Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 505 (ORI)

Balakrushna Behera v. Krushna Ch. Tarai

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been filed against the judgment and decree passed by the learned Civil Judge (Sr. Division), Kendrapara in Title Appeal No.13 of 1985 setting aside the judgment and preliminary decree passed by the learned Munsif, Kendrapara in Title Suit No.137 of 1979. The appellant as the plaintiff has filed the suit for partition along with prayer for repurchase of the suit land under section 4 of the Partition Act. The trial court had simply decreed the suit preliminarily allotting half share over the suit plots to the plaintiff and accordingly directed for partition of the same. The respondent no.1 (defendant no.2) being aggrieved by the same, carried an appeal under section 96 of the Code of Civil Procedure. The appeal having been allowed and accordingly the judgment and preliminary decree as passed by the trial court having been set aside, the present second appeal under section 100 of the Code of Civil Procedure has been filed. 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 trial court. 3. Plaintiff’s case is that his father Bhanja Behera had another brother, namely, Mahani Behera and they are the two sons of Laxman. It is further pleaded that in the year 1943, Mahani sold the land measuring Ac.0.05 dec. from out of his share to his brother-Bhanja and since then Bhanja and after him the plaintiff remained in possession of the land extending to Ac.0.13 dec. It is next stated that only in the year 1979 the plaintiff came to know that defendant no.2 had purchased Ac.0.08 dec. of land from defendant nos.3, 4 and 5, claiming to have been owning the said property in view of purchase of the same in an auction sale made by the court in execution of a money decree against Mahani, the father of defendant no.1. It is further alleged that Mahani after sale of Ac.0.05 dec. of land to the father of the plaintiff had only Ac.0.03 dec. of land left in his share. The suit land is also said to be the undivided dwelling house of the family. Therefore, the plaintiff while seeking partition of the property has also sought for the relief of repurchase of the land so purchased by the defendant no.2 from the defendant nos.3, 4 and 5. of land left in his share. The suit land is also said to be the undivided dwelling house of the family. Therefore, the plaintiff while seeking partition of the property has also sought for the relief of repurchase of the land so purchased by the defendant no.2 from the defendant nos.3, 4 and 5. 4. The defendants coming to contest the suit inter alia pleaded in the written statement that the suit land measuring Ac.0.08 dec. was allotted to Mahani the father of defendant no.1 in an amicable partition between him and his brother Bhanja. That was sold in auction on 18.08.1943 in Execution Case No.586 of 1943 filed for satisfaction of the money decree passed in M.S. No.980 of 1937 in the Court of the Munsif, Kendrapara and was purchased by Laxmidhar, the father of defendant no.4 and Meghanad, the defendant no.3 on 20.11.1994 who had taken delivery of possession of the same and then alienated the same on 21.05.1962 to the defendant no.2 under registered sale deed. The defendant no.2 stated to be in peaceful possession of the said land since then. The defendants further deny the case of the plaintiff that the suit land is the undivided dwelling house of the family and plead that the defendant no.2 has been in peaceful possession and enjoyment of the suit land to the knowledge of the plaintiff since the year 1962 and as such in the alternative a claim of acquisition of right, title and interest over the same by adverse possession has been advanced. 5. Faced with such rival pleadings, the trial court framed as many as eight issues. Rightly going to answer the issue no.8 first as it concerns with one of the important objections with regard to res judicata as enshrined in the provision of section 11 of the Code, the finding has been in favour of the plaintiff that the suit is not barred by the principle of res judicata and the provisions of law governing the field on the subject do not come to be applied in so far as the present suit is concerned. Next going to answer issue no.5 as regards the right, title and interest of the plaintiff and his possession over the suit land, upon analysis of evidence and their evaluation, finding has been recorded by the trial court in favour of the plaintiff to the extent that the suit land are liable to be partitioned. The prayer with regard to repurchase has of course been refused. 6. The unsuccessful defendant no.2 having moved the lower appellate court has received favourable order inasmuch as the appellate court having allowed the appeal has set aside the judgment and preliminary decree passed by the trial court. It has also been held that there has already been a partition between the father of the plaintiff on one hand and the defendant no.1 on the other. The prayer under section 4 of the Partition Act has also been refused with further finding that the suit land is not the undivided dwelling house. So saying, the lower appellate court while allowing the appeal, has not hesitated to set aside the judgment and preliminary decree passed by the trial court. 7. The appeal has been admitted on the substantial question of law as indicated in ground no.1, 2 and 3 of the memorandum of appeal which are the followings: “(1) Whether the finding of the learned lower appellate court relating to partition between Bhanja and Mahani is sustainable in spite of finding that there is no clinching evidence relating to partition and whether mere possession amounts to partition? (2) Whether the lower appellate court committed serious error of law in holding that the judgment in T.S. No. 161 of 1979 shall operate as resjudicata in the present suit in spite of the finding that the cause of action for both the suits are different? (3) Whether there is any limitation for filing the suit for partition and whether the delay in filing the suit extinguished the right of the plaintiff for filing the suit for partition and claiming relief under section 4 of the Partition Act?” 8. Learned counsel for the appellant fairly at the outset places that the settled law is that unless a stranger purchaser files the suit for partition, a co-sharer is not entitled to seek the relief of repurchase as provided under section 4 of the Partition Act. Learned counsel for the appellant fairly at the outset places that the settled law is that unless a stranger purchaser files the suit for partition, a co-sharer is not entitled to seek the relief of repurchase as provided under section 4 of the Partition Act. He contends that thus the view taken by the lower appellate court that the defendant no.1 or his father having not approached the court with the suit under section 4 of the Partition