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2016 DIGILAW 614 (ORI)

Pitamber Nayak v. Saunti Patra @ Mohapatra

2016-08-09

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Bhadrak in Title Appeal No. 5/64 of 1983/87 confirming the judgment and decree passed by the learned Munsif, Balasore (as it was then) in O.S. No. 217 of 1978. The appellant as the plaintiff had filed the suit for partition of the land described in ‘Ka’ and ‘Kha’ of the plaint. The suit has been preliminarily decreed in respect of ‘Ka’ schedule land and the trial court specifically refused to pass preliminary decree for partition of ‘Kha’ schedule land. The plaintiff thus being aggrieved in respect of refusal of the relief of partition in so far as ‘Kha’ schedule land is concerned had carried the first appeal under section 96 of the Code of Civil Procedure. In the said appeal, respondent-defendants had preferred the cross appeal with regard to the preliminary decree passed by the trial court in respect of ‘Ka’ schedule land. The lower appellate court finally dismissed the appeal as also the cross appeal. So now this second appeal has been filed under section 100 of the Code of Civil Procedure by the plaintiff as the appellant confining to the prayer of partition of ‘Kha’ schedule land and asserting that it ought to have also been decreed and the courts below to have fallen in error both in fact and law in declining to grant the said relief of partition of schedule ‘Kha’ land.. 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. The plaintiff while describing the details relating to the property sought to be partitioned stated that the land described in schedule ‘Ka’ of the plaint appertains to R.S. Plot No. 5911, 5911/5924, 5910/5925 under R.S. holding No. 1718 and it was for an area of Ac0.6 decimals corresponding to C.S. Plot No. 984 with holding no.880. It is stated that in the current settlement area has been mentioned as A0.1 decimals. The plots as mentioned in ‘Ka’ schedule, in the major settlement corresponds to plot no. 1229 where the area has been A0.5 decimals. It may be stated here that the ‘Kha’ schedule land comprises of plot no. 5920 under holding no.1159 and that corresponds to C.S. plot no. The plots as mentioned in ‘Ka’ schedule, in the major settlement corresponds to plot no. 1229 where the area has been A0.5 decimals. It may be stated here that the ‘Kha’ schedule land comprises of plot no. 5920 under holding no.1159 and that corresponds to C.S. plot no. 983/3762 under holding no.747 measuring A0.9 decimals and that finds mention as A0.8 decimals in the major settlement appertaining to plot no.1227. The plaintiff provided the genealogy in the plaint. According to it, Ananda had three sons, namely, Bhaiga, Hari and Siba. Siba had a son namely, Kanhei and Bhaiga had a son Puni. The suit land as per the Major Settlement stood recorded in the names of Puni son of Bhaiga, Kanhei son of Siba and Kasi son of Pahali who is the grandson of Hari. It is now stated that Puni had sold his 5 annas 4 pies interest over the landed properties to defendant no.2. Upon the death of Kanhei, his 5 annas and 4 pies interest devolved on Kasi. So Kasi got 10 annas 8 pies interest. The defendant no.1 is the only son of Kasi and is the successor who came to hold the interest of 10 annas 8 pies and he in turn sold the same to the plaintiff. It is stated that though the sale deed executed by defendant no.1 in respect of 16 annas interest of the defendant no.1 yet the claim is confined to 10 annas 8 pies over the ‘Ka’ schedule land. It is further stated by the plaintiff that the ‘Ka’ schedule land actually appertains to plot no.984 and it’s area is A.0.6 decimals which in khatian has been wrongly mentioned as plot no. 983 measuring A.0.01 decimal. Similarly schedule ‘Kha’ land under C.S. Khata no.747 appertains to plot no.983/3762. It is stated by the plaintiff that both the holdings i.e. 747 and 1007 belonged to Puni, Kanhei and Kasi who were the recorded owners as shown in the record of the current settlement. But the C.S. record of right standing in the name of Mukti Dibya appertaining to plot no. 984 in fact in the field being an area of A.0.06 decimals which was actually possessed by Puni, Kanhei and Kasi, and the plot no.983 owned by Mukti was in her possession and she was never in possession of the land under plot no.984. 