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2016 DIGILAW 896 (ORI)

Gurubari Padhan v. Debajani Sahu

2016-10-04

D.DASH

body2016
JUDGMENT : 1. The defendant no.1 being aggrieved by the judgment and decree passed by the learned Civil Judge (Sr. Divn.), Bargarh in T.S. No. 110 of 1999 had filed this appeal under section 96 of the Code of Civil Procedure. She having died during pendency of this appeal, now her legal representatives have been substituted and are pursuing this appeal. The respondent no. 1 as the plaintiff had filed the suit for declaration of her right, title and interest over the suit schedule-B land in the alternative half interest over suit schedule-A land along with the respondent no. 2 (defendant no.4). The suit has been decreed declaring the right, title and interest of the respondent no. 1 (plaintiff) as also respondent no. 2 (defendant no. 4) in respect of half interest over the land described in schedule-A with a decree for realization of the mesne profit to the tune of Rs. 42,000/-from the appellants and respondent no. 2 (defendant no.4). 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 Dhanu Padhan is the father of the plaintiff and defendant no. 4. The schedule-A land is the joint family property of Dhanu and his brother namely, Khageswar Padhan. It is stated that during the lifetime of Dhanu, there was separation between Dhanu and Khageswar both in mess and estate and schedule-B which is a part of schedule-A land had fallen to the share of Dhanu whereas the rest part of schedule-A after exclusion of schedule-B land had fallen to the share of Khageswar and Dhanu accordingly was possessing the said land. It is stated that Dhanu died in the year 1996 and his wife had predeceased him. The defendant no. 4 is unmarried and had left the village when his whereabout remained unascertained. The plaintiff claims to have succeeded to the properties of Dhanu along with Radhe. In consolidation operation, there was an error which has been corrected later in the mutation case wherein the name of the plaintiff has been inserted. The defendant no. 4 is unmarried and had left the village when his whereabout remained unascertained. The plaintiff claims to have succeeded to the properties of Dhanu along with Radhe. In consolidation operation, there was an error which has been corrected later in the mutation case wherein the name of the plaintiff has been inserted. It is further stated that during the lifetime of Dhanu when he was old, the plaintiff was residing in her husband’s house and then Dhanu had given schedule-B land on kara basis to the defendants who were paying kara to Dhanu. But some time after the death of Dhanu, they have stopped payment from the Kharif season of the year 1999. It is alleged that the defendants are not leaving the possession of schedule-B land and they have managed to get names of fictitious persons included in the consolidation operation such as Kartika Padhan, Sankirtan, Akaula, Bikala, Kapila who in fact do not owe any existence in village. The plaintiff thus claims her right, title and interest over schedule-B land and seeks the relief of mesne profit. She has also sought for the relief of recovery of possession. 4. The defendant nos. 1, 2 and 3 coming forward to the contest the suit in filing the written statement inter alia pleaded that after the death of Banka, his two sons namely, Khageswar and Dhanu succeeded to the properties and the entire ancestral property of the family had been amicably partitioned between Khageswar and Dhanu. Each of them was possessing separate portion to the exclusion of one another. It is stated that Khageswar while in possession of his share of land separately died leaving behind defendant nos. 2 and 3 who are his son and defendant no. 1, the widow. Dhanu was having no male issue and he had voluntarily abandoned his share in favour of these defendant nos. 2 and 3 who thus claim to have been in exclusive possession of the share of Dhanu as also the land in the share of Khageswar. Thus they claim to have exclusive right, title and interest over entire schedule-A land which includes schedule-B. The consolidation record of right is asserted to have been correctly prepared. 5. Faced with the above rival pleadings, the trial court framed the following issues:- (i) Is there any cause of action for the plaintiff to file the suit? Thus they claim to have exclusive right, title and interest over entire schedule-A land which includes schedule-B. The consolidation record of right is asserted to have been correctly prepared. 5. Faced with the above rival pleadings, the trial court framed the following issues:- (i) Is there any cause of action for the plaintiff to file the suit? (ii) Whether the plaintiff is the exclusive owner of ‘B’ schedule suit land? (iii) Whether Dhanu Padhan abandoned his share of land to defendants during his life time and since then the defendants are in exclusive possession of the same? (iv) Whether the decision in mutation proceeding bearing no. 1378/98 is legal? (v) Whether the defendants are the ‘Kara’ tenants of the plaintiff since 1996 and thereby they are liable to pay Kara dus to her as alleged in the plaint? (vi) Whether the plaintiff is entitled for the relief prayed for? (vii) Whether the defendants are liable to pay Rs.42,000/-(rupees forty two thousand) as claimed by the plaintiff towards the mesne profit from the suit land to her jointly with defendant no.4.? (viii) To what relief the plaintiff and proforma defendant no. 4 are entitled from the view point of equity? Firstly, taking up issue no. (iii) for decision, upon analysis of evidence in the touchstone of rival pleadings, the answer has been given by the trial court that Dhanu had not abandoned his share of land to the defendants during his lifetime. It has also been held that such possession of the said land by the defendants is not in exclusion of the plaintiff but is permissive. Next going to decide issue no. (v), as regards the land being given on kara basis by Dhanu to the defendants, the answer has been held in the negative. On issue no. 4, the decision has been that there is no sufficient evidence to record that the plaintiff is the exclusive owner of the schedule-A land after the death of his father. Then coming to issue no. (i), the trial court has held the plaintiff to be having the cause of action to file the suit. At last on issue no. (vii), the plaintiff has been held entitled to get the mesne profit to the tune of Rs.42,000/-in respect of her half share of schedule-A land for being in enjoyment of the defendants. 6. (i), the trial court has held the plaintiff to be having the cause of action to file the suit. At last on issue no. (vii), the plaintiff has been held entitled to get the mesne profit to the tune of Rs.42,000/-in respect of her half share of schedule-A land for being in enjoyment of the defendants. 6. I have heard the learned counsel for the parties at length on the question of sustainability of finding of the trial court on all the issues. I have also perused the judgment of the trial court and gone through the evidence, both oral and documentary as let in by the parties. 