Act and as such allowed the auction purchasers and after them the plaintiff to possess the suit land for more than 35 years till institution of the suit as circumstances and factors to adversely view the claim of the plaintiff, is not right. Be that as it may, that question according to him is of no significance. According to him, the evidence on record being properly examined and weighed there can be no finding as regards partition of the property amongst the parties and such finding rendered by the lower appellate court negating the finding recorded by the trial court is on the basis of some inference drawn erroneously and those are based on mere conjectures and surmises. According to him, the judgment passed in T.S. No. 161 of 1979 (Ext.E) does not reflect the actual position in the field in so far as the possession of the suit land is concerned. Although in the said judgment, the defendant no.2 has been held to be in the possession and the plaintiff was permanently restrained from coming over the suit land but that has never been the actual situation in the field as said judgment and decree had never been carried into effect as such remaining there on papers. It is his further submission that the suit land and the dwelling house when belong to undivided family, the remedy for the purchaser or any one claiming through him is to file the suit for partition and to carve out the share of the vendor and get the purchased land adjusted towards that. According to him, the possession as stated to have been taken through court by Laxmidhar and Meghanad (defendant nos. 3 and 4) is only symbolic and there has never been physical delivery of possession. So, he contends that the lower appellate court has completely erred in law by setting aside the judgment and decree passed by the trial court. 9. According to him, the possession as stated to have been taken through court by Laxmidhar and Meghanad (defendant nos. 3 and 4) is only symbolic and there has never been physical delivery of possession. So, he contends that the lower appellate court has completely erred in law by setting aside the judgment and decree passed by the trial court. 9. Learned counsel for the respondents submits all in favour of the findings recorded by the lower appellate court. According to him, the lower appellate court has rightly held by properly assessing the evidence on record that there had already been the partition between the fathers of the plaintiff and the defendant no.1 and in that view of the matter, the judgment and decree passed by the trial court has been rightly set aside. 10. On the above rival submissions, the crucial point remains for examination is as to whether the lower appellate court is right in giving the finding of partition as aforementioned. It is the case of the defendant no.2 that the suit land which is the eastern most portion of the land under plot No. 4107 measuring Ac0.08 decimals from out of Ac0.16 decimals was allotted to the share of Mahani, the father of defendant no.1 in a family partition and subsequently in execution of a money decree, the said land was sold by way of auction in court to the defendant nos. 3 and 5 from whom he had duly purchased the same under Registered Sale Deed. He further claims to have been possessing the suit land being delivered by the vendors as above, which were earlier in their possession stretching over the period since the year 1944 to 1962, till they sold. It is also his case that only in the year 1979, the dispute as regards possession arose between him and the plaintiff for which the suit for permanent injunction i.e. T.S. No. 161 of 1979 was filed which had been decreed. The evidence on record reveals that the parties have been in possession of the land separately for a long time and as such they have been in exercise of their right of ownership in respect of those lands in their respective possession. It appears from the evidence that said state of affair has been continuing for quite a long time. The evidence on record reveals that the parties have been in possession of the land separately for a long time and as such they have been in exercise of their right of ownership in respect of those lands in their respective possession. It appears from the evidence that said state of affair has been continuing for quite a long time. Indisputedly, the defendant no.2 had filed the suit against the plaintiff i.e. T.S. No. 161 of 1979 in respect of the suit land for permanent injunction. The suit land having been purchased by him from the defendant nos. 3 and 5 on 21.05.1962, the above suit was instituted in the year 1979. The suit having been decreed, the plaintiff, his son and two others were permanently injuncted from interfering with his possession over the suit land. The possession of defendant no.2 having been found in that earlier suit; such finding has also been affirmed in appeal which has been proved as additional evidence in the first appeal and the decree stood confirmed on 20.02.1985. The vendor of defendant no.2 has purchased the suit property in auction held by court in execution of money decree way back in the year 1944. Neither the plaintiff nor his father have called the same in question in any forum as available in law till the year 1979 when question was raised for the first time in the suit for permanent injunction to restrain the plaintiff from interfering in the possession over the suit land. More interestingly, the father of the plaintiff is also found to have sold Ac0.05 decimals of land to the father of the defendant no.1. Although it has been held to be a nominal sale deed, nonetheless it very much contains the clear admission of the father of the plaintiff when reference has been made therein as regards share of the father of the plaintiff and the defendant no.1. Such admission has remained unexplained. All the above facts and circumstances which emerge out of evidence when viewed cumulatively, the finding of the lower appellate court that there has been partition between the father of the plaintiff and the defendant no.1 cannot be said to be a flawed one necessitating interference. 11. Aforesaid conclusion when provides the answer to the substantial question no. All the above facts and circumstances which emerge out of evidence when viewed cumulatively, the finding of the lower appellate court that there has been partition between the father of the plaintiff and the defendant no.1 cannot be said to be a flawed one necessitating interference. 11. Aforesaid conclusion when provides the answer to the substantial question no. 1 against the appellant, there remains no further necessity to proceed to answer the other substantial questions of law as formulated as those may now merely stand as of academic interest. This Court thus finds that the appeal is liable to be dismissed. 12. Resultantly, the appeal stands dismissed and in the facts and circumstances with costs throughout.