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2016 DIGILAW 835 (ORI)

Parbati Sahu v. Damodar Ojha

2016-09-19

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned First Additional District Judge, Cuttack in Title Appeal No.22 of 1992. The respondents as the plaintiffs had filed the suit for declaration of the sale deeds-Exts. E, F,G and H executed by the respondent no.5 (defendant no.5) in favour of respondent nos.1 to 4 (defendant nos.1 to 4) as illegal and void with further relief for permanently restraining them to come over the suit land described in schedule ‘B’ of the plaint and from raising any construction thereon. The suit having been decreed granting the reliefs to these appellants, the respondent nos.1 to 4 being aggrieved by the same had filed the above noted appeal under section 96 of the Code of Civil Procedure. The appeal has been allowed and thus the judgment and decree passed in the suit of the appellant-plaintiffs granting the reliefs as prayed for having been set aside, now they have field this appeal under section 100 of the Code. 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. Plaintiffs case is that they as also the defendant nos.5,6 and 7 are the members of Hindu undivided family. One Rama Chandra Sahu, the common ancestor had three sons, namely, Sanei, Bhikari and Sukei. Their properties stood recorded in the name of these three sons in the record of right of the year 1931 and as such they were in joint possession. Sukei died leaving no heir and while living in joint mess and estate. After him, his two brothers continued to remain in joint mess and estate. It is explained that though Sanei and Bhikari are two brothers erroneously Bhikari had been shown as the father of Sanei. They had their undivided dwelling house over the land under Hal Plot No.2036 and their joint family road is situated in Hal Plot No.2068. Besides the above, they had the other joint family properties as described in detail in schedule ‘B’. After the death of the brothers, the five sons of Sanei, namely, Makar, Karuni, Panchanan, Sukadev and Khirod succeeded to the properties along with the son of Bhikari, namely, Dhaneswar. It is stated that there was no partition between Sanei and Bhikari during their lifetime. After the death of the brothers, the five sons of Sanei, namely, Makar, Karuni, Panchanan, Sukadev and Khirod succeeded to the properties along with the son of Bhikari, namely, Dhaneswar. It is stated that there was no partition between Sanei and Bhikari during their lifetime. In the consolidation operation, the defendant no.1 disclosed to have obtained the sale deed in his favour as well as in the name of his sons from defendant no.5 in respect of some plots and basing upon the same, he claimed for recording the land in their favour. Because of above disclosure, the plaintiffs then made necessary inquiry and came to know that defendant no.5 had executed the sale deed on 20.03.1984 in respect of land measuring Ac.0.02 dec. covered under plot no.2036, Ac.0.02 dec. under plot no.2068 and Ac.0.04 dec. under plot no.2061. It was also found that on 11.04.1985, the defendant no.5 had sold Ac.0.06-5 kadi from plot no.1558 and 1559 which have been fully described in schedule ‘C’ of the plaint which is now said to be the suit property. It is their case that these sale deeds are void being in respect of undivided share in joint family qua-dwelling house and those defendants being strangers to the family are not entitled to joint or common possession or part enjoyment of the same with other members of the joint family. So, they prayed for declaration that those sale deeds are illegal and void and also for permanently restraining the purchasers from possessing the property with alternative prayer that in the event the sale deeds are found to be valid, a decree under section 4 of the Partition Act for repurchase be passed in their favour. 4. Defendant nos.1 to 4 by filing the written statement contested the suit. It is stated that the sons of Rama Chandra never possessed the land jointly and the land under plot nos.2083 and 2068 are not the undivided dwelling house of the family and joint private road respectively. It is their specific case that Sanei and Bhikari were separate since long both in mess and estate and, therefore, their descendants have been in separate possession of different portions of land as of their share. It is their specific case that Sanei and Bhikari were separate since long both in mess and estate and, therefore, their descendants have been in separate possession of different portions of land as of their share. It is next stated that defendant no.5 while in possession of his share of property had made all those alienations in favour of defendant nos.1 to 4 and the possession of the lands covered under those sale deeds being delivered to them, they are accordingly in possession of those lands since then to the exclusion of the plaintiffs and other defendants. It is also stated that defendant nos.6 and 7 had also given their consent to the said sales. They further aver that, in fact, the defendant no.5 had first asked those plaintiffs to purchase the schedule ‘C’ properties and as there came no response, he had no option but to sale the property to defendant nos.1 to 4. It is also their case that such separate possession and enjoyment of the properties having prevailed over a long time, the suit as laid has no leg to stand. 5. With the above rival pleadings, the trial court framed as many as seven issues. First of all going to decide issue no.3 as regards the partition of the joint family properties between Sanei and Bhikari since long, the answer has been recorded upon evaluation of evidence in the backdrop of the rival pleadings in favour of the plaintiffs negating the case of prior partition as projected by the defendants and it has also been said that the jointness in respect of mess and estate to have been continuing. 