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2016 DIGILAW 839 (ORI)

Mohan Patra v. Dekhabandhu Patra

2016-09-20

D.DASH

body2016
JUDGMENT : The appellant in this appeal calls in question the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No. 27 of 2004 filed by the respondents being the unsuccessful plaintiffs in the trial court. The respondents as the plaintiffs had filed the suit for partition of the land described in the schedule of the plaint in the Court of learned Civil Judge (Sr. Division), Keonjhar. That having been dismissed, they had carried the appeal. The lower appellate court has allowed the appeal which has resulted in decreeing the suit preliminarily declaring share of the parties over the suit schedule property. Now, therefore, the defendant no. 1 being aggrieved by the same has filed this appeal under section 100 of the Code of Civil Procedure. 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. Plaintiff’s case is that one Halu Patra is the common ancestor of the parties. He died leaving behind two sons namely, Puria and Pitei. Defendant no. 1 and 2 are the son and daughter of Puria respectively. Pitei had two sons namely, Narayan and Jadu. Narayan is dead and plaintiff no. 1 and 2 are his successors. Plaintiff No. 3 is the widow of Jadu. The plaintiff no. 4 to 8 are the sons and daughters of Jadu. It is stated that the suit land belong to Halu. On his death it devolved upon Puria and Pitei and finally upon the plaintiffs and defendant no. 1 and 2. Although notes of possession in the remark column of the record of right in respect of plot no. 13, 94 and 95 stand in the name of defendant no. 3 and 4, yet it is stated that they had never possessed nor are in possession of those lands. However, they have been made parties as a measure of caution. It is next stated that there being inconvenience in possession of the suit land by the parties, the plaintiffs approached defendant no. 1 and 2 for partition and that request ultimately having not been acceded to, the suit has come to be filed. 4. The defendant no. 1 contested the suit by filing written statement. It is next stated that there being inconvenience in possession of the suit land by the parties, the plaintiffs approached defendant no. 1 and 2 for partition and that request ultimately having not been acceded to, the suit has come to be filed. 4. The defendant no. 1 contested the suit by filing written statement. It is his specific case that the suit land is not the only property of Halu and he was having more lands in addition to the same. It is alleged that plaintiff’s branch having already sold lands to different persons, the present suit has been filed for partition of the remaining land without disclosing all those details. It is stated that Narayan and Jadu had transferred some lands to the father of defendant no. 1 and Pitei had sold land measuring Ac. 10.1/2 decimals to Rupa Bewa who is dead and now is survived by her son who is possessing the suit land. It is further stated that Pitei had also sold Ac. 14.1/2 decimals of land to one Ballav Sahu who too being dead, his son Maguni is possessing the same. It is next stated that Pitei had sold some goda land also to one Ballav Sahu. All these alienations are said to have taken place after the amicable partition. So, it is stated that plaintiffs are not having any further interest over any suit land so as to claim partition of the same. 5. The trial court in view of above rival pleadings, framed five issues. Rightly taking up the issue relating to maintainability side by side as regards the interest of the plaintiffs over the suit land and the issue of partibility of the suit land, ultimate answer on all those have been recorded against the plaintiffs. The decisions on the above issues resulted the dismissal of the suit. 6. In the first appeal, the lower appellate court in view of the challenge before it, examining the evidence has found the defendant no. 1 to have failed to establish the case of prior partition. So, taking a view that a suit for partial partition comprising some joint family property is maintainable, it has gone to set aside the finding of the trial court and finally has proceeded to decree the suit preliminarily as aforesaid. 7. 1 to have failed to establish the case of prior partition. So, taking a view that a suit for partial partition comprising some joint family property is maintainable, it has gone to set aside the finding of the trial court and finally has proceeded to decree the suit preliminarily as aforesaid. 