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2016 DIGILAW 588 (ORI)

Pramod Ku. Pattnaik v. Padmalaya Mohanty

2016-08-02

D.DASH

body2016
JUDGMENT : D.DASH, J. This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Athgarh in R.F.A. No. 133 of 2003 filed by the respondent no. 1 being the unsuccessful plaintiff in Title Suit No. 41 of 1993, challenging the judgment and decree passed by the learned Civil Judge (Sr. Division), Athgarh, dismissing the suit. The lower appellate court in allowing the appeal, as has set aside the judgment and decree passed by the trial court in Title Suit No. 41 of 1993 and has declared the right, title and interest of the respondent no. 1-plaintiff over the suit land and confirmed her possession restraining the defendant –appellant from interfering with the possession in respect of the suit land, the present appeal under section 100 of the Code of Civil Procedure has come to be filed. 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 plaintiff’s case is that the suit land stood recorded in the name of Banchhanidhi Patnaik in the settlement record of the year 1923. However, thereafter, the name of Govinda, Ananda, Paramananda and Bachhanidhi came to be entered in the said record by the order in mutation case No. 59 /1945-46. The settlement record of right is said to have been prepared, accordingly in the year 1947. It is stated that although the name of above three were recorded as per the order in the mutation case on the basis of possession of Banchhanidhi, Ananda, Govinda and Paramananda, but in fact, each were possessing some portions of land separately. It is stated that after death of Banchhanidhi, name of his son Prasanna, the defendant no. 15 appeared in the said record along with Ananda, son of Sudarsan and Pramod, the defendant no. 1, son of Pravakar, Dibakar and Umesh, the two sons of Paramanda. Thus, it is stated that land is the ancestral property of defendant no. 1 to 16. It is further stated that the land stood recorded jointly in the name of defendant no. 1, and 13 to 15 as also Ananda though each of them were in separate possession of portions of the suit lands. Thus, it is stated that land is the ancestral property of defendant no. 1 to 16. It is further stated that the land stood recorded jointly in the name of defendant no. 1, and 13 to 15 as also Ananda though each of them were in separate possession of portions of the suit lands. It is further stated that according to the amicable partition in the year 1965, the land under plot no. 1213, 1527, 1645, 1250, 1381 and 683 under Khata No. 49 fell to the share of Ananda. However, the land under plot no. 1382 was possessed by defendant no. 1, 2 and one Pratap, the husband of defendant no. 4, when the land under plot no. 1379 was possessed by defendant no. 13 and 14. It is next stated that Ananda while in separate possession of land under plot no. 1381 sold Ac. 0.60.5 kadies out of the total extent of Ac. 0.13 decimals by registered sale-deed dated 12.07.1977 in favour of defendant no. 1 who got it mutated in her name in mutation case No. 1061 of 1977 and accordingly got the record of right in her favour. Said defendant no. 9 is said to have sold her purchased land as above in favour of the plaintiff for consideration of Rs. 8,5000/-by registered sale-deed dated 06.09.1993 followed by delivery of possession. It is also stated that Ananda sold the suit land which is the rest part to defendant no. 17 on 12.07.1977 by executing registered sale-deed. Accordingly after purchase, defendant no. 17 remained in possession of the said land till he sold the same to the plaintiff by registered sale-deed dated 06.09.1993 for valuable consideration followed by delivery of possession. Thus, it is the case of the plaintiff that she is in possession of the entire land under Sabik plot no. 1381. The defendant no. 1, 2 and husband of defendant no. 4 are said to have got their land which they had got their share in the said amicable arrangement recorded as such by order in the mutation case no. 474 of 1972 and accordingly ROR is said to have also been prepared in their name under Khata no. 483/170. Thus, it is stated that these defendants have no right, title, interest and possession over the suit land. It is alleged that on 26.09.1993, the defendant no. 474 of 1972 and accordingly ROR is said to have also been prepared in their name under Khata no. 483/170. Thus, it is stated that these defendants have no right, title, interest and possession over the suit land. It is alleged that on 26.09.1993, the defendant no. 1 to 3 threatened the plaintiff to remove the fence as also the laterite stones lying over the suit land. Thereafter, on 19.10.1993, they forcibly entered upon the suit land damaged some trees standing over there. So, the suit ultimately came to be filed. 