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2016 DIGILAW 351 (ORI)

Gopal Charan v. Kamadev Mallick

2016-05-03

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Jajpur in Title Appeal No. 34 of 1994 setting aside the judgment and decree passed by the learned Civil Judge (Junior Division), Jajpur in T.S. No. 366 of 1989. The appellant as the plaintiff had filed the suit for partition of the land measuring Ac0.07 decimals under plot no. 1899 khata no.110 of mouza Kelanga and claiming allotment of eastern side portion of the land extending to Ac0.01 decimals 7½ links to him towards the share of his vendor. The suit having been decreed granting relief to the appellant-plaintiff under section 4 of the Partition Act to repurchase the said land from the defendant-respondent no.2, the appeal had been filed by the aggrieved plaintiff. The appeal and the suit for partition having been allowed, the present Second Appeal has been filed by the un-successful defendant no.2. He having died during pendency of this appeal, his legal representatives are pursuing the appeal. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below. 3. Plaintiff’s case is that originally the suit recorded in the name of Netrananda Biswal. He died leaving behind his three sons, namely, Nityananda; defendant no.1, Gopal; defendant no.2 and Govinda who is the father of defendant nos. 3 to 5. It is stated that the ancestral dwelling house of the plaintiff is situated adjoining the suit land on its eastern side. The suit land on a particular portion adjoins the ancestral land of the plaintiff extending to Ac0.01 decimals 7½ link was lying vacant. In the year 1969, the plaintiff with his co-sharers had partitioned his own homestead land and the dwelling house. At that time it was detected that the ancestral dwelling house with the cowshed of the plaintiff’s family was covering a portion of land measuring Ac 0.01 decimals 7½ links of the land owned by Netrananda. It is stated that said land was thus in possession of the plaintiff’s father and thereafter with the plaintiff. When this fact came to light, the defendant no.1 and Govinda agreed to sell the said land in favour of the plaintiff. So, a registered sale deed was executed on 25.06.1969 on receipt of agreed consideration. It is stated that said land was thus in possession of the plaintiff’s father and thereafter with the plaintiff. When this fact came to light, the defendant no.1 and Govinda agreed to sell the said land in favour of the plaintiff. So, a registered sale deed was executed on 25.06.1969 on receipt of agreed consideration. The suit land was accordingly mutated in the name of the plaintiff on the strength of said purchase. It is alleged that some time during the month of December, 1989, defendant no.2 created disturbance in possession of the plaintiff over the suit land. So, the suit for partition had to be filed by the plaintiff so as to avoid any such unpleasant situation and dispute in future. 4. The defendant no.2 while traversing the plaint averments has averred that the land standing recorded in the name of Netrananda was all along being used as bari of the joint family and they had also a cowshed over it. When defendant no.2 remained behind the bar having been arraigned in a criminal case from the year 1964 to 1971, he could not do anything over the suit land. However, after his release, he constructed a house over the suit land and have been residing over there. He denied the factum of encroachment of the land by the plaintiff’s father and that to have been continued by the plaintiff. He attacked the registered sale deed as collusive and nominal one coming into being during his absence and taking the advantage of the same. He denies his total knowledge about the said registered sale deed. It is his case that the plaintiff had never acquired the right, title, interest or possession over the suit land on the strength of said sale deed. Ultimately, it is stated that the sale deed if found to be valid, the land being part of the undivided dwelling house of the joint family of the defendants and he being ready and willing to pay the market price of the same is entitled to get the relief of repurchase. Also the claim remains in the alternative that he having been in possession of the land though claimed to have been purchased from the plaintiff from the year 1973 onwards openly, peacefully and continuously without any interruption from any quarter, has thus perfected his title over it by adverse possession. The defendant nos. Also the claim remains in the alternative that he having been in possession of the land though claimed to have been purchased from the plaintiff from the year 1973 onwards openly, peacefully and continuously without any interruption from any quarter, has thus perfected his title over it by adverse possession. The defendant nos. 6 and 7 stated to have never been in possession of the suit land. It is their case that in the year 1966 Nityananda being in dire need of money, requested them to arrange loan by executing the sale deed for the purpose of security in favour of the lender for its reconveyance on repayment of the loan. Therefore, such sale deed was executed and registered on 24.08.1964. On 14.04.1973 the defendant no.1 returned the amount and consequently defendant nos. 6 and 7 also returned the documents which they had kept for the purpose of security endorsing thereon the factum of acknowledgement of receipt of money. It is stated that defendant nos. 1 to 5, the co-sharers are in occupation of land on the northern portion of the suit land and defendant no.2 has the residential thatched house on the eastern most portion of the suit land. 5. Faced with such rival pleadings, the trial court framed five issues and then is found to have rightly gone to decide issue nos. 3 and 4 at first as that practically decide the fate of the suit and also the claim of repurchase as advanced by the defendant no.2. Upon analysis of evidence and in the back drop of pleadings of the parties, it has found the defendant no.2 to be entitled the relief of repurchase of the property covered under the registered sale deed standing in favour of the plaintiff under Ext.I. Next proceeding to return the decision of issue no.4 accepting the factual aspects, it has found the defendant no.2 to be entitled to 1/3rd share each over the suit land and defendant nos. 3 to 5 to be jointly entitled to 1/3rd share over it. The other issues have been recorded as consequential to the above. 