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2016 DIGILAW 1008 (ORI)

Purusottam Pati v. Soria Dei

2016-11-01

D.DASH

body2016
JUDGMENT : The plaintiffs being aggrieved by the judgment and preliminary decree passed by the learned Subordinate Judge, Jajpur in Title Suit No. 32 of 1985 have filed this appeal. It is pertinent to state here that appellant nos. 2 and 5 having died, the legal representatives of appellant no. 2 have been brought on record and name of appellant no. 5 has been expunged as dead. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiffs case is that, one Bauri Pati was the common ancestor of plaintiffs and defendant no. 1 to 15. He had three sons namely, Banamali, Sanei and Khetrabasi. Sanei having died issueless, his interest was succeeded by two surviving brothers. Hari is Banamali’s son and his two sons are Benu and Dama. Plaintiff no. 5 is the widow of Rama, whereas plaintiff nos. 1 to 4 are the legal heirs of Dama. Khetrabasi’s three sons are Hadibandhu, Padan and Nabin. Defendant no. 4 to 15 represent Hadibandhu’s branch; defendant no. 2 to 8 represent Padan’s branch and defendant no. 10 to 12 represent Nabin’s branch. Other defendants have been arraigned as transferees of some properties from the co-sharers. Land described in schedule A of the plaint is said to be ancestral homestead whereas those in Schedule-B are the ancestral agricultural lands. It is said that the plaintiffs representing branch of Banamali have 8 anas of share and defendant no. 2, 8, 10, 11, 12, 14 and 15 representing the branch of Khetrabasi are having their interest over the rest half. It is stated that the suit lands have not been partitioned by metes and bounds and the parties are in separate mess and estate by an amicable arrangements since long for which their possession finds noted in the record of right. It is also stated that for some legal necessity, some co-sharers have sold some portion of the lands to others. Similarly, the plaintiffs also claim to have purchased lands from other co-sharers under various sale-deeds and are in possession of the same with their earlier possessed lands. It is alleged that in the year 1985, during summer, the defendant no. It is also stated that for some legal necessity, some co-sharers have sold some portion of the lands to others. Similarly, the plaintiffs also claim to have purchased lands from other co-sharers under various sale-deeds and are in possession of the same with their earlier possessed lands. It is alleged that in the year 1985, during summer, the defendant no. 1 to 15 tried to create disturbance in the possession of the plaintiffs with respect to the homestead land by making some permanent construction by force. So, the plaintiffs demanded for amicable partition in metes and bounds. As it was not responded to, they filed the suit for partition. It is also alleged that during pendency of the suit in violation of an order of status-quo, the defendant no.10, 11 and 12 constructed a pucca building encroaching upon a partition of the land under possession of the plaintiffs. 4. The defendant no. 3, 4, 8, 10, 11 and 12 in their written statement while traversing the plaint averments pleaded that the northern side homestead adjacent to the road is 190 links in length and that the plaintiffs have their house and a cowshed on the eastern side over 50 links, but they have a khanja house to the west of their house which is 100 years old. So, when that house was damaged on 30.06.1982, they constructed a pucca house from March, 1983 with plinth of 60 links east-west and 55 links north-south for seven rooms with two verandah and completed construction of three rooms the northern side by January, 1984 and the other rooms were constructed up to the plinth level. 5. On such rival pleadings, the trial court framed fours issues which are the following:- ISSUES 1. Is the suit for partition maintainable and if so, to what extent of share in the suit properties are the plaintiffs entitled? 2. Whether D. 10, 11 and 12 constructed the pucca house over their area prior to the institution of the suit or constructed the pucca house extending over the area of the plaintiffs after institution of the suit? 3. Have the plaintiffs cause of action? 4. To what relief, if any, are the plaintiffs entitled? 6. Rightly, taking up issue no. Whether D. 10, 11 and 12 constructed the pucca house over their area prior to the institution of the suit or constructed the pucca house extending over the area of the plaintiffs after institution of the suit? 3. Have the plaintiffs cause of action? 4. To what relief, if any, are the plaintiffs entitled? 6. Rightly, taking up issue no. 1 and 3 for decision in view of the case as projected by the parties, upon examination of the evidence and the documents, it has found that the plaintiffs are entitled to half share over the suit property and the purchased lands under Ext. 1 and 6. Similarly, it has found the defendant no. 2 to 8, 10, 12, 14 and 15 to be entitled to the rest with their purchased land from their respective vendors. Next going to issue no. 2 as regards construction of the pucca house over the area and the time of construction whether before the suit or after, on going through the evidence let in by the parties, a clear finding has been recorded that the contesting defendants have constructed the pucca house prior to the suit and as such are entitled to same in the partition. 7. In this appeal, the grounds which have been taken are-all those which practically question the answer recorded by the trial court on issue no. 2. It is found that the plaintiffs are aggrieved by the order of the trial court as regards the allotment of the pucca house constructed by the contesting defendants towards their share in the partition. 