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2017 DIGILAW 1352 (ORI)

Batakrushna Rout v. Kumuda Dei

2017-11-24

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. Plaintiff no.2 is the appellant against confirming judgment. The suit was for permanent injunction. 2. The case of the plaintiffs is that the suit land was jointly recorded in the name of Gobinda Rout, Musei Rout, Banei Rout, Ananda Rout and Dinabandhu Rout. They were the members of the joint family. Their dwelling house exists over the suit land. The successors in interest of the above tenants including the plaintiffs are in occupation of the suit land. The suit land has not been partitioned by metes and bounds. Defendant nos.1 and 3 are strangers to the family of the plaintiffs and defendant no.4. They have fraudulently obtained a registered sale deed from defendant no.4 measuring an area A0.02.2 of the suit land comprising the private joint passage. The sale deed is a nominal one. They tried to disturb the peaceful possession and enjoyment of the suit homestead land and obstructed the joint passage. With this factual scenario, the suit was instituted seeking the relief’s mentioned supra. 3. The defendants filed written statements denying the assertions made in the plaint. The case of the defendants is that the plaintiff and defendants are the descendants of a common ancestor, namely, Uchhab. They are all members of the family. The homestead land and agricultural lands were joint family properties of Raghu and Chandri. After the death of Raghu and Chandri, their successors-in-interest possess the land separately for their convenience. In the last settlement, some of the properties were jointly recorded, whereas some properties were separately recorded. Plot no.214 measuring an area about A0.09 dec., on which the ancestral dwelling house of the parties stands, was recorded in the name of the ancestors of the parties. The suit plots were recorded in the last settlement as house site and bari land in the name of Gobina, Kusei, Ananda, Kanhu and Dinabandhu, the successors of the plaintiffs and defendant no.4. They partitioned their properties. The south-eastern portion measuring an area of A0.02.2 links fell to the share of defendant no.4. The defendant no.4 had transferred the same to defendant nos.1 to 3 on 10.11.77 by means of a registered sale deed. Possession of the land was delivered to the aforesaid defendants. The matter was agitated before the Consolidation Officer, who after due enquiry, recorded the name of defendant nos.1 to 3 along with the share holders. 4. The defendant no.4 had transferred the same to defendant nos.1 to 3 on 10.11.77 by means of a registered sale deed. Possession of the land was delivered to the aforesaid defendants. The matter was agitated before the Consolidation Officer, who after due enquiry, recorded the name of defendant nos.1 to 3 along with the share holders. 4. On the inter se pleadings of the parties, the learned trial court framed five issues. The parties led evidence. The learned trial court came to hold that the plaintiffs and the defendants are descendants of a common ancestor. Their dwelling house stands over plot no.214. The defendants 1 to 3 are not stranger to the family. The suit is not maintainable. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the learned trial court before the learned A.D.J., Jajpur in Title Appeal No.19 of 1984/75 of 1987, which was eventually dismissed. 5. The appeal was admitted on the following substantial question of law: “Whether the lower appellate court committed an error of record in saying that the plaintiffs never pleaded a case of Section 44 of the T.P. Act and Section 4 of the Partition Act and further the provision of Section 4 of the Partition Act does not apply to a case of a stranger-purchaser on the ground that he stepped into the shoes of a co-sharer.” 6. Heard Mr. S.K. Samantray, learned Advocate on behalf of Mr. S.P. Mishra, Senior Advocate for the appellant. None appeared for the respondents. 7. Mr. Samantray, learned Advocate for the appellant submitted that the courts below have committed a manifest illegality in holding that the plaintiff and defendant no.1 to 3 are co-sharers. The sale deed was a nominal one. The courts below failed to frame an issue as to whether there was earlier partition by meets and bounds between the members of the plaintiff family or not so as to attract under Section 44 of T.P. Act. 8. The plaintiffs have furnished the following genealogy in the plaint. Uchhab Raghu Rout Kusei(RS) Madhei Rohini Ananta Kanhu Ananda(RS) Banchu Krupa Dinabandhu (RS) Bansi(RS) Shankar Gobinda (RS) Nityananda(P1) Kartika=Fula Punia=saki Achuti(D4) Bata Krushna (P2) Bansidhar (P3) The plaintiffs assert that they are the descendants of the common ancestor-Raghu. According to the defendants, Raghu and Chandri are two brothers being sons of Uchhab. They are the descendants of Chandri. Uchhab Raghu Rout Kusei(RS) Madhei Rohini Ananta Kanhu Ananda(RS) Banchu Krupa Dinabandhu (RS) Bansi(RS) Shankar Gobinda (RS) Nityananda(P1) Kartika=Fula Punia=saki Achuti(D4) Bata Krushna (P2) Bansidhar (P3) The plaintiffs assert that they are the descendants of the common ancestor-Raghu. According to the defendants, Raghu and Chandri are two brothers being sons of Uchhab. They are the descendants of Chandri. The courts below have concurrently held that the plaintiffs and the defendants are descendants of a common ancestor. There is no perversity in the said findings. 9. In Gautam Paul v. Debi Rani Paul and others, AIR 2001 SC 61 , 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 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. 10. 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. 10. Both the courts concurrently held that the plaintiffs and defendants are descendants of a common ancestor. Thus Sec.4 of the Partition Act shall not come into play. Further the consolidation operation in the area, where the suit land falls, started. Several objection cases were filed by the parties under Section 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (“O.C.H. & P.F.L. Act”). In one of the case, Balaram Rout, defendant and others were the objectors. Fula, Kartika and others were opposite parties. The Consolidation Officer after adjudicating rival claims directed to record the suit schedule plot in the name of the objectors. The said order attained finality. There is no prayer to set aside the order passed by the Consolidation Officer. Thus, the suit for permanent injunction is not maintainable. The substantial question of law is answered accordingly. 11. Resultantly, the appeal fails and is dismissed. No costs.