7. The appeal has been admitted on the following substantial questions of law:- (i) Whether the lower appellate court is right in upsetting the finding of the trial court that the suit for partition as laid in respect of Ac.0.55 decimals under Khata no. 7 is not maintainable in view of the evidence that there has been sale of 77.1/2 decimals of land from out of that Khata by the members of the branch to which the plaintiffs belong merely on the ground that a suit for partial partition is maintainable? (ii) Whether the settled law that a suit for partial partition is maintainable has been rightly applied to the present case by the lower appellate court in absence of any explanation being given by the plaintiffs either for non-inclusion of the balance land under that Khata about the sales already made? 8. Learned counsel for the appellant submits that the lower appellate court has proceeded in a wrong premises without paying any attention to the facts established by evidence that there being alienations of land in excess of the half share of plaintiffs branch over the land under that very holding, it has gone to pass a preliminary decree completely ignoring the most important aspect of the case that now by such partition as ordered, the plaintiff would be doubly benefitted. He contends that the preliminary decree as passed by the lower appellate court if is allowed to stand the same would cause serious deprivation to the defendants in the sense that plaintiff’s branch having already alienated more than their share, in respect of the land of the holding now again would be getting half share over the balance, practically leaving negligible extent towards the entitlement of the defendants. According to him, the lower appellate court without appreciating the facts and circumstances emanating from evidence has abruptly gone to upset the findings of the trial court which had vividly discussed the evidence in holding the suit as laid as not maintainable. According to him, the lower appellate court without appreciating the facts and circumstances emanating from evidence has abruptly gone to upset the findings of the trial court which had vividly discussed the evidence in holding the suit as laid as not maintainable. According to him, the lower appellate court’s approach and decision at the ultimatum are the outcome of total non-application of mind to the facts and circumstances emerging out of evidence as also on erroneous application of the settled principle of law governing the field. Therefore, he contends that the judgment and decree impugned in this appeal are liable to be set aside upon recording the answers on the above substantial questions of law in favour of the appellants. 9. Learned counsel for the respondents submits all in favour of the finding recorded by the lower appellate court. He has reiterated that since the suit for partition embracing some properties of the joint family is permissible in law, the lower appellate court did commit no mistake in decreeing the suit preliminarily. 10. In a plain and simple manner stating the properties to be joint family properties, the plaintiffs have claimed partition of the properties described in the schedule of the plaint. Admittedly, the plaintiff’s branch had half share over the properties descending from the hands of Halu, whereas defendants branch had the interest over the rest. The extent of land as described in the plaint is Ac. 0.55 decimals. It has been proved that this land was there in Khata no. 7 as per record of the sabik settlement and it has now been recorded under Khata no 6 in the record of the hal settlement. The total extent of land in that sabik record of right was Ac. 1.40 decimals, whereas presently it is of the extent of Ac. 0.55 decimals. It has been proved by documentary evidence that some of the properties of Halu standing recorded under Sabik Khata no. 7 have by now been recorded in the name of Padma Ch. Mohanty under Ext. C and Harihar Sahu under Ext. B. The recorded tenant under Ext. C being examined as D.W. 1 has stated to have purchased Ac. 0.13 decimals from Pitei Patra which in turn has said to have sold to Fakira Ch. Sahu. 7 have by now been recorded in the name of Padma Ch. Mohanty under Ext. C and Harihar Sahu under Ext. B. The recorded tenant under Ext. C being examined as D.W. 1 has stated to have purchased Ac. 0.13 decimals from Pitei Patra which in turn has said to have sold to Fakira Ch. Sahu. This has been testified by D.W. 3 who is the brother of Fakira, the co-purchaser who is now in possession of the same. It has also been deposed to by D.W. 2 that one Maheswar Sahu had purchased an area of Ac. 0.05 decimals from Pitei Patra long back in the year 1956 and that now stands recorded in the name of Maheswar. So, the evidence being there on record that prior to the publication of record of right in the hal settlement, there having already been the alienations of land measuring Ac. 0.77.1/2 decimals from out of the land of Halu as it stood recorded as per the sabik settlement and that too towards the share of that branch of Pitei, in my considered view, the trial court was right in dismissing the suit for partition of the land which now stands in the record of right of the current settlement even without going to specifically record a finding of prior partition. The trial court upon analysis of evidence has given a categorical finding that the alienations of the properties out of sabik khata no. 7 have been in excess of the share of the branch of Pitei. This has not at all been touched by the lower appellate court. It has taken the view ignoring the above vital aspects having fatal consequence on the suit by merely proceeding to say that as there cannot be a finding of prior partition on the basis of evidence on record and since the properties are standing jointly recorded, the same are liable to be partitioned in view of the settled law that a suit for partial partition is maintainable. 