6. Next, going to answer the issue as regards the joint family dwelling house as has been said by the plaintiffs to have been standing over the property described in schedule ‘C’, the same has been answered in favour of the plaintiffs. Defendant nos.1 to 4 being the stranger purchasers have been held to be having no right and entitlement to joint possession of those lands covered under Exts.E and H. Lastly, for that reason, it has been held that the said sale deeds are invalid. These findings have led the trial court to decree the suit granting all the reliefs as prayed for by the plaintiffs. 7. These findings have led the trial court to decree the suit granting all the reliefs as prayed for by the plaintiffs. 7. In the appeal preferred by the defendant nos.1 to 4, the purchasers under those sale deeds, the lower appellate court has first of all sat over to judge the sustainability of the finding of the trial court on the issue of prior partition holding the property to be continuing as joint family properties, in joint possession of the plaintiffs and defendant no.5. In that exercise at its level, it has proceeded to scan the evidence, both oral and documentary afresh, let in by the parties. At the ultimatum, it has been held on assessment of evidence that the properties no longer remain as the joint family and as also are not in joint possession of the plaintiffs and defendant no.5. With this finding, the plaintiffs have been non-suited holding them as not entitled to the reliefs as granted by the trial court. Those have thus been overturned. 8. The appeal has been admitted on the following substantial question of law. “Whether a stranger purchaser of a dwelling house is entitled to joint or common possession or part enjoyment of the house along with other members of the co-percenery in contravention of Section 44 of the T.P. Act?” 9. At the outset, learned counsel for the parties fairly agree on the point that this Court would be called upon to record the answer to the above noted substantial question of law only in the event the finding recorded by the lower appellate court that the properties are not the joint family properties and the plaintiffs and defendantno.5 are not in joint possession of the same is held untenable and set at naught. Thus in that view of matter the substantial question of law as framed would stand to be answered. Therefore, upon hearing, the following substantial question of law has been framed as no.(i) and the one already framed is numbered as no.(ii). (1) Whether the lower appellate court’s finding in upsetting the findings of the trial court on issue nos.3 and 4 are the outcome of perverse appreciation of evidence on record and that the lower appellate court without assigning justifiable reasons has erred in setting at naught the finding of the trial court on those issues. 10. (1) Whether the lower appellate court’s finding in upsetting the findings of the trial court on issue nos.3 and 4 are the outcome of perverse appreciation of evidence on record and that the lower appellate court without assigning justifiable reasons has erred in setting at naught the finding of the trial court on those issues. 10. Learned counsel for the appellant submits that the lower appellate court in view of the evidence on record ought to have held that the defendants have not been able to discharge the burden of proof in establishing a case of prior partition of the properties amongst the parties. According to him, the finding on that score as rendered by the lower appellate court is based on perverse appreciation of evidence and there ought not to have been the finding of prior partition under any circumstance which rather he contends to have been founded upon conjunctures and surmises. 11. Learned counsel for the respondents contends all in favour of the finding of the lower appellate court holding that the said court being the final court of fact when has recorded the finding on appreciation of evidence at its level independently even though we may say that a different view is possible to be taken, this Court in seisin of second appeal ought not to interfere with the same unless the finding are found to be suffering from the vice of perversity, which according to him is not the case here. 12. For addressing the above rival submission, a careful reading has been given to para-6 of the judgment of the lower appellate court. It is found from Ext.1, the record of right of the year 1931 that all the lands stood recorded in the name of Sanei, Bhikari and Sukei, the sons of Rama Chandra under Khatian No.402. It comprises of plot no.1094, 1095 and 1911 totaling Ac.2.91 dec. However, Ac.1.26 dec. have been scorded showing Ac.0.26 dec. and Ac.1.18 dec. has been scored showing it only 18 decimal which are in relation to plot nos.1899 and 1094. The other Khatian (Ext.2) shows Sanei son of Bhikari as the recorded owner in respect of Khatian No.786 which comprises of land under Plot No.1588-Ac.0.07 dec., Plot No.1599-Ac.0.06 dec., Plot No.2057-Ac.0.26 dec., Plot No.2061-Ac.0.27 dec., Plot No.2063-Ac.0.18 dec., Plot No.2068-Ac.0.04 dec., and Plot No.4227-Ac.0.07 dec. The other Khatian (Ext.2) shows Sanei son of Bhikari as the recorded owner in respect of Khatian No.786 which comprises of land under Plot No.1588-Ac.0.07 dec., Plot No.1599-Ac.0.06 dec., Plot No.2057-Ac.0.26 dec., Plot No.2061-Ac.0.27 dec., Plot No.2063-Ac.0.18 dec., Plot No.2068-Ac.0.04 dec., and Plot No.4227-Ac.0.07 dec. Thereafter, the record of right of the year 1977 has followed the suite. However, the fact remains that the plaintiffs have not taken any measure for correction of the record of right of the year 1977. Plaintiffs claim that Sanei and Bhikari were living in joint mess and estate which state continued all through whereas the defendants claim that they were in separate possession by mutual partition. The lower appellate court has taken into consideration the evidence of P.W.2 as has surfaced during cross-examination wherein he admits Bhikari to have sold one guntha of land from out of the suit plot in favour of his mother and that has been emphasized upon. Thereafter, it has proceeded for examination of the evidence of the witnesses cited by the defendants to find out how far they have established the case of prior partition. This exhibits that the lower appellate court has been conscious of the legal position that the burden of proof as regards the factum of prior partition is resting with the defendants and has according gone ahead. 