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2016 DIGILAW 172 (ORI)

Bhagabata Mohanty v. Khagendra Mohanty

2016-03-02

D.DASH

body2016
JUDGMENT 1.This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Balasore in Title Appeal No. 11 of 1996 confirming the judgment and decree passed by the learned Civil Judge (Jr. Divn.), Nilgiri in Title Suit No. 17 of 1993 in dismissing the suit filed by the present appellants as the plaintiffs. 2.For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the Courts below. 3.Plaintiff’s case is that the property described in schedule ‘Kha’ of the plaint is the ancestral properties of the parties. One Kanehi was their common ancestor. He died leaving behind his two sons namely, Faka and Raghu. It is stated that Faka and Raghu were living separately prior to their death. Though there was no partition in metes and bounds, Faka and Raghu having 10 manas of ancestral property and they were getting around four manas of paddy as surplus after meeting the expenditure of the agricultural as well as for the family. They had a grocery shop over the ancestral property and were managing the same jointly. Raghu is said to be acting as the karta of the family as Faka was remaining outside being in police service till 1942. Raghu on 16.11.1938 got the permanent lease in respect of lot no. 2 property under schedule Kha of the plaint and it is stated that the same was received on lease utilizing the surplus income of the joint family and the salami for the same was also being paid from out of it so also the rent. Thus it is stated that the suit property is also the joint family property and it was being treated as such and remained in possession of the plaintiffs (legal heirs of Faka) as well as the defendants (legal heirs of Raghu). It is alleged that Raghu was looking after the property during the last major settlement on his behalf as also on behalf of the Faka and he got this lot no. 2 property’s property the rent schedule prepared in his name exclusively. In view of that, the defendants threatened the plaintiffs with dispossession from out of lot no. 2 property which was recorded in the name of Raghu in Suo Moto Case No. 755 of 1978. 2 property’s property the rent schedule prepared in his name exclusively. In view of that, the defendants threatened the plaintiffs with dispossession from out of lot no. 2 property which was recorded in the name of Raghu in Suo Moto Case No. 755 of 1978. The plaintiffs then obtained the certified copy of the said case on 23.03.93 and came to know about it for the first time. It is stated that the said land ought to have been recorded jointly. So they claim half share over the lot no. 2 property. Lot no. 1 property is said to be the ancestral homestead land of the parties. It is further asserted that Raghu damaged his portion of ancestral house standing over lot no. 1 and stayed in village Nijgarh after constructing a house since 10 years prior to his death. The said properties stand recorded jointly in the name of Faka and Raghu with the right of Chandana in the major settlement. But as Raghu has not taken care of the house over the ancestral homestead i.e. lot no. 1 property and left the place, the plaintiffs requested him for partition of all the properties. The defendants having declined to accept the said request, the suit for partition came to be filed. 4.The defendants in their written statement stated that the common ancestor Kanehi died in the year 1925 and after his death Raghu and Faka lived jointly for a short period. Thereafter as dissention arose between them they partitioned their ancestral properties by metes and bounds by way of family arrangement in the year 1932-33 and as such they remained in possession in respect of the separate portions of the properties that came to their respective share. Lot no. 1 property is said to have been divided equally between Faka and Raghu and accordingly separate houses have been made over the same and they continued to live as such. It is further stated that they have transferred properties to different persons at different time from out of their share in separate possession. Further case of the defendants is that Raghu was offering flowers to the deity Baidyanath Mahadev and was earning some amount from said source. Raghu is also said to have established a shop on the said land and as such maintaining his family from out of his income. Further case of the defendants is that Raghu was offering flowers to the deity Baidyanath Mahadev and was earning some amount from said source. Raghu is also said to have established a shop on the said land and as such maintaining his family from out of his income. They completely deny Faka’s right, title, interest or possession over the lot 2 land. It is stated further that lot 2 property got vested with the State after abolition of Zamidari and in the suo motu case recorded in the name of Raghu who got the patta in his name and had obtained the rent receipt and the permanent lease within the full knowledge of Faka. It is also stated that Faka has obtained Ac. 0.62 dec. 5 links in village Jamudia. When Faka has exclusively the owner of the said plot he sold he same to defendant nos. 1 to 2 on 7.3.62 by registered sale deed on receipt of valuable consideration. They assert that lot 1 property had already been partitioned since 60 to 70 years and there had been in separate enjoyment of Raghu and Faka and thereafter by the plaintiffs and defendants. In that way they challenge the maintainability of the suit for partition while denying in specific, the partiability of lot 2 property. 5.In view of such rival pleadings the trial Court framed eight issues. Taking up issue no. 1 as regards the entitlement of the plaintiffs to a partition decree as prayed for, upon analysis of evidence both oral and documentary, conclusion has been reached that there being a previous partition between the parities the relief as prayed for cannot be granted. Then coming to the next issue as regards the partiability of the property described in lot 2 of schedule Kha of the plaint, taking into consideration the evidence as also the ratio of the decision of this Court answer has been rendered against the plaintiffs. Findings on these two issues has ultimately led to the dismissal of the suit. 6.The plaintiffs being aggrieved by such order of dismissal of the suit for partition, carried an appeal under Section 96 of the Code of Civil Procedure. The appeal having also been dismissed, now they are before this Court in this appeal under Section 100 of the Code of Civil Procedure. 7. 6.The plaintiffs being aggrieved by such order of dismissal of the suit for partition, carried an appeal under Section 96 of the Code of Civil Procedure. The appeal having also been dismissed, now they are before this Court in this appeal under Section 100 of the Code of Civil Procedure. 7. The appeal has been admitted on the substantial questions of law as indicated in paras-4 and 5 of the memorandum of appeal which run as under :- “4. Whether the ancestral homestead property even if possessed by co-sharer for their convenience can be partitioned if it had not been partitioned by metes and bounds? 