4. The defendant no. 1 to 4 and 16 came to contest the suit by filing joint written statement. Besides taking the technical pleas such as the suit being not maintainable as also lack of cause of action, being barred by limitation and bad for non-joinder of necessary parties they specifically pleaded that the suit land is the Gharabari land of Ghana, Govinda, Ananda, Paramananda who were jointly possessing the same as owners. So, it is stated that recording of the land solely in the name of Banchhanidhi is illegal and erroneous. It is stated that after death of Ghana, the property came to the hands of Banchhanidhi with other co-sharers and after death of Ghana, Govinda, Ananda and Paramanda, the same was succeeded by their legal heirs. It is stated that the suit land under plot no. 1380 and 1381 are recorded under Gharabari kissam where dwelling house of the recorded tenants situate. They denied the factum of amicable partition of the same by metes and bounds. The defendants are claiming to have been staying in the dwelling house situated over the land under plot no. 1380 and 1381. It is stated that defendant no. 17 has no right, title and interest over the Schedule –A land nor she had the alienable right. So, the sale-deed said to have been executed by defendant no. 17 in favour of the plaintiff is attacked as illegal, sham, collusive, void and in-operative as also without payment of consideration and being not followed by delivery of possession. They denied the factum of possession of the suit land by defendant no. 17 at any point of time, so also the plaintiffs possession over the same as asserted. The sale-deed said to have been executed by Ananda in favour of defendant no. 9 is said to be a fabricated one. They denied the factum of possession of the suit land by defendant no. 17 at any point of time, so also the plaintiffs possession over the same as asserted. The sale-deed said to have been executed by Ananda in favour of defendant no. 9 is said to be a fabricated one. It is said to that Ananda did not have the exclusive right of alienation of the said land. The sale-deed said to have been executed by Ananda in favour of defendant no. 9 is also challenged as void, illegal, sham and inoperative. The defendants claim to have their joint dwelling house over the suit land, where the plaintiff is a stranger. They have stated that the plaintiff has no right to take possession of the suit land. The defendant no. 5 to defendant no. 15 and 17 in their written statement have pleaded to have no right, title and interest over the suit land. They having supported the case of the plaintiff have stated all in support of grant of the reliefs as prayed for by the plaintiff. 5. The trial court faced with above rival pleadings had framed in total 10 issues. Having taken up issue no. 6 to 9 together for decision which practically covered all the facts in controversy as is seen from the rival pleadings, the conclusion has been that the suit land is the joint dwelling house of the defendants and there was no partition of the same amongst the co-sharers by metes and bounds. Then finding the plaintiff to be a stranger to the family, it has been held that she is having no right to take possession of the same. The sale-deed accordingly standing in favour of the plaintiff has been held to be void. The above decision resulted the dismissal of the suit. The lower appellate court being moved by the unsuccessful plaintiff rising to the occasion appears to have rightly gone to examine the sustainability of the findings of the trial court on issue no. 6 to 9. Stating the admitted facts as those emanate from the pleading and then discussing the position of law, having taken up the exercise of independent appreciation of evidence on record both oral and documentary, at its level has held that there was partition of the suit property by metes and bounds. 6 to 9. Stating the admitted facts as those emanate from the pleading and then discussing the position of law, having taken up the exercise of independent appreciation of evidence on record both oral and documentary, at its level has held that there was partition of the suit property by metes and bounds. Thereafter, on evaluation of evidence, it has also held that the plaintiff has the right, title and interest over the suit land on the strength of her purchases which are valid in the eye of law and according to it when those do not come to the aid of the defendants, the findings of the trial court have been found liable to be set aside. The lower appellate court having set aside the finding of the trial court on issue No. 6 to 9 has answered those in favour of the plaintiff. Consequentially, the dismissal of the suit has been set aside and the plaintiff has been held entitled to the reliefs claimed. Thus, the suit having been decreed by the lower appellate court followed by grant of the reliefs as prayed for, the present second appeal under section 100 of the Code has come to be filed by the unsuccessful defendants. 