6. The lower appellate court has reversed the most important finding of the trial court on issue nos. 3 to 5 to be jointly entitled to 1/3rd share over it. The other issues have been recorded as consequential to the above. 6. The lower appellate court has reversed the most important finding of the trial court on issue nos. 2 and 3 on the basis of the pleadings as well as the evidence on record viewing the long standing conduct of the parties practically with regard to the enjoyment of the property, its manner and further long lapse of time in allowing such enjoyment stretching over a period of five decades as also looking to the surrounding circumstances in finally holding that the right under section 4 of the Partition Act is no more available to be exercised by the defendant no.2. Accordingly, the claim of defendant no.2 for repurchase of the particular land covered under sale deed Ext.1 in favour of the plaintiff has been negated and the plaintiff’s suit has been decreed granting the relief as prayed for. 7. The appeal although has been admitted by order dated 14.10.1998, yet inadvertently no such substantial question of law had been framed as is seen from the order sheet. Therefore, at the outset of hearing, the substantial questions of law have been framed as found to have surfaced for being answered in this appeal. 7. The appeal although has been admitted by order dated 14.10.1998, yet inadvertently no such substantial question of law had been framed as is seen from the order sheet. Therefore, at the outset of hearing, the substantial questions of law have been framed as found to have surfaced for being answered in this appeal. I have heard the learned counsel for the parties on these substantial questions of law which are the followings:- (1) “Whether the right of repurchase as provided under section 4 of the Partition Act is available to be exercised by a co-sharer/co-sharers who allows the stranger purchaser in possessing the part of the dwelling house belonging to an undivided family by purchasing the same from another co-sharer/co-sharers and enjoying as such for quite a long period and that too without any objection at any point of time in continuing to occupy the portion of the dwelling house viewed with other conduct on his/their part by not raising any objection when even the stranger purchaser has amalgamated the purchased portion with his own adjoining land making it a part of his own dwelling house?, (2) Whether the right to repurchase as provided under section 4 of the Partition Act is available to be exercised by a co-sharer/co-sharers in respect of a portion of dwelling house belonging to an undivided family which having remained under encroachment of the stranger purchaser since long has at last been purchased when the encroachment got detected and came to be known to the parties? 8. Learned counsel for the appellant submits that the view taken by the lower appellate court in declining the relief of repurchase of the land covered under Ext. I in favour of the plaintiff is based on factum of long possession of the plaintiff so far as the suit land is concerned, and the subsequent conduct of having allowed the plaintiff to remain in such possession from the year 1969 till he sought for the relief of repurchase of the suit land in the year 1989, is untenable in the eye of law, in view of the settled position of law, such a relief of repurchase can only to be sought for in a suit for partition of the dwelling house belonging to undivided family being filed by the stranger-purchaser. Thus according to him, there being no occasion for the defendant no.2 to raise his claim of repurchase the factor of lapse of time is immaterial and has no legal impact much less to say in negating the claim. According to him, the lower appellate court has erred in law by relying on such circumstances such as long enjoyment of the property by the plaintiff and the act on his part in amalgamating the same with his own homestead as also the conduct of the defendant no.2 in allowing the same to be done by the plaintiff without any demur which are of no significance in the eye of law. Thus he contends that the lower appellate court without any justification has erred both in law and fact by going to decline the relief of repurchase to the defendant no.2 under section 4 of the Partition Act when he is ready and willing to so purchase. 