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2016 DIGILAW 903 (ORI)

Kishore Swain v. Usha Nayak

2016-10-05

D.DASH

body2016
JUDGMENT : The appeal has been directed against the judgment and decree passed by the learned Additional Civil Judge (Senior Division), Cuttack in T.A. No. 99 of 1994. The respondent nos. 1 to 4 as the plaintiffs had filed the suit for partition of the property described in schedule of the plaint allotting them the land under plot no.160 in khata no. 194 of mouza Uttampur comprising of Ac0.30 decimals. The suit having been dismissed, the unsuccessful respondents had carried an appeal under section 96 of the Code of Civil Procedure. As the same has been allowed and the suit has accordingly been decreed, the defendants being aggrieved by the same have filed the instant second 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 Baikuntha Nayak and Baidhara Swain have been jointly recorded with the land described in the schedule of the plaint as per the records of 1973 settlement. Said plaintiffs are the legal representatives of Baikuntha. The other recorded tenant, Baidhara has been arraigned as defendant no.1 and other defendants are his brother and sons. It is the case of the plaintiff that Baikuntha being the owner was in possession of the land under plot no.160 measuring Ac0.30 decimals, whereas defendants are in possession of the land measuring Ac0.10 decimals under plot no.161. The plaintiffs claim to have their residential house over that land measuring Ac0.30 decimals and have also grown some trees over there. The defendants stated to be having their own house in the land under plot no.161. It is also submitted that during the settlement operation in the year 1973, Baikuntha feel ill and therefore, as he could not take step for separate recording of the land as per their possession in the field as the owners of the respective plots, the defendants have somehow managed to get the joint recording done. On the basis of said joint recording when they attempted to encroach upon a portion of the land in possession of the plaintiffs, request for partition of the land in accordance with the possession was made. Defendants as did not respond to the same, the suit has been filed. 4. On the basis of said joint recording when they attempted to encroach upon a portion of the land in possession of the plaintiffs, request for partition of the land in accordance with the possession was made. Defendants as did not respond to the same, the suit has been filed. 4. The defendants have not contested the suit from the very beginning. The trial court on the face of the joint recording of the land described in the schedule as per the record of 1973 settlement as proved by the plaintiffs and marked Ext.1 and in the absence of any evidence to conclude that there had been prior partition between Baikuntha and Baidhara specifically with allotment of Ac0.30 decimals of land under one plot in favour of Baikuntha and rest out of Ac0.40 decimals in favour of Baidhara, dismissed the suit as laid refusing to pass a decree for partition with allotment of Ac0.30 decimals of land under plot no.160 from out of the total land described in the schedule in favour of the plaintiffs as prayed for. So the trial court dismissed the suit. 5. In the appeal filed by them, their suit has been decreed allotting them specifically this Ac0.30 decimals of land under plot no.160 as claimed by them from out of the total Ac0.40 decimals of land described in schedule of the plaint. 6. I have carefully read the judgment of the lower appellate court and frankly speaking with all efforts to the best of my ability, it simply does not occur to me and I have not been able to search out any such reason as to how the plaintiffs have been favoured with the said decree by the lower appellate court allotting Ac0.30 decimals of land in their favour merely on the basis of finding relating to possession on the face of the settled position of law, in the absence of pleading even been advanced by the plaintiffs that by such possession for long period fulfilling all other requirements, they have thereby derived the title over it through any legal mode. Moreover, after holding the plaintiff’s entitlement of Ac0.30 decimals of land, the lower appellate court directed the trial court to execute the order as passed above which is again shocking to note. 7. The appeal has been admitted on the following substantial question of law:- “1. Moreover, after holding the plaintiff’s entitlement of Ac0.30 decimals of land, the lower appellate court directed the trial court to execute the order as passed above which is again shocking to note. 7. The appeal has been admitted on the following substantial question of law:- “1. Whether the suit as laid is maintainable in the eye of law? 2. Whether the plaintiffs in a suit for partition in respect of a joint holding can claim particular extent of land to be allotted to him in his share without making a prayer for declaration of title with respect to that extent of land and without pleading and proving that in a prior partition that particular identifiable extent of land had fallen to his share? 3 Whether in the absence of proof of prior partition by allotment of Ac0.30 decimals of land from out of Ac0.40 decimals to the plaintiffs, the lower appellate court is right in holding the plaintiffs entitlement as such with great disparity and passing a decree for partition accordingly merely finding possession in the absence of any claim of title by adverse possession and on the face of the settled law that mere possession of land does not enure to the benefit of one co-owner which is treated as the possession for and on behalf of all ?”. 