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2016 DIGILAW 760 (ORI)

Hari Rana v. Debachandra Bhoi

2016-09-08

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Sub-ordinate Judge, Titilagarh (as it was then) in T.A. No. 3 of 1984 confirming the judgment and decree passed by the learned Munsif, Titilagarh in T.S. No. 8 of 1978 (as then it was) in decreeing the suit filed by respondent nos. 1 to 3 as the plaintiffs declaring their right, title and interest over the suit land and recovery of possession of the same. 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. The plaintiffs’ case is that the suit land originally stood recorded in the name of Kunjal Bhoi as per the record of right of the settlement of the year 1936. Kunjal had two sons namely, Jhara and Dhankar. Both of them are dead. The defendant no. 2 is the daughter of Dhankar through his second wife Parbati and one Prema Majhiani is said to be the daughter of Dhankar through his first wife. Both Prema Majhiani and Jema Majhiani are dead. It is pertinent to place here that Prema was dead before t he institution of the suit; whereas Jema arraigned as defendant no. 2, having died during the suit, her legal representatives having been substituted during the suit are now before this Court in this second appeal coming to stand as respondent nos. 4 and 5. It is stated that Dhankar died prior to the year 1956. After death of Dhankar, his daughter Prema on 10.6.66 has sold the suit land to defendant no. 1 by registered sale deed dated 10.6.66 after obtaining required permission from the competent authority under Section 22 of the OLR Act. The plaintiffs thereafter had filed application under Section 23 of the OLR Act which stood dismissed. With the allegation that the plaintiffs had disturbed the possession of defendant no. 1 over the land in question, a proceeding under Section 144 of the Code of Criminal Procedure had been initiated and the plaintiffs had been restrained from interfering with the possession of the defendant no. 1. Due to efflux of time, the proceeding however stood finally dropped. The plaintiffs allege that the defendant no. 1 over the land in question, a proceeding under Section 144 of the Code of Criminal Procedure had been initiated and the plaintiffs had been restrained from interfering with the possession of the defendant no. 1. Due to efflux of time, the proceeding however stood finally dropped. The plaintiffs allege that the defendant no. 1 has fraudulently got the suit land which is joint family land recorded in his name in the current settlement operation. So they filed the suit for declaration of their right, title and interest over the suit land for its recovery of possession. 4. The defendant no. 1 coming to contest the suit while traversing the plaint averments admitted that the suit property was initially the joint family property of the parties. However, it is stated that there was amicable partition between two sons of Kunjal in the year 1940. It is stated that in the year 1958, Dhankar died and after his death Prema being one of the daughters sold away the suit land to the defendant no. 1 for legal necessity when her other sister, Jema the defendant no.2 was a minor and as such was represented by Prema. He asserted the sale to be a valid one and to have been in possession of the suit land being so delivered by Prema and thereafter to have constructed a house and dug a well over it. Mainly with the above averments, the defendant no. 1 prayed to non-suit the plaintiffs. The defendant no. 2 Jema had filed the written statement favouring the case of the plaintiffs. 5. Faced with the above rival pleadings, the trial court framed in total 16 issues. Going to decide the crucial issue i.e. issue no. 5 as regards the partition of the properties between Jhara and Dankar, two sons of Kunjal in the year 1940, upon analysis of evidence and their assessment, categorical, answer has been recorded that there was no such partition as alleged by defendant no. 1. Next going to answer issue nos. 6 and 7 concerning the exercise of the right of ownership over the suit land by Prema when Jema was a minor under her care and custody as also the factum of possession of the suit land by defendant no. 1. Next going to answer issue nos. 6 and 7 concerning the exercise of the right of ownership over the suit land by Prema when Jema was a minor under her care and custody as also the factum of possession of the suit land by defendant no. 1 and its impact on the decision of the suit together with other issues concerning the claim of sale as well as the ownership of Prema and consequently the validity of the sale made by her in favour of defendant no. 1 as also on the question of legal necessity if was there at that time, it has been finally held that the plaintiffs are not bound by the said sale while holding the possession of the