9. Learned counsel for the respondent no.1 in countering the above contentions, submits that when in the year 1969, the plaintiff purchased the suit land by registered sale deed under Ext.1, he was already in possession of a portion of the suit land that he purchased and it was since long not even to the knowledge. Not only that there was no objection from any quarter, but also even after sale all along for such long period even during when the plaintiff developed the land by amalgamating it with his homestead land, by mutating the same in his own name paying rent separately and there was no resistance by the defendant no.2 or others either physically or taking recourse of law invoking the provision under section 44 of the T.P. Act in restraining the defendant no.2 in changing the nature and character of the suit land. Even no communication has been made that he has no right to do so and intrude upon the said property. He thus submits that the lower appellate court has rightly held that the defendant no.2 is not entitled in the eye of law to be granted with relief of repurchase and the trial court was not right in subscribing its hand to the grant of said right to the defendant no.2. He thus submits that the lower appellate court has rightly held that the defendant no.2 is not entitled in the eye of law to be granted with relief of repurchase and the trial court was not right in subscribing its hand to the grant of said right to the defendant no.2. He also submits that the basic ingredients for attraction of section 4 of the Partition Act do not stand to satisfy in the facts and circumstances of the case as also the evidence on record. Therefore, he contends that the answers to the substantial questions of law are to be returned in favour of the dismissal of this appeal. 10. Law is well settled that a coparcener/co-owner/co-sharer is permitted to exercise his right of re-purchase under Section 4 of the Partition Act only when the transferee has sues in claiming adjustment of his/her purchased property towards the share of his vendor and its allotment by filing a suit for partition. In the instant case, the transferee-plaintiff has filed the suit for partition and for allotment of his purchased property towards the share of his vendor. In the case of Babulal v. Habibnoor Khan (dead) by L.Rs. and others, reported in AIR 2000 SC 2684 , the Hon’ble Supreme Court held as follows:-“ 10. Therefore, one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that the stranger-transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is, of course, true that in the said decision it was observed that even though the stranger-transferee of such undivided interest moves an execution application for separating his share by metes and bounds it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger-transferee. All the same, however, before Section 4 of the Act can be pressed into service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger-transferee himself moving for partition and separate possession of the share of the other co-owner which he have purchased…………” 11. A similar view has also been taken in a decision in the case of Gautam Paul v. Debi Rani Paul and others, reported in AIR 2001 SC 61 , wherein the Hon’ble Supreme Court in paragraph 23 held as follows:- “23. We are in agreement with this opinion. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus stranger/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that a transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition the stranger/outsider, who has purchased a share, would have to be made a party, the legislature was aware that in a suit for partition the parties are interchangeable. The legislature was aware that a partition suit would result in a decree for partition and in most cases a division by metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. The legislature was aware that a partition suit would result in a decree for partition and in most cases a division by metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. Yet the legislature did not provide that the right for pre-emption could be exercised “in any suit for partition”. The legislature only provided for such right when the “transferee sues for partition”. The intention of the legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger-purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.” In view of above, such prayer for defendant no. cannot but be said as entertainable in the present suit. 12. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.” In view of above, such prayer for defendant no. cannot but be said as entertainable in the present suit. 12. With aforesaid, now let’s come to section 4 of the Partition Act which read as under:- “xxx xxx xxx The above provision read with section 44 of the T.P. Act represents a well knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food, habits and others social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. With a view to seeing that such homogeneous life of co-owners belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the entry of a stranger to the family, this statutory right of pre-emption is made available to the co-owners who undertake to buy out such undivided share of the stranger co-owner.” 13. The expression of the provision of section 4 of the Partition Act shows that it is a benevolent provision enacted by the legislation for the welfare and tranquility of the joint family occupying the dwelling house. 14. Keeping the above in mind, let’s next examine at the first instance as to whether the land sold falls within the definition of ‘dwelling house’. Law is no more res-integra that dwelling house does not mean only the house itself. 14. Keeping the above in mind, let’s next examine at the first instance as to whether the land sold falls within the definition of ‘dwelling house’. Law is no more res-integra that dwelling house does not mean only the house itself. It includes not merely the actual structure or building but also adjacent building, cartilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house but not that which is only for the personal use and convenience of the occupier. In Salter Vrs. Metropolitian; 1817 LR 9 EQ, 432, a nursery garden has been held to be part of a dwelling house of the owner. However, in case of Faulkner v. Somerset; 1873 LR 16 EQ 458 a garden which was in the nature of a field had did not form a garden of the dwelling house was not treated as part of dwelling house. The emphasis thus always remains on the undivided character of the house and it is the attribute of the house that imparts to the family its character of a undivided family. Therefore, it is required to be seen further after concluding upon facts that it was an ancestral dwelling house and as to if any inference can be drawn to the effect that the parties have abandoned their intention to keep it as a dwelling house. Although mere non-occupation for sometime by the members of the family will not be sufficient indication of their abandoning the intention of keeping the house as a dwelling house, mere particularly when the house is found to bean ancestral dwelling house. 