8. Learned counsel for the appellants submits that under no circumstance, the suit could have been decreed granting the relief of partition as prayed for by allotment of Ac0.30 decimals of land in favour of the plaintiff. She further contends that even accepting the oral evidence of the possession of the plaintiffs in respect of Ac0.30 decimals of land, there remains no other evidence in support of their claim over that the Ac0.30 decimals of land so as to dislodge the legal presumption as it arises from Ext.1 by depriving the defendants of equal extent of land i.e. Ac0.10 decimals of land more. She next submits that the lower appellate courts judgment and decree are wholly unsustainable in the eye of law. 9. She next submits that the lower appellate courts judgment and decree are wholly unsustainable in the eye of law. 9. Learned counsel for the respondents contends that under no such circumstance, the suit can be dismissed in its entirety by the trial court and it should have exercised the power under order 7 rule 7 of the Code in the present fact situation and evidence in passing preliminary decree for partition of the entire property described in the schedule of the plaint, entitling the plaintiffs with one half and the defendants with the other and for partition looking at the convenience of the parties, giving regard to their possession and taking into consideration all other equitable factors as found just and proper. With projected rival case of the parties and in view of the evidence on record although, learned counsel for the respondents submits that the plaintiffs are in possession of Ac0.30 decimals of land for long period which they have proved yet has not been able to place anything before this Court as to how the plaintiffs claim over Ac0.30 decimals of land has been allowed and how the defendants have been deprived of Ac0.10 decimals of land, over and above Ac0.10 decimals of land which are in their possession on the face of the standing presumption that the plaintiffs on one hand and the defendants on the other having equal interest over the total land so recorded under Ext.1. At last it is contended that the lower appellate court has granted the decree finding long possession of the plaintiffs in respect of the Ac0.30 decimals of land having their houses etc to the knowledge of the defendants which having stood for a long time should not be disturbed. 10. Admittedly, the Record of Right relating to the land described in schedule of the plaint shows the joint recording in favour of Baikuntha and Baidhara There remains no further indication whatsoever. The legal presumption thus stands that both have half interest over the total land recorded under that khata. That khata comprises of two plots, one plot comprising of Ac0.30 decimals and other containing Ac0.10 decimals. Plaintiffs are claiming Ac0.30 decimals of land and their further case is that they are in possession of the same having houses over there, so also to have planted some trees. That khata comprises of two plots, one plot comprising of Ac0.30 decimals and other containing Ac0.10 decimals. Plaintiffs are claiming Ac0.30 decimals of land and their further case is that they are in possession of the same having houses over there, so also to have planted some trees. The settled position of law is that the possession of one co-owner is to be deemed the possession for and on behalf of all the co-owners. Here the plaintiffs have not projected any such case so as to exclude the defendants from out of the land under possession of the plaintiffs. There is also no such acceptable evidence as regards partition of the property in schedule of the plaint by metes and bounds more so with such allotment of Ac0.30 decimals of land to the plaintiffs and Ac0.10 decimals of land to the defendants. The plaintiffs while not pleading has also placed no evidence as regards any such explanation about such disparity and deprivation caused to the defendants which on its face appears to be unfair and unreasonable. So when the plaintiffs laid the claim over major portion of the land extending to 75% of the total land unless they prove that such was the division between the two recorded tenants through necessary documents or by any such legally permissible mode being acted upon and accepted by the parties for a long period as required under law, the refusal to grant the relief to the plaintiffs as prayed for cannot be said to a flawed one. However, in this suit for partition, the trial court while declining to grant the relief for partition with allotment of Ac0.30 decimals of land in favour of the plaintiffs, if could have gone for passing the preliminary decree for partition dividing the entire property in two equal half entitling the plaintiffs to one half and rest half to the defendants and for partition of the suit property accordingly respecting their possession as far as possible and practicable looking at the convenience and taking other equitable factors into consideration now arises for consideration. Unfortunately, in the suit there remains no such other supporting facts in the pleadings which are essential for the purpose. Unfortunately, in the suit there remains no such other supporting facts in the pleadings which are essential for the purpose. In view of above, this Court is of the clear opinion that the lower appellate court has fallen in grave error both in fact and law by going for decreeing the suit holding the plaintiffs entitlement with Ac0.30 decimals of land and rest only Ac0.10 decimals of land as of the defendants. The trial court in the present case had rightly refused to grant the relief to the plaintiffs as prayed for in the suit as laid which is not maintainable in the eye of law. The aforesaid discussion and reasons thus provide the answers to the substantial questions of law framed which stand in favour of the appellants. 11. In the wake of aforesaid, the appeal stands allowed. The judgment and decree passed by the lower appellate court are hereby set aside and those of the trial court are restored. In the facts and circumstances, no order as to cost is passed.