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2017 DIGILAW 1461 (ORI)

Bidyadhar Behera v. Nilakantha Rout

2017-12-15

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is a plaintiff’s appeal against reversing judgment. The suit was for pre-emption. 2. Case of the plaintiffs was that the suit land is homestead. The same originally belonged to the father of Dami Dei. After the death of her father, she was in possession of the suit land. Her name was recorded in 1932 settlement. Dami Dei died in the year 1963 leaving behind her husband Laxman Behera. After death of Dami Dei, the suit land devolved on her husband, plaintiffs and defendant no.1. Laxman died in the year 1980. There was no partition of the suit land. In the present settlement, the suit land stands jointly recorded in their names. Defendant no.2 is a stranger to the family of the plaintiffs and defendant no.1. Defendant no.1 executed a registered sale deed in favour of defendant no.2 on 27.9.1978 in respect of Ac.0.01 dec. out of suit plot measuring Ac.0.05 dec. for a consideration of Rs.500/-. Defendant no.1 has 1/6th share, but he alienated in excess of share in the suit property. The sale is illegal. 3. Defendant no.2 filed a written statement denying the assertions made in the plaint. Case of the defendant no.2 was that there was a partition of the landed properties between the plaintiffs and defendant no.1. Ac.0.01 dec. of land fell to the share of defendant no.1. Defendant no.1 sold Ac.0.01 dec. of land to him by means of a registered sale deed for a valid consideration and delivered possession. He is in possession of the suit land. He is not a stranger to the family. 4. On the inter se pleadings of the parties, learned trial court struck five issues. Parties led evidence. Learned trial court came to hold that there was no partition prior to the execution of the registered sale deed. The sale in favour of defendant no.2 is invalid and not binding on the plaintiffs. The plaintiffs and defendant no.1 have title and possession over the suit land. The period of limitation runs from the date of knowledge of the plaintiffs regarding the sale deed. Defendant no.2 has not taken the plea of limitation in the written statement. Thus the suit is within the period of limitation. The plaintiffs and defendant no.1 have title and possession over the suit land. The period of limitation runs from the date of knowledge of the plaintiffs regarding the sale deed. Defendant no.2 has not taken the plea of limitation in the written statement. Thus the suit is within the period of limitation. The plaintiffs have a preferential right to purchase the interest of defendant no.1 in the suit property of Rs.500/- and directed to execute a registered sale deed on receipt of consideration from the plaintiffs within two months. Held so, it decreed the suit. Feeling aggrieved, defendant no.2 filed Title Appeal No.2 of 1986 before the learned Subordinate Judge, Nayagarh. Learned appellate court came to hold that since the suit was not filed within one year from the date of registration of the instrument, the suit is barred by limitation under Article 97 of the Limitation Act. Held so, it allowed the appeal. 5. The second appeal was admitted on the following substantial question of law enumerated in Ground No.H of the appeal memo; “H. Whether the learned appellate court acted illegally in allowing the appeal and dismissing the plaintiffs suit on the ground that the suit is barred by Article 97 of the Limitation Act ?” 6. Heard Mr. Budhiram Das, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the appellants and Miss. Soumya Priyadarsini, learned counsel on behalf of Mr. Asoke Mukherjee, learned counsel for the respondent no.2. 7. Mr. Das, learned counsel for the appellant submits that the suit property belonged to Dami Dei, mother of the plaintiffs and defendant no.1. Dami Dei died in the year 1963. Her husband died in the year 1980. After death of Dami Dei, plaintiffs and defendant no.1 became the absolute owner of the suit property. The property was not partitioned by metes and bounds. Defendant no.1 clandestinely alienated a portion of the property in favour of defendant no.2, who is a stranger. Learned appellate court fell into a patent error of law in holding, inter alia, that the suit was barred by limitation. Plaintiffs had no knowledge about the date of execution of the sale deed. After coming to know about the same, they instituted the suit within the prescribed period of limitation. 8. Per contra, Ms. Soumya Priyadarsini, learned counsel for the respondent no.2 submits that the nature of the suit land is homestead. Plaintiffs had no knowledge about the date of execution of the sale deed. After coming to know about the same, they instituted the suit within the prescribed period of limitation. 8. Per contra, Ms. Soumya Priyadarsini, learned counsel for the respondent no.2 submits that the nature of the suit land is homestead. The plaintiffs cannot maintain a suit in view of the decision of the apex Court in the case of Ghantesher Ghosh v. Madan Mohan Ghosh and others, AIR 1997 SC 471 . 9. In Alekha Mantri v. Jagabandhu Mantri and others, AIR 1971 Orissa 127, this Court held that Sec.4 of the Partition Act would also be applicable where the suit for partition was brought by a member of the undivided family against the stranger transferee and it is not necessary that the latter should have filed the suit. 10. There were divergent views of different High Courts including this Court in the case of Alekha Mantri (supra) with regard to scope and ambit of Sec. 4 of the Partition Act. The same has been set at rest by the apex Court in the case of Ghantesher Ghosh (supra). 10. There were divergent views of different High Courts including this Court in the case of Alekha Mantri (supra) with regard to scope and ambit of Sec. 4 of the Partition Act. The same has been set at rest by the apex Court in the case of 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 pre-emption 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 5 share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house”. 11. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the irresistible conclusion is that the plaintiffs cannot maintain a suit claiming the right of preemption. The substantial question of law does not arise for consideration, since the suit is not maintainable. 12. Resultantly the appeal fails and is dismissed. There shall be no order as to costs.