suit land to be resting with defendant no.1 and that the plaintiffs as such are entitled to posses the suit land. 6. Next going to answer the issue as regards the suit being barred by limitation or not in favour of the plaintiffs, they have been granted with the reliefs as aforestated. The lower appellate court being moved by the defendant no. 1, no such fruitful result has yielded in his favour in getting the finding of the trial court set at naught and in upsetting the result in decreeing the suit. Now, therefore, the said defendant no. 1 has called in question those concurrent findings recorded by the courts below as well as the ultimate decision rendered by them in decreeing the suit granting the reliefs to the plaintiffs. 7. By order dated 22.9.1988, the appeal has been admitted on the substantial question of law as indicated in ground no.1 (a) of the memorandum of appeal which is reproduced herein below with formal correction. “Whether the courts below have committed gross irregularity and illegality by not discussing issue no. 3, which relates to the death of Dhankar Bhoi i.e. as regards the death of Dhankar Bhoi prior to the year 1956 or in the year 1958. This issue should have been decided specifically by the courts below to determine the right of Prema, the vendor of defendant no. 1 over the suit property as in absence of any finding regarding this issue, no conclusion can be drawn about the partition or the sale in question.” 8. This issue should have been decided specifically by the courts below to determine the right of Prema, the vendor of defendant no. 1 over the suit property as in absence of any finding regarding this issue, no conclusion can be drawn about the partition or the sale in question.” 8. Learned counsel for the appellant submits that the courts below have completely fallen in error both in law and fact by holding that there was no partition of the coparcenery properties between the two sons of Kunjal in the year 1940 after the death of Kunjal. According to him, the overwhelming evidence on record as regards the factum of partition between the two brothers have not been properly appreciated and he contends that the said finding is based on perverse appreciation of evidence. Thus he urges that the same is liable to be set at naught rendering a finding in the affirmative that there was the partition as pleaded by defendant no. 1 in the year 1940. It is his next submission that the courts below ought to have dismissed the suit holding that Prema had all the right to sale the suit land to defendant no.1, further the same being wholly backed by the legal necessity and more so as it was with the permission of the competent authority. 9. The learned counsel for the respondents submits that this Court in session of second appeal has nothing to interfere with the concurrent finding of fact recorded by the courts below on the score that there was no partition between Jhara and Dankar in the year 1940 after the death of Kunjal as there surfaces no such perversity with the same, when the courts below have gone for microscopic examination of evidence both oral and documentary on that factual aspect and therefore when the defendant no.1 is the purchaser of the property from one of the daughters of Dhankar, he cannot be said to have been clothed with the right, title and interest in respect of the said purchased land. Thus, according to him, the courts below have committed no mistake in finally decreeing the suit. 10. Admittedly, the parties are members of Scheduled Tribe. There is no denial of fact that the suit land is the coparcenery property in the hands of Jhara and Dankar. Thus, according to him, the courts below have committed no mistake in finally decreeing the suit. 10. Admittedly, the parties are members of Scheduled Tribe. There is no denial of fact that the suit land is the coparcenery property in the hands of Jhara and Dankar. The plaintiffs, being the three sons of Jhara are the male heirs of the family and as such the coparceners; whereas the defendant no. 1 is the purchaser of the property from one of the daughters of Dhankar who is the brother of Jhara and paternal uncle of the plaintiffs. Admittedly, the parties are not governed by the provisions of Hindu Succession Act and instead the principles of old Hindu Law apply to them. Thus it is of hardly any consequence to ascertain the year of death of Dhankar either to be prior to the year 1956 or in the year 1958 as the same would make no difference with regard to the succession of the coparcenary property. The settled position as it stands as per the old Hindu Law thus has now to be applied to the admitted facts and circumstances. The properties having come to the hands of Jhara and Dankar from Kunjal and upon their death stood as coparcenary property of the parties with the right of survivorship being in prevalence. So