8. The defendants in their written statement at para -4 have pleaded that the co-shares are in possession of the allotted land separately by separate enclosures. They as such are exercising exclusive right in the land, keeping with the enclosure. They have planted valuable fruit bearing trees over their allotted homestead land and they possessed the land as their exclusive property. It is also said the oral partition has been accepted by the co-sharers included plaintiffs and defendants and also much before by the predecessors who were possessing the land in the same manner. They have appended a sketch map showing separate possession to the written statement. It is also their case that the co-sharers have raised separate construction in their separately possessed land. The said partition is said to have been 70 years before. They have appended a sketch map showing separate possession to the written statement. It is also their case that the co-sharers have raised separate construction in their separately possessed land. The said partition is said to have been 70 years before. It is also their case that the plaintiffs are accordingly in possession of the land and have made constructions. They have also acquired further lands and amalgamated those with the adjacent allotted lands. It is further pleaded that they have put separate enclosure for the allotted land including the purchased land. The purchased lands and the allotted lands together have been kept within one enclosure. 9. In para -8 of the written statement, the followings have been stated:- “8. That the house of the parties faces north. The village path passes in the north. The ancestral house was on the north-eastern corner of the homestead area. That area was allotted to the plaintiffs branch. The said house is no longer there. The plaintiffs ancestor have constructed a Khanja house there. The plaintiffs reside there with their family. The residential thatched house constructed by the defendants ancestors is existing just to the contiguous west of the house of the said plaintiffs. Thereafter, the ancestors have constructed another thatched house to the west of the said Khanja house of the defendants and were residing there. That house collapsed in 03.06.1982-Cyclone. So the defendants no. 10, 11 and 12 made arrangements to construct a building there. The building was planned to be constructed with 7 rooms, one outer verandah, one inner verandah and two passages. The foundation was laid in March 1983. The plinth level work was finished in June 1983. The northern block of the building consisting of 4 rooms outer verandah and a passage was completed in June 1984. There defendants 10 and 12 are now residing in that block. The southern three rooms, the inner verandah and the other passage is yet to be complete. But the plinth work of that southern portion is complete since June 1983. The injunction order was served on these defendants. Hence the construction work of that southern portion is stopped. The flooring of the western two rooms of the northern block is not complete. Also the plastering of the walls of the said two rooms are partially complete. 10. But the plinth work of that southern portion is complete since June 1983. The injunction order was served on these defendants. Hence the construction work of that southern portion is stopped. The flooring of the western two rooms of the northern block is not complete. Also the plastering of the walls of the said two rooms are partially complete. 10. Learned counsel for the appellants submits that the trial court ought not to have passed an order holding the entitlement of the disputed pucca house by the defendants in the partition and that is against the weight of evidence in complete violation of the principles of equity. He also challenges the factual finding recorded by the trial court that the construction was prior to the suit and according to him rather the finding ought to have been that said construction was during the suit. 11. Learned counsel for the respondents contends that the plaintiffs having their permanent house over a portion of the suit properties have now been unnecessarily and unreasonably running after these defendants. According to him, the finding recorded by the trial court is based on just and proper appreciation of evidence on record. 12. In order to address the rival submissions and judge the sustainability of the finding of the trial court on issue no. 2, let me straight way go to the evidence. Plaintiff No. 1 as P.W. 1 at para-4 has stated as under:- “4. The northern side east west length of plot no. 1432 and 1434 is 190 links. By the time of filing the suit there was no house standing over the above plots. The road is at the north of the plots. We are in possession of 95 links and the defendants are in possession of the rest 95 links. We are in possession of 50 links at the east and to the west of the same the defendants are in possession of 95 links. We are in possession of the rest 45 links prior to the suit. Since the defendants created disturbance in our possession by trying to construct a house, we filed the suit on our application temporary injunction directing both sides to maintain status-quo was granted. During the said order in force, the defendants constructed a house over the aforesaid plots in the summer vacation of 1985. Since the defendants created disturbance in our possession by trying to construct a house, we filed the suit on our application temporary injunction directing both sides to maintain status-quo was granted. During the said order in force, the defendants constructed a house over the aforesaid plots in the summer vacation of 1985. The house was a pucca house consisting of 4 rooms with R.C.C. roof. They have also laid foundation for construction of three rooms of the building. They constructed the building by encroaching upon our 45 links of land at their west. After construction, I took a pleader commissioner through court who after local enquiry submitted his report.” However, during cross-examination, he has not been specific about the area and location of possession of the homestead by the parties. He also clearly admitted that there was no measurement of the homestead land and flatly denies of being able to say the length and breadth of the plot nos. 1432 and 1434. The trial court has observed that this witness was referring to the sketch map filed by the contesting defendants about the area of homestead land in possession of the parties and then stating. For better appreciation, the relevant portion of