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2017 DIGILAW 1237 (ORI)

Krushna Chandra Panigrahi v. Bhagirathi Sahu

2017-11-01

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 01. Defendant no.1 is the appellant against a reversing judgment. 02. The case of the plaintiff is that on 04.12.1953 the original owners sold the suit land to Bhabi Dei. Bhabi sold the suit land with house to plaintiff and defendant no.2. They were in possession of the same. They were separate in mess for the last seven years, but the ancestral homestead land remained joint. The suit land is a part of joint homestead land. On 17.02.1975, defendant no.2 executed the sale deed in favour of defendant no.1 in respect of Ac.0.04 dec. of land. Defendant no.1 is a stranger to the family and is not entitled to possess the property. Defendant no.1 collected materials for construction of a house on the land. With this factual scenario, the plaintiff instituted the suit for permanent and mandatory injunction. 03. Defendant no.1 entered contest and filed a written statement. The case of the defendant no.1 is that Bhabi had constructed a hutment. She sold Ac.0.22 dec. to plaintiff and defendant no.2. The nature of the land is bagayat. There was a partition between plaintiff and defendant no.2 of all properties. On 17.12.1975, defendant no.2 had sold an area Ac.0.04 dec. out of Ac.0.11 dec. to him by means of a registered sale deed dated 17.12.75 for a valid consideration. Since then he is in possession by constructing a house. 04. The defendant no.2 filed a written statement. It was pleaded that the suit land was never used as a part of the dwelling house. The original owner had planted different kind of trees on the land. Bhabi had constructed a hutment. The same became dilapidated. She sold the land to him and plaintiff. They partitioned the same. They were in possession of their respective shares. He sold the land to defendant no.1 for legal necessity. 05. Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence. The learned trial court came to hold that there was a partition between the plaintiff and defendant no.2. There was no dwelling house over the suit schedule land. It was not appurtenant to homestead of the plaintiff. The plaintiff and defendant no.2 were living separately. The kissam of the land is bagayat. Held so, it dismissed the suit. The plaintiff filed T.A. No. 28 of 1977-I before the learned Additional District Judge, Bhadrak. There was no dwelling house over the suit schedule land. It was not appurtenant to homestead of the plaintiff. The plaintiff and defendant no.2 were living separately. The kissam of the land is bagayat. Held so, it dismissed the suit. The plaintiff filed T.A. No. 28 of 1977-I before the learned Additional District Judge, Bhadrak. The same having been allowed, defendant no.1 filed S.A. No. 109 of 1980 before this Court. The appeal was remitted back to the learned appellate court to dispose of the matter afresh. It was directed that the learned appellate court shall appreciate the evidence on record and find out whether the disputed property was a dwelling house or a piece of property appurtenant to the dwelling house necessary for the beneficial enjoyment and secondly, if the plaintiff and defendant no.2 are divided qua the dwelling house. After remand, the learned appellate court heard the matter and came to a finding that there was no partition between the parties. Nature of the suit property is homestead, which has been jointly purchased by the plaintiff and defendant no.2. There is absolutely no evidence that they had abandoned the idea to construct a house over the suit land. Fruit bearing trees are standing over the suit land. A house was standing over the suit land. The same was the dwelling house of Bhabi and her family members. After sale, defendant no.2 and the plaintiff were using the same. There was no partition of the property between them. The disputed property is a piece of land appurtenant to the dwelling house. Held so, it allowed the appeal. 06. The Second Appeal was admitted on the following substantial questions of law:- “(i) Whether the disputed house comes within the definition of dwelling house ? (ii) Whether the appellate court while reversing the judgment of the trial court has considered the matter in its proper perspective?” 07. Heard Mr. Bishnu Charan Swain, learned advocate on behalf of Mr. P. Kar, learned Senior Advocate for the appellant and Mr. Ramakanta Mohanty, learned Senior Advocate along with Mr. Dipankar Bharadwaj, learned advocate for the respondents. 08. Mr. Swain, learned counsel for the appellant submits that the plaintiff and defendant no.2 are brothers. They had purchased Ac.0.22 dec. of land from Bhabi Dei. A thatched house was standing over the same. The same was collapsed in the cyclone of the year 1971. Dipankar Bharadwaj, learned advocate for the respondents. 08. Mr. Swain, learned counsel for the appellant submits that the plaintiff and defendant no.2 are brothers. They had purchased Ac.0.22 dec. of land from Bhabi Dei. A thatched house was standing over the same. The same was collapsed in the cyclone of the year 1971. There was no existence of house. The property was partitioned between the brothers. To press legal necessity, defendant no.2 sold the land to defendant no.1 for a valid consideration. Possession was delivered to defendant no.1. He further contends that the learned trial court came to hold that there was no dwelling house. The property was partitioned between the brothers. The nature of the land is bagayat. There is no perversity or illegality in the findings of the learned trial court. On untenable and unsupportable grounds, learned appellate court reversed the findings of the learned trial court. The suit for permanent and mandatory injunction is not maintainable. 