6. Learned counsel for the appellants submits that the finding of the lower appellate court that there had been partition of the suit property with other the joint family property of the defendants by metes and bounds is perverse. This is attacked firstly for having been rendered under a misconception of law, secondly being based upon the recitals of the sale-deed executed by one of the co-sharers, when the same is a self-serving document and is under challenge and thirdly that it has been so recorded by just viewing the mutated record of rights standing in the name of different members of the family and accordingly drawing therefrom the conclusion of partition by metes and bounds. He contends that the finding of the trial court on those issue no. 6 to 9 when were based on just and proper appreciation of evidence both oral and documentary, the lower appellate court ought not to have interfered with the same on the above grounds which are untenable both in law and fact. These, according to him are the substantial questions of law. Learned counsel for the respondent no. 6 to 9 when were based on just and proper appreciation of evidence both oral and documentary, the lower appellate court ought not to have interfered with the same on the above grounds which are untenable both in law and fact. These, according to him are the substantial questions of law. Learned counsel for the respondent no. 1 having entered appearance submits in support of the findings of the lower appellate court, in further high lighting the fact and circumstances of this case and those emerge out of evidence on record and further taking the pain of placing the documentary evidence stating those to be providing great support to the conclusions of the lower appellate court in decreeing the suit followed by grant of the reliefs as prayed for by the plaintiff. 7. In order to address the rival pleadings for the purpose of ascertaining as to whether there arises any substantial question of law in this case so as to certify for its admission, at the cost of the repeatation, it is felt necessary to have a bird’s eye view over the plaintiff’s case. The suit land measures 6 decimals and 5 kadies under Hal Plot no. 1381 corresponding to Khata No. 49 corresponding to Sabik Khata No. 69 of mouza Jenapada Dala. This originally stood recorded in the name of Banchhanidhi in the settlement record in the year 1923. In the Nayabadi Settlement of the year 1947, the land has been recorded in the name of Govinda, Ananda, Paramananda and Banchhanidhi. This is on the basis of an order in mutation case No. 59 of 1945-46. It is stated that the parties were possessing the land separately, each with respect to some portions of land. On Banchhanidhi’s death, his son Prasanna came to be recorded with Ananda, Paramananda and defendant no. 1, Dibakar, the defendant no. 13 and Umesh, the defendant no. 14 as it stood in the record of the year 1963. It is stated that despite said recording, parties were in separate possession of separate portions of lands. An amicable partition is said to have been made in the year 1965, wherein the suit land under plot no. 1381 and land from some other plots of Khata No. 49 are said to have fallen to the share of Ananda, father of defendant no. 5 to 7. And Ananda is said to have sold 6 dec. An amicable partition is said to have been made in the year 1965, wherein the suit land under plot no. 1381 and land from some other plots of Khata No. 49 are said to have fallen to the share of Ananda, father of defendant no. 5 to 7. And Ananda is said to have sold 6 dec. and 5 kadies of land under that plot no. 1381 to the defendant no. 9 who is none other than his daughter by the registered sale-deed in the year 1977 and then rest 6 decimals and 5 kadies land under of that very plot to one Binapani, the daughter-in-law of Ananda, the defendant no. 17 by another registered sale-deed on that very day. Those purchasers from Ananda are said to have sold the land to the plaintiff on 06.09.1993 for valuable consideration accompanied by delivery of possession. The plaintiff claims to be in possession of the property that he purchased since the date of her purchase openly, peacefully and without any interruption till 26.09.1993 when the defendants for the first time created disturbance. The defendants when come forward to deny all these above factual aspects in the present suit, the burden of proof thus lies on the plaintiff to establish the factum of prior partition as also the allotment there of. 