in ordinary course if it is said that Jhara and Dankar died in jointness, the plaintiffs are to succeed to the property at the ultimatum and the daughters of Dhankar namely, Prema and Jema in presence of the plaintiffs won’t come to derive any interest over the same. However, in case of partition by severance of status between Jhara and Dankar it can be said that they did so for bringing a disruption of joint family status, putting an end to the coparcernary with the right of survivorship, each holding the property from that time of disruption of joint family as tenant-in-common, thus having an impact on devolution of share of such members going to their respective heirs displacing survivorship, when only there can be a finding that the daughters of Dhankar, would be coming into picture in respect of the property in possession of the Dhankar as of his share and that would devolve upon them upon death of Dhankar or else it would be survived by the sons of Jhara. Keeping that in mind the factum of partition between Jhara and Dankar appears to have been rightly pleaded by the defendant no. 1 which is denied by the plaintiffs. The said issue thus remains as the most important one and the finding on that factual score would shed light and would be impacting the final decision of the suit. In the event, it is found that there was partition between Jhara and Dankar, the next question would fall for consideration as the right of Prema alone to sale the property or even her interest therein in presence of her minor sister and also if it was so sold with legal necessity so as to bind her other sister, Jema as upon death of Prema, the property would have flown to the hands of Jema in entirety. 11. The position of law has been well stated and elaborated in case of “Kalyani (dead) by L.Rs. vs. Narayanan and others; AIR 1980 SC 1173 stating as to what constitute partition. Para 10 of the said decision being relevant be placed hereunder:- “10. The next stage in the unfolding of the case is whether Ext. P-1 is effective as a partition. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense, all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier Vrs. Rama Subba Aiyan, (1886) 11 Moo Ind App 76 (PC) quoted with approval in Smt. Krishnabai Ganpatrao Vrs. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier Vrs. Rama Subba Aiyan, (1886) 11 Moo Ind App 76 (PC) quoted with approval in Smt. Krishnabai Ganpatrao Vrs. Appasaheb Tuljaramarao (1979) 4 SCC 60 at p. 68: ( AIR 1979 SC 1880 ). A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girija Bai V. Sadashiv) 43 Ind App 151: ( AIR 1916 PC 104 ). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.” 12. For all the aforesaid discussion, I find that the substantial question of law as framed does not survive for consideration for being answered in this appeal. Therefore, let us now proceed to address the rival submission of the learned counsel for the parties in the light of above settled legal position. In the instant case, in view of the admitted position that the property originally have come from Kunjal to the hands of his two sons namely, Jhara and Dhankar, the burden of proof that the two sons of Kunjal namely, Jhara and Dhankar had partitioned the properties lies upon the defendant no. 1 who is to establish the said factual aspect as pleaded in the written statement that the partition between them had taken place in the year 1940 by leading clear, cogent and acceptable evidence for the Court to record a finding on preponderance of probabilities. This purchaser’s claim is based on the registered sale deed said to have been executed by Prema on 10.6.66 which has been admitted in evidence being proved and marked as under Ext. B. If we plainly examine the recital of the said sale deed which is binding on defendant no. 1, it is seen that nothing is stated therein as regards the factum of partition between Dhankar, the father of Prema, the executant the sale deed and vendor through whom the defendant no. B. If we plainly examine the recital of the said sale deed which is binding on defendant no. 1, it is seen that nothing is stated therein as regards the factum of partition between Dhankar, the father of Prema, the executant the sale deed and vendor through whom the defendant no. 1 claims the property by virtue of the said sale deed and her elder father Jhara. Rather, it reveals therefrom that after the death of the father and elder father of the executant-vendor, it is the executant-vendor who remained in possession of the suit land by paying the land revenue. So the defendant no.1’s claim as regards the factum of partition between Jhara and Dhankar does not derive any support from the very document on which his claim is founded upon and thus the document which he wants to wield to thwart the suit appears to be blunt having no utility in that way and does not