10. The fundamental rule is that a partition suit should embrace all the joint properties of the parties concerned in the suit. Violation of that rule will result in the multiplicity of litigation, which all parties and courts must avoid and discourage. The rule is primarily based on considerations of equity and convenience; it belongs more to the province of adjective law than substantive law. Violation of that rule will result in the multiplicity of litigation, which all parties and courts must avoid and discourage. The rule is primarily based on considerations of equity and convenience; it belongs more to the province of adjective law than substantive law. There is however relaxation in certain cases and a partial partition can be allowed; (a) where different portions of the property lie in different jurisdictions, or (b) when some portions of the property is at the time incapable of partition, or (c) when the property from its nature is impartible, or (d) the property held jointly with strangers who cannot be joined as parties to a general suit for partition, or (e) where co-tenants by mutual agreement decide to make partition of a part of the joint property retaining the rest in common. However, it has to be weighed in mind that the court which has the general jurisdiction administering both with the equitable remedies; may determine the issues of title, investigate the disputes between different parties claiming the share, and then proceed with the partition so as to dispose of the whole controversy between them. In essence, the limitations, attending proceedings in partition are constantly weakening and the tendency to do full and complete justice to the parties in one is becoming irresistible. So, in order to decide whether in the facts and circumstances of the case the partial partition if can be ordered even when the case comes under the ambit of the relaxations to the general rule, it has to be kept in view that when the partial partition is proved or admitted, the presumption arises that there has been an entire partition with reference to all the rights of the properties and that should not be taken undue advantage of by the suitor by getting the decree for partial partition, having remained in possession or enjoyment of rest of the properties and thereby he would be later on banking upon the presumption all throughout to thwart the move for partition of those properties in his control and disposal. 11. Careful reading of para 11 of the judgment of the lower appellate court clearly shows that the settled position of law has not been appreciated in its proper prospective and have rather been erroneously applied in the fact and circumstances of the case. 11. Careful reading of para 11 of the judgment of the lower appellate court clearly shows that the settled position of law has not been appreciated in its proper prospective and have rather been erroneously applied in the fact and circumstances of the case. Here it is not a question that the plaintiffs leaving some joint family properties are asking for partition of rest of the joint family properties. But the case in hand as has been borne out of evidence is that the plaintiffs branch have already sold portions of the land belonging to the joint family and have filed the suit for the properties as it stands recorded in the current settlement. The plaintiffs have not explained all these and have rather suppressed these material facts. Furthermore, it is also seen that the plaintiffs have not set up a case that all those prior alienations have either been made by the Karta of the family for the benefit of the family or even by those members to meet the need of the family to their knowledge and with their consent or even that by their later conduct stretching over a long period of time as regards the dealing with the property, they have so ratified such alienations. There has been absolutely no pleading on any such alienations whatsoever which amounts to suppression as has been shown by the defendants through evidence. In such situation, where court is not in a position to exactly ascertain the extent of sale of the properties by the plaintiff’s branch, it ought not to have gone for partition of the rest properties as it may lead to a serious consequence that the plaintiffs may get undue advantage being entitled with the land more than their entitlement in law and thereby causing serious deprivation and injustice to the adversary. So, in my considered view, the suit has to be said to have not been proper constituted so as to enable the court to pass a preliminary decree as prayed for in accordance with law resolving the whole controversy amongst the parties with reference to the rights of all over all the properties. 12. In the result, the appeal stands allowed. The judgment and decree passed by the lower appellate court are hereby set aside and those passed by the trial court stand restored. 12. In the result, the appeal stands allowed. The judgment and decree passed by the lower appellate court are hereby set aside and those passed by the trial court stand restored. However, in the facts and circumstances, no order as to cost is passed.