15. As a matter of fact, it is essentially to be found whether the house or the land in question falling within the purview of the dwelling house was used by the members of the family for residential purpose and for beneficial enjoyment of the house in question. Some nexus or connection with the residential user of the same has to be shown and this nexus if remains wanting it cannot come within the ambit of a dwelling house. The whole object is to prevent intrusion of any foreign element into the group of family members and it’s aid which is to maintain homogeneity in respect of the entire family. True, it is that the provision of section 4 of the Partition Act, is to be given a liberal interpretation. The whole object is to prevent intrusion of any foreign element into the group of family members and it’s aid which is to maintain homogeneity in respect of the entire family. True, it is that the provision of section 4 of the Partition Act, is to be given a liberal interpretation. However, that cannot go to mean that the wordings of the section and the clear interpretation thereof shall be ignored. The relevant wordings are ‘dwelling house belonging to one undivided family.’ The undivided family embraces a household comprised of parents or children or together relatives or domestic servants in short every collective body of persons living together within the same cartilage, substing in common object, the promotion of their mutual interests and social happiness which is the most popular acceptance of the word. 16. Keeping the above in mind so as to proceed further, at this stage some important features emerging out of the evidence which are necessarily to be taken note of, need be stated. The ancestral house and homestead of the plaintiff is on plot no.1901 which adjoins the suit land on its east. A road runs east-west along with the northern boundary of the suit plot. The residential house and bari of defendant nos. 1 to 5 are on plot nos. 1885 and 1886. Those plots of land situate to the immediate north of the said road. It is merely stated by them that they have used only the suit land as a part and parcel of their homestead land and nothing more in describing further in that light or direction. Therefore, by no stretch of imagination, the suit land in the above circumstance can be said to have been either used as dwelling house of the family of the defendants falling within the expression that includes the adjacent buildings, cartilage, garden, courtyard, orchard and all is necessary for convenient occupation of the house. More so, it is borne out from the evidence that the disputed portion of the suit land was under the possession of the father of the plaintiff for five decades and the encroachment having been detected it was ultimately decided that the land be transferred. Pursuant to it, the defendant no.1 and Govinda executed the sale deed on 25.06.1969 on receipt of consideration. Pursuant to it, the defendant no.1 and Govinda executed the sale deed on 25.06.1969 on receipt of consideration. The defendants have tolerated the possession of the plaintiff for such a long period since the year 1964 till the institution of the suit in the year 1989 when in the suit for the first time, there has been the advancement of said claim. At no prior point of time they on their own have taken the recourse of law to drive out the plaintiff from the suit land being under encroachment as such. This rather leads to infer that the occupation of the suit land by the plaintiff in no way cause inconvenience to the defendants for occupying their dwelling house. It has surfaced from the evidence that although the plaintiff was in possession of the portion of the suit land for five decades, yet the defendants did not know that there was really any encroachment of their land. From this it can reasonably be said that they had no such need for this suit land for their convenient user of their homestead land. Furthermore, it is the case of the plaintiff that the suit land is being used as his own homestead land having been amalgamated as such since long. The defendant no.2 who has filed this appeal in his evidence has clearly stated that he with his family are residing over the homestead situated over the plot no. 1885 and 1886 and also Nityananda and Govinda’s two sons are also residing there, and there remains no fence around the homestead land of the plaintiff. Thus taking a cumulative view of the above facts which surface in evidence, this Court does not find any reason to disagree with the view taken by the lower appellate court in setting aside the judgment and decree of the trial court granting the relief as provided under section 4 of the Partition Act to the defendant no.2 and in finally holding that the defendant no.2 is not entitled both in fact and law to the relief of repurchase of the suit land. 17. The aforesaid discussion and reasons accordingly provide the answers to the substantial questions of law and those run against the appellant. 18. Resultantly, the appeal stands dismissed. In the facts and circumstances there is however no order as to cost.