the evidence recorded during cross-examination may be reproduced :- “6. There was no measurement of the homestead land I cannot say the length and width of 1434 nor those of plots No.1432, I cannot say the dimensions of the road existing at the east of my house. The entire northern side of the plots by the side of the road has been occupied by the house constructed. I cannot say the length and width but from the sketch map filed by the defendants the east-west length of my house is 50 links. That is our ancestral house. There is a thatched khanja house at the west of that house. I cannot say the length and width of that thatched house. But from the sketch map filed by the defendants I came to know that it is 95 links east-west in length. The pucca house constructed by defendants would be 50 links to 55 links in length east-west. The pucca house is having plinth for two rows of houses. The northern portion of the house consists of 3 rooms a verandah and a small room and the southern portion is having 3 rooms up to plinth level. The pucca house constructed by defendants would be 50 links to 55 links in length east-west. The pucca house is having plinth for two rows of houses. The northern portion of the house consists of 3 rooms a verandah and a small room and the southern portion is having 3 rooms up to plinth level. There is foundation for a verandah in between the north and south portion. The foundation is by stones and not by concrete. In the completed portion a concrete level has been laid over the plinth. At the lintel level a concrete layer has been laid. There are two cement concrete pillars at the north side verandah. There is no concrete beam over the pillars and the verandah on the side of the road. 7. The path in between the thatched house and the pucca houses is 5 link in width. The foundation of the pucca house is 45 links in length including the incompleted plinth plot 1434/1460 was cultivable land but since 10-15 years he have planted trees thereon. The homestead lands are possessed by us separately to the time of over interests with specific portions. Plot No. 1434/1460 has also been separately possessed by both sides in specific portions. We the plaintiffs are in possession at four places of the four plots nos. 1432, 1433, 1434 and 1434/1460. The defendants are in possession at three places of the above 4 plots. The defendants have got their thatched house on plot no.1433 which is south of the middle thatched khanja house. Both are adjoining with their roof. The areas of possessions in the sketch map filed by the defendants are not correct. I have not measured the homestead after filing of the sketch map. It is not a fact that the defendants have constructed the pucca house prior to filing of the suit and that they were having their old khanja house over the said land which was damaged and that the old khanja house belonging to them was in existence at the time of separation in mess in 1920 and that they constructed and completed their pucca house by June 1983. March and that the sketch map filed by the defendants are correct as per possession at the spot and that the 8 of P.W.1 the possession are under separate enclosures. March and that the sketch map filed by the defendants are correct as per possession at the spot and that the 8 of P.W.1 the possession are under separate enclosures. There is road at the west of the homestead leading to Kharasuan river bank. We have got lands at the west of the road. That land is also Bari land. I have planted trees at the southern portion. The river embankment is at the west of the homestead. It is not a fact that the land over which a portion of the pucca house stands to the extent of 45 links was not under our possession. We have dug well and a rectangular wall in our homestead. The defendants have dug a tube well about one north back. Plot No.1435 is adjacent to the homestead and also the road leading to river embankment. The defendants purchased plot No.1436 to the south of plot No.1435.” In such state of affairs, I do not find any reason to record a finding that the evidence of this witness as regards the period of construction as stated is acceptable. The evidence appears to be in suppression of the advantages that this witness is having in possessing the land which ought to have been placed for the court to measure the comparative hardship. Moreover, P.W. 2 and 3 have failed to say the required details of the suit land; even as to when the construction of the pucca house commenced and when it got completed. P.W. 2 rather states that the parties are in separate possession of specific portion of homestead lands. On the other hand, the defendants have consistently stated that the construction commenced over the portion where the ancestral house was there after it collapsed in the cyclone in the month of March 1983 and it was completed in June 1984. So, this court being not in a position to arrive at a different conclusion finds all the reasons to affirm the finding of the trial court on this issue no. 2. 13. So, this court being not in a position to arrive at a different conclusion finds all the reasons to affirm the finding of the trial court on this issue no. 2. 13. When we look at the order of the trial court it has also stated in the order through a clear expression therein that in case of failure of the parties to effect the mutual partition, it would be so effected if any of the parties makes an application by allotment of the share over the land as determined respecting previous possession viewing the convenience of the parties and considering other equitable factors as far as practicable. So, now with the finding being set at rest in so far as the controversy giving rise to issue no. 2, the partition would be effected looking at all those above aspects when the court would also take other equitable factors in to consideration. Thus the judgment and preliminary decree as passed by the trial court are not liable to be interfered with in this appeal. 14. Resultantly, the appeal stands dismissed. In the peculiar facts and circumstances of the case, the parties however are directed to bear their respective costs throughout.