13. The transaction of sale as deposed to by P.W.2 has been admitted in evidence and marked as Ext. ‘C’ which is dated 20.06.1960. It goes to show that Bhikari had executed the sale deed in favour of Kunja wife of Sanei, i.e., one brother selling the property to the wife of the other brother, which is undoubtedly a transaction at par with the transaction between the parties. Another deed proved as Ext.C/1 discloses Narayan and three others to have executed a Kanta Kabala in favour of one Abhay Jena on 24.11.1975 which contain clear recitals therein that Sanei and Bhikari each were possessing the land with their half share. If there was no amicable partition, there was no need to indicate the share that too long back when there was no litigation. It also recites of separate possession pursuant to partition. If there was no amicable partition, there was no need to indicate the share that too long back when there was no litigation. It also recites of separate possession pursuant to partition. Ext.A, the registered Kanta Kabala reflects that it had been executed by Bhikari in favour of one Padma Charan Mishra way back on 03.10.1962 and it again recites that Bhikari being in possession of the said land towards his half share to have thus executed the same. It has also been stated that out of the land measuring Ac.0.26 dec. under Plot No.1899 then standing recorded in the name of Sanei and Bhikari, Ac.0.13 dec. of land to have been in possession of Bhikari. Another important document stands proved is Ext.B which is the objection petition filed by the original plaintiff Makar with Karunakar, Panchu, Mula and Khirod sons of Sanei against this defendant no.5, who is son of Bhikari for separate recording of lands under Plot Nos.1558, 1559, 2057, 2061, 2063 and 2068 in total coming to Ac.0.44 dec. out of Ac.0.88 dec. under those plots. In that objection, it has been stated that defendant no.5 has sold his share of land as allotted to him in mutual partition and, therefore, the rest of the land towards their half share in their possession be accordingly recorded. The Amin report in this connection has been proved as Ext.B/2 which also favours the factum mutual partition and accordingly the separate possession. In that very objection petition, the defendant no.5 is a consenting party. From another proved document, Ext. D, we find that defendant no. 5 has sold land to Manu Senapati on 11.10.1982 transferring his share of land and that contains the statement of prior partition between Sanei and Bhikari. He has also sold land to Damodar Ojha on 18.06.1984 on that basis of separate possession as per partition. Other sale deeds such as Ext. 4 dated 09.01.1985 and Ext. H dated 20.03.1984 also contain the recitals in the same light. Ext. K also shows some other persons to have got the land separately recorded having so purchased from defendant no.5 which concerns with the land under Plot Nos.1529, 1528,1875 and 1977. Separate living of the parties have been proved through oral evidence. 4 dated 09.01.1985 and Ext. H dated 20.03.1984 also contain the recitals in the same light. Ext. K also shows some other persons to have got the land separately recorded having so purchased from defendant no.5 which concerns with the land under Plot Nos.1529, 1528,1875 and 1977. Separate living of the parties have been proved through oral evidence. So, with such overwhelming evidence as discussed on the score of separate dealing with the properties by the parties, entering into deal with the member of the family in respect of the property and others together with other circumstances of separate living stretching over a long period, the lower appellate court having taken a view that the burden of proof lying upon the defendants has stood discharged is not found to be a flawed one and so also the finding that the parties had partitioned their properties mutually since long and accordingly are in separate possession, when there remains no such evidence to displace the onus shifting upon the plaintiffs cannot be said to be the result of perverse appreciation of eidence. Therefore, this Court is unable to cull out any such justification in support of according a note of dissent with the same holding those to be the outcome of perverse appreciation of evidence on record. More-so in the absence of evidence to counter and in the absence of any explanation to the above being provided for by the plaintiffs that all those were merely for convenience and under some or other compelling and unavoidable circumstances which in reality have remained unhonoured and unregarded to, the said finding of lower appellate court has to be affirmed. The decisions cited by the learned counsel for the appellants in Bhikari Behera & Another Vrs. Dharamananda Natia & Another, Vol.20, C.L.T., Page-462 states that mere occupation of different portions of the dwelling house by different co-parceners is not sufficient to prove a partition. In the present case as per the discussion of evidence made above, the lower appellate court has not found the answers to the issues merely basing upon different portions of dwelling houses being occupied by the different coparceners. So the said decision does not come to the aid of the appellant. The decision in case of Bhim Singh & Another Vrs. So the said decision does not come to the aid of the appellant. The decision in case of Bhim Singh & Another Vrs. Ratnakar Singh & another, 1970(1) C.W.R., Page-183, 184 is also distinguishable in the facts and circumstances of the case in hand. Therefore, the first substantial question of law now stands answered against the appellants. In view of that the second substantial question of law does no more survive for consideration so as to be answered. 12. In the result, the appeal stands dismissed. However, in the facts and circumstances, the parties are to bear their respective cost throughout.