Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 762 (ORI)

Bhikari Charan Panda v. Rajib Pradhan

2016-09-08

D.DASH

body2016
JUDGMENT : The appellant in this second appeal calls in question the judgment and decree passed by the learned Ad hoc Additional District Judge (Fast Track Court-II), Cuttack in Title Appeal No.73 of 2001 dismissing the appeal filed by the present appellant calling in question the dismissal of the suit for partition and declaration the sale deed dated 23.01.1999 is void. 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 one Govinda is the common ancestor of the parties. He had two sons, namely, Basu and Bisunu. It is stated that the plaintiff represent the branch of Bisunu whereas the defendant nos.2 to 4 represent the branch of Basu. The original plaintiff no.1 is the daughter of Bisunu and Gopinath having married her, it is said that she remained since then as illatum son-in-law and the plaintiff no.2 is their adopted son. It is further asserted that they were residing together under one roof with Bisunu. Defendant no.1 is the father of defendant nos.5 to 7 and it is stated that those defendant nos.5 to 7 had purchased the suit land from the members of the branch of Basu and were in possession of some portion of the same. Since the suit land had not been partitioned, the plaintiff requested defendant no.1 for the same and when he did not listen, the suit came to be filed. The defendants pleaded that there was a prior partition between Basu and Bisunu and pursuant to the same, members of branch of Basu had sold all their property that had fallen to their share. It is further stated that Basu being the elder brother, the eastern side of the suit land had fallen to his share and, therefore, the defendant nos.5 to 7 had purchased land of Ac.0.15 dec. towards eastern side and have been in possession of the same. 4. The trial court on such rival pleadings framed in total five issues. It is further stated that Basu being the elder brother, the eastern side of the suit land had fallen to his share and, therefore, the defendant nos.5 to 7 had purchased land of Ac.0.15 dec. towards eastern side and have been in possession of the same. 4. The trial court on such rival pleadings framed in total five issues. First going to answer issue nos.5, 6 and 7 with regard to the partibility of the property in view of the defence of prior partition and consequently the validity of the sale deed, it rendered categorical finding that there was no partition of the suit properties in metes and bounds between Basu and Bisunu during their lifetime nor the eastern side thereof had fallen to the share of Basu nor he was in exclusive possession of the same. In view of that it has been held that defendant nos.5 to 7 on the basis of their purchase have stepped into the shoes of the co-sharer-vendors. However, it next held the suit for partition to be not maintainable as originally it had simply been brought against the defendant no.1 who was in no way connected with the suit being the father of the purchasers when by then the property had already been transferred in favour of the defendant nos.5 to 7. It held that the suit land is not liable for partition between the parties in the form as laid. Thus, the trial court ultimately dismissed the suit. 5. The unsuccessful plaintiff no.2 then carried an appeal. The lower appellate court differed with the finding of the trial court on the issue of prior partition going to conclude that the suit land had already been partitioned between Basu and Bisunu during their lifetime. Accordingly, it held the suit as liable to the dismissed and did so at the ultimatum. Thus, here is a case where the trial court when had dismissed the suit on one ground, the lower appellate court having differed on the said ground to be tenable in the eye of law, however, dismissed the suit on the other ground by setting aside the finding of the trial court on the issue of prior partition and answering it against the plaintiff. 6. 6. This appeal has been admitted on the following substantial questions of law as noted hereunder with necessary corrections merely as regards construction: (i) Whether the lower appellate court is justified in reversing the finding of the trial court on the issue relating to previous partition between Basu and Bisunu? (ii) Whether the courts below without considering the legal effect of recording of the land under Ext.1 and the statutory presumption attached to it going unrebutted, merely considering the oral evidence is correct in holding that the suit land had already been partitioned between Basu and Bisunu and as such suit for partition afresh is not maintainable ? 7. Learned counsel for the appellant submits that the lower appellate court has completely erred in law by going to hold that there had been partition of the suit land between Basu and Bisunu during their lifetime. According to him, neither there has been the specific pleading by the defendants nor it has been duly established through evidence so as to arrive at a definite conclusion. According to him, the burden of proof in this regard resting upon the defendants having not been discharged, the lower appellate court ought not to have set aside the finding of the trial court on that score in finally dismissing the suit on that finding alone when all other findings have been recorded in favour of the plaintiff and more so when that finding standing in favour of the plaintiffs was not called in question by the defendants by filing any cross-objection. He contends that the presumption attached to the record of right (Ext.1) wherein the land stands jointly recorded