5. Whether the immovable property which is purchased or is taken on lease by paying the money from combined fund from the joint family shall be treated as joint property or separate property of the members of family when the lot no.2 property is taken on lease out of the joint fund of Faka and Raghu is it justified to record the whole lease property in the name of Raghu to the execution of Faka or his heirs?” 8.In the case in hand there remains the concurrent finding of fact so far as issue nos. 1 and 2 are concerned. Issue no. 2 concerns with the nature of land under lot no. 2 whether it is the separate property of Raghu or is the joint family property and issue no. 1 concerns with the maintainability of the suit in view of the challenge made by the defendant that there was prior partition. 9.Learned counsel for the appellants during hearing of this appeal has confined his submission so far as issue no. 2 is concerned, on the substantial questions of law as indicated above which relate to the finding on issue 2 alone. It is his contention that when there was no partition in metes and bounds between Faka and Raghu and the evidence on record show that the lease was granted during the period and the property received on lease has been treated as such all along as the joint family property so far as the possession, enjoyment etc. are concerned, the Courts below have erred in law by rendering the finding that it is not the joint family property. Learned counsel respondents submits that when the said lot no. are concerned, the Courts below have erred in law by rendering the finding that it is not the joint family property. Learned counsel respondents submits that when the said lot no. 2 property has been granted on lease to Raghu the same cannot be treated as the joint family property under any circumstances even if it is said for a moment that the parties were then living in joint family and as its member under joint mess and estate. 10.Facts stand admitted that the Tahasildar –Cum-OEA Collector in Suo Motu Case No. 755 of 1975 by specific order which has been admitted in evidence and marked as Ext. 3 granted the lease in view of the Government order on the basis of the application of Raghu and it also stands admitted that Raghu was allowed with the lease by virtue of the said order so far as lot no. 2 property is concerned. Rent schedule Ext. B has been issued in favour of Raghu basing upon which the order has been passed in the said suo motu case. Record of right goes to show necessary correction to have been made and lot no. 2 property has exclusively been recorded in the name of Raghu. It further reveals from those records that Raghu was an applicant for settlement of lot no. 2 land in his favour within the extend period as provided in the Government order for the purpose of settlement of land on lease in favour of those persons who had not been settled with the land under the provisions of the OEA Act during the time period as provided for the same. 11.Position of law is no more res integra that after abolition of the intermediary interest, the rights of the intermediary came to an end and thereafter a settlement in favour of the party made by the Estates Abolition Collector confers a new and independent title in favourof the settles. It is also the settled position of law that in case of such settlement being made in favour of one co-sharer the said settlement would ensure to the benefit of all the co-sharers. Reference in this connection may be made to the case of “Md. Yakub Ali and another vs. Md. Shibli and another” 53 (1982) CLT 600. It is also the settled position of law that in case of such settlement being made in favour of one co-sharer the said settlement would ensure to the benefit of all the co-sharers. Reference in this connection may be made to the case of “Md. Yakub Ali and another vs. Md. Shibli and another” 53 (1982) CLT 600. It has been held in case of Srimati Malati Mishra vs. Basanti Devi and others-1988 (1) OLR 520 that under the Government order, the land which had been vested to the State Government if is settled with the applicant which is the in nature of a lease under certain terms and conditions stipulated in the Govt. order, it is obviously not a settlement under the Orissa Estates Abolition Act and the settlement being made on charging a salami equivalent to three times the annual rent, the principle that a settlement in favour of one of the co-sharer would ensure to the benefit of other co-sharers will not come into play for being applied to those case. Even though one of the conditions for entertaining an application is that the individual must be who is entitled to file an application under the Orissa Estates Abolition Act, but the fiction that application by one and settlement in favour of him would ensure to all, cannot apply as the settlement is in not as per OEA Act but as per the lease principles. 12.The lower appellate Court relying upon the aforesaid decision has held the settlement as has been made in favour of Raghunath Mohanty by way of lease during the period provided under the Govt. order to be not a settlement under the OEA Act. So that lot no. 2 property is held to be the exclusive property of Raghu. In view of that it has given the seal of approval of the finding of the trial Court on issue no. 2. In this case the documentary evidence reveal that the settlement is not under the provisions of OEA Act but here it is based on the lease principle as per the Govt. order. So the principle that settlement in favour of one co-sharer would ensure to the benefit of all is not coming to the rescue of the plaintiff and that has no application since the settlement is not under the provisions of OEA Act. order. So the principle that settlement in favour of one co-sharer would ensure to the benefit of all is not coming to the rescue of the plaintiff and that has no application since the settlement is not under the provisions of OEA Act. The settlement being on the basis of the lease principle, the lessee is recognized by the lessor and not his co-sharer as lessees even though he at the time of lease had been living in the joint family together with other members and was joint in both mess and estate. Thus this Court finds said finding to be wholly in consonance with the settled position of law. Further more in this case the trial Court on detail analysis of evidence has held that there was prior partition between the parties. The lower appellate Court on independent analysis of the evidence has not been able to take a view to the contrary. When it has found that lot no. 1 land is possessed half and half by the plaintiffs and defendants and that both sides have alienated property in their possession and further more the admitted case is that parties are residing separately for last 30 years. On carefully going through the evidence on record, this Court is unable to find out any perversity in said finding or even that the conclusion is unreasonable or against the weight of evidence on record. The substantial questions of law thus receive their answers accordingly which run against the appellants. 13.Resultantly, the appeal stands dismissed and in the facts and circumstances of the case without cost. Appeal dismissed.