coming to his rescue for the main purpose. From the side of defendant no.1, one independent witness has been examined. Furthermore, the defendant no. 1 has also examined himself as D.W.1 to prove his case. He has merely stated that there was a partition between Dhankar and Jhara in the year 1940. This witness being examined in the year 1984 has stated his age to be 58. So his age at the time of said partition as stated and being accepted comes to 14 years. Next he has gone to state in cross-examination that at the relevant time, he was 20 to 25 years which even giving permissible relaxations is irreconcilable. He is not stating to have any direct knowledge with regard to the partition or states anything about dealing of the property so as to infer definite or unequivocal indication of intention by Jhara and Dhankar as regards separation and severance of joint status in enjoying the property to some extent, each separately thus living in separate mess and estate. Moreover, when he says that Dhankar died in the year 1958, he is unable to state the year of death of Jhara. Admittedly, there stands no document evidencing said partition. The courts below as is seen from the judgments have gone for detail examination of the evidence D.W.1 who is the defendant no. 1 as well as his witness D.W. 2. Admittedly, there stands no document evidencing said partition. The courts below as is seen from the judgments have gone for detail examination of the evidence D.W.1 who is the defendant no. 1 as well as his witness D.W. 2. So far as the evidence of D.W. 2 is concerned on the factum of partition, the same has been disbelieved in view of the fact that he has not been able to withstand the cross-examination on vital aspects so as to pass through the test of acceptability and as there appears suspicious features in his evidence standing in the way of acceptance of his evidence when he has also not been able to state the name of anyone else to have seen the partition; the extent of land by approximation involved in the partition. Furthermore, the factum of recording of the land other than the suit land jointly in favour of all has been taken as a factor to be standing against the case of partition which is of definite importance and impact on the controversial fact highly probabilising a case against partition as pleaded which as stands as the legal requirement for having the final say on the fate of the suit. 13. The lower appellate court as is seen has made an independent assessment of evidence on this score in arriving at the same conclusion as that of the trial court. I find that for the purpose of recording the answer on these issues, the courts below have not side trekked any such material evidence so as to say that if the same would have been taken into consideration, the finding would have been otherwise in holding the defendant no. 1 to have discharged the burden of proof of the factum of partition in establishing his case in that regard. It also not seen to be case that any such inadmissible evidence have taken into consideration to negate the case of partition. Thus, the submission of the learned counsel for the appellant that such finding is the outcome of perverse appreciation of evidence has no force and this Court therefore finds no reason to interfere with the said finding. 14. This being the position, it can be safely held that Prema had no right to sale the property and accordingly, the defendant no. 14. This being the position, it can be safely held that Prema had no right to sale the property and accordingly, the defendant no. 1 has derived no right, title and interest over the suit property by virtue of said registered sale deed under Ext. B. The plaintiffs thus come to succeed to the property as the surviving male heirs and members of the family and are thus to be held to be having the right, title and interest over the suit land. In view of the fact that the defendant no. 1 has no right, title and interest over the suit property having so derived under the registered sale deed, in so far as the suit land is concerned. Thus even if it is accepted for the sake of argument that he has been in possession of the property since purchase of the same, the same does not arm him as a sword to non-suit the plaintiffs. In the instant case they have not pleaded in the alternative as regards acquisition of title by adverse possession and even that required period for the purpose is not getting completed on the date of institution of the suit i.e. on 6.5.78 as against the sale which is said to have taken place on 10.6.66 under Ext. B. In view of all the aforesaid the judgments and decrees passed by the courts below are hereby accorded with the seals of confirmation. 15. In the result, the appeal stands dismissed. In the facts and circumstances, the parties are to bear their respective cost of litigation throughout.