09. Per contra, Mr. Mohanty, learned Senior Advocate argues with vehemence that the learned appellate court came to hold that there was no partition between the parties. A thatched house was standing over the suit land. The same was collapsed in the cyclone. The property does not loose the character of a homestead. He further submits that a co-sharer cannot maintain a suit for partition and seek relief under Sec.4 of the Partition Act. But then, a co-sharer can maintain a suit for permanent injunction. Thus the suit is maintainable. He relies upon the decisions of the apex court in the cases of Ghantesher Ghosh v. Madan Mohan Ghosh and others, AIR 1997 SC 471 and Gautam Paul v. Debi Rani Paul and others, AIR 2001 SC 61 . 10. But then, a co-sharer can maintain a suit for permanent injunction. Thus the suit is maintainable. He relies upon the decisions of the apex court in the cases of Ghantesher Ghosh v. Madan Mohan Ghosh and others, AIR 1997 SC 471 and Gautam Paul v. Debi Rani Paul and others, AIR 2001 SC 61 . 10. In Ghantesher Ghosh (supra), the apex Court held thus:- “A mere look at the aforesaid provision shows that for its applicability at any stage of the proceedings between the contesting parties, the following conditions must be satisfied: (1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner; (4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of preemption by undertaking to buy out the share of such transferee; and (5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house”. 11. In Gautam Paul (supra), the apex Court held that Sec. 4 of the Partition Act should be given a liberal interpretation. However, giving a liberal interpretation does not mean that the wordings of the Section and the clear interpretation thereof be ignored. The relevant wordings are "dwelling-house belonging to an undivided family". Thus it must be dwelling house belonging to an undivided family. The further requirement is that the transfer must be to a person who is not a member of "such family". The relevant wordings are "dwelling-house belonging to an undivided family". Thus it must be dwelling house belonging to an undivided family. The further requirement is that the transfer must be to a person who is not a member of "such family". The words "such family" necessarily refers to the undivided family to whom the dwelling house belongs. It was further held that merely because a person is related by blood through common ancestor, does not make him a member of the family within the meaning of the term as used in Sec.4 of the Partition Act. It further held that there is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Sec.4 of the Partition Act comes into play. Except for Sec. 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Sec.4, is exercised the conditions laid down therein have to be complied with. 12. The Calcutta High Court in the case of Khirode Chandra Ghoshal v. Saroda Prosad Mitra, Vol-7 (1910) C.L.J., 436 held that the expression ‘house’ “embraces, not merely the structure or building, but includes also adjacent buildings, curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier.” The said decision has been quoted with approval by this Court in the cases of Bhabani Bewa and others vs. Akshoy Kumar Das and another, Vol-21 (1955) C.L.T. 371, Jati Bewa and others v. Shyam Sundar Sahu and others, 1970 (1) C.W.R. 283 and Gangadhar Malik v. Kahnu Sethi, Vol-38 (1972) CLT 1244. 13. Admittedly there was a thatched house over the suit land. 13. Admittedly there was a thatched house over the suit land. The house was collapsed in the cyclone of the year 1971. The kissam of property remains unchanged in spite of the fact that the thatched house was collapsed in the cyclone. The defendant no.1 was a stranger to the undivided family. He is not entitled under the second paragraph of Sec.44 of the Transfer of Property Act to have joint possession of the said lands with the plaintiff and defendant no.2, nor are they entitled to common or part enjoyment of the suit property. 14. On an anatomy of pleadings and evidence on record, learned appellate court held that there was no partition between the parties. True it is, a co-sharer cannot maintain a suit for partition and seek relief under Sec.4 of the Partition Act in view of the decisions of the apex Court in the case of Ghantesher Ghosh (supra) and Gautam Paul (supra). Till and until the stranger transferee sues for partition and separate possession of the undivided share transferred to him by the concerned co-sharer, the other co-sharer can maintain his possession. In view of the discussions made above, the conclusion is irresistible that a co-sharer can maintain a suit for permanent injunction. The co-sharer is not remediless. In the case of Gangadhar Malik (supra), the plaintiff’s suit for permanent injunction was decreed. 15. A priori, the appeal fails and is dismissed. There shall be no order as to costs.