984 in fact in the field being an area of A.0.06 decimals which was actually possessed by Puni, Kanhei and Kasi, and the plot no.983 owned by Mukti was in her possession and she was never in possession of the land under plot no.984. The entry in the current settlement record in her favour as above is said to be erroneous. It is his case that she was actually possessing A.0.01 decimals of land under plot no.983. As the defendant no.2 on 23.11.1978 put up a temporary shed over the ‘Ka’ schedule land, the suit for partition has come to be filed. 4. Defendant nos. 1 and 2 contested the suit by filing the written statement. Defendant no.1 admits to have sold away his 10 annas 8 pies interest to the defendant no.2 for consideration vide sale deed dated 21.12.1977 followed by delivery of possession and as such states to have no claim over the suit land. The defendant no.2 challenging the description of the suit land to be totally vague, pleads that Pahali son of Hari and grandson of Ananda had separated from Puni and Kanhei. But Puni and Kanhei remained joint after such separation and when C.S. operation commenced, Kanhei died issueless. So Puni is said to have become the owner in respect of the interest of Kenhei over and above his own interest which comes to 10 annas 8 pies and Kasi was the owner in respect of five annas and four pies. This concerns with the land described in ‘Kha’ schedule. So far as the ‘Ka’ schedule land is concerned, it is stated that the land was owned by Mukta Dibya who by execution of deed of relinquishment, on 10.11.1930 conferred the ownership upon the father of the defendant no.2 and his uncle. So, it is stated that none other had any interest over the ‘Ka’ schedule land except him. 5. On the rival pleadings, ten issues have been framed. As is seen from the judgment very rightly the trial court first of all has taken up issue no.4 as that goes to the root questioning the maintainability of the suit in view of the challenge as regards the vague, indefinite and incorrect description of the suit property. On examination of evidence, description of both ‘Ka’ and ‘Kha’ schedule land has been found to be correct. On examination of evidence, description of both ‘Ka’ and ‘Kha’ schedule land has been found to be correct. This finding of fact has been affirmed by the lower appellate court on independent evaluation of evidence at its level. After this, the trial court has taken up three issues relating to the sale of land by defendant no.1 in favour of plaintiff if is valid and as regards claim of partition in simultaneously deciding as to whether there has been prior partition or not together for decision. First of all schedule ‘Ka’ land been held liable for partition with quantification of share of 2/3rd in favour of the plaintiff and 1/3rd in favour of the defendant no.2 Next it has been held that the sale deed in question in respect of ‘Ka’ schedule, Ext.3 is inoperative and could not be given effect to for the reasons that the settlement authorities have found the plaintiff to be never in possession of this land which has been admitted by the plaintiff’s witness examined as P.W.4 when he has stated that the said land is in possession of defendant no.2. With this, the trial court has gone to pass a preliminary decree, partitioned only ‘Ka’ schedule land and not the land described in ‘Kha’ schedule. 6. The lower appellate court as is seen from the judgment having taken up the exercise of examination of the sustainability of the above findings of the trial court, on examination of evidence has found the finding of the trial court to be suffering from no such infirmity and thus as such upheld those, resulting dismissal of the appeal as also the cross appeal. So, now the concurrent finding of fact that schedule ‘Kha’ land is not liable to be partitioned recorded by the courts below has been called in question here in this second appeal. 7. This appeal has been admitted on the substantial question of law as indicated in ground no.7 of the memorandum of appeal which comprises three substantial questions of law which are reproduced here in below :- (a) Whether the learned court below has committed error of record in holding that plot no.983/3762 has been sold by Regd. Sale Deed, Ext.J (Original Sale Deed) and Ext.12 (certified copy of the Ext.J) not plot no.983? Sale Deed, Ext.J (Original Sale Deed) and Ext.12 (certified copy of the Ext.J) not plot no.983? (b) Whether in absence of pleading and in absence of specific case of defendants, can the courts below come to a finding that the land conveyed/sold under Ext.J and Ext.12 is the same under Ext.3 i.e. in ‘Kha’ schedule land ? (c) Whether sale deed in respect of ‘Kha’ schedule land vide Ext.3 is in operative? 