8. In the instant case, the plaintiff for the purpose places strong reliance on document Ext. 4, the record of mutation case No. 474 of 1972, Ext. 7, the application form in the said mutation case and Ext. 5, the mutation ROR under Khata No. 483 /433 reflecting the land to have been recorded in the name of defendant no. 9 which have been proved in the case. It has been piloted in evidence that Ext. 7, the mutation application has been written under the instruction of Pramod who had signed therein vide Ext. 7/A, wherein Umesh and Prasanna had signed vide Ext. 7/C and 7/D respectively. The lower appellate court has on evaluation of evidence found no reason to discard such evidence and thus has discarded the evidence of D.W. 1 as regards his denial of having signed on Ext. 7. It has also been established through evidence that consequent upon Ext. 7, the R.O.R. was prepared in the name of defendant no. 1, Pramod and his brother. 7. It has also been established through evidence that consequent upon Ext. 7, the R.O.R. was prepared in the name of defendant no. 1, Pramod and his brother. The lower appellate court has also gone to examine the order-sheet of the mutation case and found all in favour of observance of the prescribed legal formalities, while further taking into account the conduct of defendant no. 1 in not filing any objection at any time in the said proceeding. The mutated record of right is standing since the year 1972, when the claim of the defendant no. 1 in challenging the same is coming after lapse of more than two decades. Admitted position from evidence emerges that the parties are staying separately. The documentary evidence reveal that the defendant no. 1 to 4 are not staying over the suit property. In support of the case laid in the plaint that the suit property fell to the share of Ananda who during his lifetime has sold his half share to defendant no. 9 and rest half to defendant no. 17, it is noticed from the fact that the land measuring Ac. 0.06.5 kadies has been mutated in mutation case no. No. 1061 of 1977. The said entry has been made against the land under plot no. 1381 under Khata no. 49, marked as Ext. 6, wherein the defendant no. 1 is the one of the recorded tenants. Furthermore, pursuant to the said mutation, record of right under Khata no. 483/433 has also been prepared in the name of the defendant no. 9. This clearly proves the conduct of Ananda as regards his dealing with the property independently and separately from others. Thus, so far as the suit land is concerned, it has rightly been said by the lower appellate court that the same do not attract the status of joint property. In view of all these, the lower appellate court which is the final court of fact having arrived at a conclusion that it has been proved that there was partition of the suit property by metes and bounds, this Court not only finds the same to be founded upon sound appreciation of evidence but also to have been so recorded keeping in view the settled principles of law in arriving at stage conclusion. 9. 9. Law is set at rest that partition consists of numerical division of the property in defining the shares of the co-parceners in the joint property and an actual division of the property is not necessary. The glaring facts of the case in hand is that Ananda sold half of land from the sabik suit plot but defendant no. 9 in the year 1977 and rest half to defendant no. 17. The next one is that mutation of the land has accordingly been allowed in favour of defendant no. 1 followed by the preparation of the mutated ROR in the name of defendant no. 1 and his brothers which have stood all along. Another important facet which cannot also be lost sight of and that stands quite relevant for the purpose which of course has been taken note of and I may say rightly by the lower appellate court. The same surfaces in the evidence of P.W. 1, 2 and 4 that the ancestral Gharabari land stands under plot no. 1379, 1380, 1381 and 1382 and Prasanna is staying over plot no. 1380 when there exists well on each of plot bearing nos. 1380, 1381 and 1382 and that the house during the year 1928-30 though was compact, the same has undergone sea change by this time and that is but on account of separate possession by the respective co-sharers followed by the sale of suit land to the plaintiff who since other purchase has been in possession of the same being so delivered by P.W. 1 as proved being further corroborated by P.W. 2 and interestingly now here the sale is challenged with respect to one portion of the land. when admittedly the total land under plot has been sold. In view of aforesaid discussion and reasons, the submission of the learned counsel for the appellants fails. 10. Accordingly, the appeal stands dismissed. No order as to cost.