has not at all been rebutted and a finding of prior partition merely on the basis of even separate living of the parties, separate dealings and possession of separate parcels of land by them is not permissible as those circumstances although project a case of separate living and enjoyment by the parties for convenience yet are not enough to record a finding of prior partition so as to refuse to pass a decree for partition of the properties in metes and bounds. Therefore, he contends for recording the answers on the above substantial questions of law in favour of the appellant and contends that it is a fit case for passing a preliminary decree for partition of the suit property as prayed for. 8. Therefore, he contends for recording the answers on the above substantial questions of law in favour of the appellant and contends that it is a fit case for passing a preliminary decree for partition of the suit property as prayed for. 8. Learned counsel for the appellant thus confines his submission with regard to the first two substantial questions of law for being answered in this appeal in favour of the appellant and does not press the third substantial question of law for consideration. None appears on behalf of the respondents. 9. As per the settled position of law a presumption of jointness is attached to every Hindu family and if that family is possessed of property, it is presumed to be joint. The burden of proof lies on the person who claims the separation of the said joint status and partition. Here thus the burden lies upon the defendants to specifically plead and prove the factum of prior partition so as to non suit the plaintiff on that ground. According to their case Basu and Bisunu had partitioned the property during their lifetime. Admittedly, there remains no documentary evidence on that score. It is simply stated that the eastern half measuring Ac.0.15 dec. had fallen in the share of Basu wherein the western half had gone to the share of Bisunu and that both the brothers were residing separately and accordingly were in separate possession. When it is said that the partition was an oral one, D.Ws.1 and 2 examined on behalf of the defendants are silent on that score. Similarly, the evidence of D.W.4 do not go to reveal that he had any direct knowledge of said partition if any. It is not disclosed that when such partition was made. The trial court has explained the stray statement of P.W.1 on the above score of prior partition as to have been merely suggestive of the fact of severance of joint status between Basu and Bisunu. In such state of affair in oral evidence the record of right (Ext.1) goes to show the joint recording. The very document projected by the defendants as the foundation of their claim over the property that is the sale deed Ext.2 does not go to recite any previous partition in metes and bounds and the transfer to have been pursuant to the same. The very document projected by the defendants as the foundation of their claim over the property that is the sale deed Ext.2 does not go to recite any previous partition in metes and bounds and the transfer to have been pursuant to the same. The trial court having taken all these into account had recorded the finding that there was no earlier partition during the lifetime of Basu and Bisunu. The lower appellate court as is seen without assigning any justifiable reason has gone to set aside the said finding banking upon that statement of P.W.1 which stood well explained by the trial court so as not to form the foundation of the finding of prior partition. It has erred in law by not taken into consideration the presumption attached to Ext.1, the record of right showing joint recording of the suit land so also the absence of any recital of previous partition in the sale deed (Ext.1) proved by the defendants in support of their claim, which have gone unrebutted and those rather set further explanation to the statement of P.W.1 as to be accordingly appreciated in its proper perspective that is suggestive of a case of separate enjoyment as of convenience but not by a completed partition in metes and bounds. Thus, I find that the lower appellate court’s finding on the issue of prior partition is contrary to the one recorded by the trial court is the outcome of perverse appreciation of evidence without being alive to the settled principles of law. The substantial questions of law under item no.(i) and (ii) are accordingly answered in favour of the appellant. Consequent upon the same, the judgment and decree passed by the lower appellate court are held liable to be set aside which is hereby done. 10. In the result, the appeal stands allowed without cost. The suit is preliminarily decreed declaring half share of the plaintiff over the suit land with further direction for adjustment of the land purchased by the defendant nos.5 to 7 under Ext. A towards the share of their vendors belonging to the branch of Basu. 10. In the result, the appeal stands allowed without cost. The suit is preliminarily decreed declaring half share of the plaintiff over the suit land with further direction for adjustment of the land purchased by the defendant nos.5 to 7 under Ext. A towards the share of their vendors belonging to the branch of Basu. Parties are directed to amicably divide the properties as aforesaid among themselves within two months hence and in the event of failure the same be given effect to upon the application by any party/parties for passing a final decree, regard being had to the possession and convenience of the parties as far as practicable and possible taking other equitable factors if any into consideration.