition & which are not liable to be partitioned. Simultaneously, it has to be seen as to if, there was a prior partition in metes & bounds as asserted by the Defendant No. 1 impacting upon the maintainability of the present suit for partition. 8. Admittedly, the properties described in Lot Nos. 1 & 2 of the plaint are standing in the name of the Plaintiff & Defendant No. 1. As regards the nature of properties, there is no denial that these are the joint family properties & the properties are liable for partition. The Trial Court has negated the claim of the Defendants so far as these properties are concerned on the basis of the claim of prior partition as per the said arrangement between the parties with regard to allotment of Lot No. 1 in favour of the Plaintiff & that of Lot No. 2 in favour of Defendant No. 1 & its continuance for quite long period. 9. The position of law is well settled that mere separation between the parties, does not amount to partition in metes & bounds. The separate enjoyment of the properties, separate share noting, separate payment of rent may often lead to infer separation for convenience, but cannot be taken to be partition in metes & bounds. 9. The position of law is well settled that mere separation between the parties, does not amount to partition in metes & bounds. The separate enjoyment of the properties, separate share noting, separate payment of rent may often lead to infer separation for convenience, but cannot be taken to be partition in metes & bounds. Therefore, even accepting for a moment that with the arrangement in the year 1968, the parties started to possess separately, but that itself is not sufficient to come to hold prior partition in metes & bounds, so as to deny the Plaintiff in respect of his relief of partition so far the properties under Lot No. 1 & 2 are concerned. Had it been the projected defence that the Plaintiff would have acquiesced his right over the Lot No. 2 properties, which are in possession of Defendant No. 1, by specifically abandoning or waiving all his right & interest or would have relinquished the interest in the same in favour of the Defendant No. 1, the matter would have been viewed accordingly, if the evidence on record would have been upto that satisfaction. But that is not the case here. Neither any pleading is there to that effect nor any evidence has been adduced in that regard. Therefore the submission of the Learned Counsel for the Appellant that the findings of the Trial Court that the properties described in Lot Nos. 1 & 2 are liable to be partitioned is unsustainable & thus fails. 10. Next coming to the defensibiiity of the findings of the Trial Court in respect of properties under Lot Nos. 3 & 4 & their nature, it is felt apposite to take note of the settled position of law that there is no presumption that the family, because it is joint, possesses joint property & when in a suit for partition, a party claims that any particular item(s) of property held by an individual member is the joint family property, the burden of proof that it is so, rests upon the party asserting the same. Existence of joint family does not raise a presumption that it owned the joint family property. Existence of joint family does not raise a presumption that it owned the joint family property. But when such nucleus is either proved or admitted, when from its nature & relative value, it could be inferred that such property could have been acquired, the burden shifts to the parties alleging self-acquisition & he must establish affirmatively that such property was not acquired with the aid of the joint family. In order to raise the presumption that a property acquired by a member of a joint Hindu Family is a joint property not only should the nucleus be established as sufficient for the acquisition of the property but it should also be established that it was available to the acquirer. There may be presumption that there is Hindu joint family, but there can be no presumption that the joint family possesses joint family properties. Thus, there is no presumption of a property being joint family property only because of existence of a joint Hindu family. The one who asserts has to prove that the property is joint family property. Further the persons so asserting has to prove that there was a nucleus with which the joint family could have acquired the property, there would be presumption that the property is joint when only the onus shifts on the persons who claims to have acquired the property to prove that he purchased the property with his own funds & not out of joint family nucleus that was available. As regards purchase of the property in the name of a female member of a joint Hindu family being claimed that the property was acquired from joint family funds, the burden lies on the party who asserts to establish the nucleus & availability of such joint family funds for acquisition of property & the burden does not shift. No presumption arises that the property belongs to the joint family as the property stands in the name of the female member of the family. In this case except the oral evidence, no documents are forthcoming from the side of the Plaintiff to show that such acquisition in the name of the Defendant No. 1 & his wife were from the joint family fund. Nothing has been stated as to what was the quantum of consideration for the same. In this case except the oral evidence, no documents are forthcoming from the side of the Plaintiff to show that such acquisition in the name of the Defendant No. 1 & his wife were from the joint family fund. Nothing has been stated as to what was the quantum of consideration for the same. No explanation has been given as to why properties were allowed to be purchased by the Defendant No. 1 & his wife also no further conduct in that light is shown so as to consider about the dealing of the said properties. Separate living in different house specified shares recorded in revenue papers, separate business, acquisition of separate properties in the names of different names of the family & this state affairs when even is continuing for decades no go to prove the separation in status but do not prove any previous partition. Moreover in the present case, prior to the acquisition of such properties, the father of the Defendants had died & the purchases are of the year 1958 & 1970. The difference of age between the two brothers is 2 to 3 years. All these when cumulatively viewed stand to the contrary as regards the purchases being made for the benefit of all & that said properties are as such the joint family properties. In that view of the matter, this Court finds no justifiable reason to disturb the above findings of the Trial Court which appears to have been the outcome of just & proper appreciation of evidence on the backdrop of rival pleadings & in conformity with the position of law as discussed above. In the result, the appeal as well as the cross-appeal stands dismissed. No order as to cost.