8. Learned counsel for the appellant submits that the evidence are overwhelming to show that the defendant no.1 sold his 2/3rd interest over both in ‘Ka’ and ‘Kha’ schedule property vide Ext.3. The defendant no.2 has purchased 1/3rd share of Puni. It is the case of the defendant no.2 that the defendant no.1 has sold area of A0.05 decimals from ‘Kha’ schedule to Maguni Mohapatra by registered sale deed dated 11.06.1974, i.e. Ext.J. So the courts below have concluded that the plaintiff has no share over such ‘Kha’ land. According to him, the courts below ought not to have refused to partition the land described in the schedule ‘Kha’ without considering Ext.12 and Ext.J as also the oral evidence of deed writer D.W.3 who has deposed that Maguni has purchased plot no. 983 but not plot no.983/3762 measuring A0.09 decimals. Acceptance of Ext. J which is an interpolated one is seriously challenged and so also non-consideration of Exts. 11 and 12 which show that Maguni Mohapatra purchased the land in plot no.983 and that too the absence of any evidence that Maguni Mohapatra was in possession of A.0.05 decimals that has not been duly taken care of. Therefore, he urges that the above substantial questions of law must find their answer in favour of the appellant. None appears on behalf of the respondent despite several opportunities. 9. The refusal of the prayer in respect of ‘Kha’ schedule land with which now we are concerned in this appeal depends upon the validity of the sale deed dated 21.12.1977, Ext.3. This is said by defendant no.2 as without consideration and as to have never been acted upon. None appears on behalf of the respondent despite several opportunities. 9. The refusal of the prayer in respect of ‘Kha’ schedule land with which now we are concerned in this appeal depends upon the validity of the sale deed dated 21.12.1977, Ext.3. This is said by defendant no.2 as without consideration and as to have never been acted upon. The defendant no.2’s case is that the deed has not been enforced and not inoperative as defendant no.1 prior to execution of this deed there had already been sale of A.0.05 decimals out of schedule ‘Kha’ to Maguni Mohapatra on 11.06.1974 by Ext.J. Admittedly, defendant no.1 has the right over the 2/3rd interest over the land described in schedule “Kha’ measuring A.0.09 decimals appertaining to plot no.983/3762. So the interest of defendant no.1 comes to A.0.06 decimals and after disposal of A.0.05 decimals to Maguni, the rest within the extent of his share that remains is A.0.01 decimal. The plaintiff has not successfully assailed Ext.J, the prior sale deed so as to satisfy the court in concluding that there has been no transfer of interest by that in favour of Maguni and that apart the plaintiff has not been able to discharge the burden of proof that the land covered under Ext.J is not from out of the land in schedule ‘Kha’, more so the plaintiff’s own witness P.W.4 has deposed that said land is in possession of defendant no.2 providing support to the order of the settlement authority. Therefore, this Court does not find the courts below to have committed any error in holding that the sale deed dated 21.12.1977, Ext.3 selling the entire land in favour of the plaintiff to be inoperative on the face of Ext. J which has been duly proved as also the consequential finding that the defendant no.1 could not have disposed of the said land in favour of defendant no.2 for the same appears to be unassailable. 10. In the wake of aforesaid, the courts below are found to have rightly concluded that the Ext.3 being inoperative, the plaintiff is not entitled to the relief of partition in respect of ‘Kha’ schedule land finding support from Ext.J and the proven fact that during the settlement operation, the possession has also not been found with the plaintiff which his witness has admitted in further saying that the possession remains with the defendant no.2. The aforesaid discussion and reasons accordingly provide answer to the substantial questions of law against the appellant. 11. Resultantly, the appeal stands dismissed. There shall however be no order as to cost.