7. The relationship between the parties is not in dispute. It is the case of the defendant nos. 1 to 3 that the entire ancestral properly of the family had been partitioned between Khageswar and Dhanu each possessing some portion as of their share which is also the case of the plaintiff, although little bit specific that the schedule-B property had been in the share of Dhanu. It has been admitted by the defendants that Dhanu was in possession of portion of schedule-A land as of the share. The defendant nos. 1 to 3 specifically state that Dhanu had abandoned the right, title and interest over his land to them since long and as such they have been in possession of the entire schedule-A land which includes the land in the share and in possession of the Dhanu. Thus as owner asserting all the rights as such to the knowledge of all concerned, they claim to be in possession of the same. The burden of proof lies upon the defendant nos. 1 to 3 to establish their case so as to exclude the plaintiff and defendant no. 4 from their entitlement over the said property both in fact and as per law. No documentary evidence is forthcoming in respect of that abandonment by Dhanu as is claimed by the defendant nos. 1 to 3. The pleading is also not in clear word showing the day, date and year of such abandoned by Dhanu. These defendants have also not set up a case of ouster. On this score there merely remains the oral evidence of D.W.2 who has also not stated about said abandonment. 1 to 3. The pleading is also not in clear word showing the day, date and year of such abandoned by Dhanu. These defendants have also not set up a case of ouster. On this score there merely remains the oral evidence of D.W.2 who has also not stated about said abandonment. This D.W.2 has admitted that the names of persons which find place in the consolidation ROR do not belong to their family and as such have no right over the suit land. This clearly goes to show the erroneous recording of the land in the consolidation ROR. In view of the admitted case of the parties as well as the evidence on record, this Court on an independent assessment of those comes to a conclusion that it has not been established by evidence by the plaintiff that Dhanu in the said partition had been allotted specifically the land described in schedule-B of the plaint and as such was in possession of the same as of the share, though it has been shown that Dhanu was in separate possession of some property during his life and so also Khageswar. Next it is found that the plaintiff and the defendant no. 4 have their half interest over the schedule-A land whereas the defendant nos. 1 to 3 have the interest over the rest half. 8. It is not borne out from evidence on record and in fact the plaintiff has failed to prove that the defendant nos. 1 to 3 were in possession of schedule-B land which was in the share and possession of Dhanu particularly on kara basis. In view of the failure of the defendants to establish their case of abandonment by Dhanu and when they have not set up the case of ouster, their possession in respect of the property in possession of Dhanu which falls a part schedule-A has to be presumed to be permissive irrespective of its length and continuity and it has to be said to be for and on behalf of the plaintiff and defendant no. 4 after the death of Dhanu being his legal representatives and successors when the defendant nos. 1 to 3 are none else but co-sharers. In that view of the matter, this Court without least hesitation holds that for such possession of the property by the defendant nos. 4 after the death of Dhanu being his legal representatives and successors when the defendant nos. 1 to 3 are none else but co-sharers. In that view of the matter, this Court without least hesitation holds that for such possession of the property by the defendant nos. 1 to 3, they should not have been saddled with the liability of payment of mesne profit and the trial court has committed the mistake on that score. 9. For the aforesaid discussion and reasons, I wholly agree with the ultimate conclusion of the trial court that the plaintiff and defendant no. 4 have their half interest over the schedule land with rest remaining with defendant nos. 1 to 3 and the conclusion that the defendant nos. 1 to 3 are liable to pay the mesne profit to the tune as assessed stands negated. 10. At this stage, I find that here in the suit, the plaintiff had claimed declaration of right, title, interest and recovery of possession in respect of schedule-B land pleading the same to have been the share of land of Dhanu that he had got in the partition. The court is not in a position to conclude that schedule-B land had fallen to the share of Dhanu and that he was in possession of the same. But the finding has been that entire land in schedule-A is in possession of defendant nos. 1 and 3 where the plaintiff and defendant no. 4 have half interest. Therefore, while declining the plaintiff to be granted with the reliefs of declaration and recovery of possession in respect of schedule-B land in the interest of justice and in exercise of power under Order 7 Rule 7 of the Code of Civil Procedure in the fitness of things, a preliminary decree for partition of schedule-A land thus stands as the need for being passed which in the facts and circumstances and in view of the finding also so arises as the demand of law and equity. This cannot be said to be a larger relief than prayed for nor cannot go to invite the objection of any surprise being caused to the defendant nos. 1 to 3 or to have deprived them of the opportunity to meet on that score. 11. This cannot be said to be a larger relief than prayed for nor cannot go to invite the objection of any surprise being caused to the defendant nos. 1 to 3 or to have deprived them of the opportunity to meet on that score. 11. In the result, the appeal stands disposed of with modification of the decree passed by the trial court to the extent as indicated above. In the peculiar facts and circumstances of the case, the parties are directed to bear their respective cost all through. 12. The suit is decreed preliminary declaring the entitlement of the plaintiff and defendant no. 4 in respect of their half share over schedule-A land with the rest half being declared as the entitlement of the defendant nos. 1 to 3. The parties are hereby directed to have amicable partition of the property within a period of three months hence in accordance with the above and in the event of failure, any party/parties is/are at liberty to apply before the trial court to make the preliminary decree final by partitioning the property in the field with the help of Civil Court Commissioner in accordance with and as per the above entitlement of the share over the same and regard being had to the convenience of the parties and properly taking other equitable factors as would be standing into consideration.