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2017 DIGILAW 609 (ORI)

Sanapati Bissoi v. Bamadev Bissoi

2017-06-19

D.DASH

body2017
JUDGMENT : The unsuccessful defendant no. 1, 8 and 9 in Civil Suit No. 24 of 2006 (C.S. No. 19/2005 of Civil Judge (S.D.) Jeypore) on the file of learned Addl. Civil Judge (F.T.C.), Jeypore have filed this appeal. They question the judgment and preliminary decree passed in the suit declaring the property under holding no. 17 of village Chandili and holding nos. 61 and 45 of village Dhanpunji to be liable for partition; holding the entitlement of the plaintiff (respondent) therein to 1/3rd share; defendant no.1 to 3 (appellant no. 1 & respondent no. 2 and 3) to be having 1/3rd share and defendant no. 4 to 7 (respondent no. 4 to 7) with the rest 1/3rd share. It is pertinent to mention here that appellant no. 1 having died during pendency of this appeal, by order dated 25.08.2015 his name has been expunged as dead, in presence of appellant no. 2 and 3 representing his estate. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that one Somanath is the common ancestor of the parties. He had three sons namely, Khagapati, Jituru and Saraju; all are dead. Plaintiff is the only son representing the branch of Jituru. The defendant no. 1 to 3 represent the branch of Khagapati, whereas rest of the defendants are the legal heirs and successors of Saraju. It is stated that Somanath had landed property in village Chandili and these lands are thus ancestral properties of the parties. It is further stated that there had never been any partition of the same amongst the parties. When in the year, 2005, the plaintiff went to have his agricultural operation over the land, the defendant no. 1 created trouble. The plaintiff then suspected some foul play in the matter. So, he convened a village panchayati and there he demanded partition. The defendant no. 1 resisted the claim of partition advanced by the plaintiff and openly declined to part with the said land. The plaintiff then could learn that when some dispute had arisen amongst the three sons of Somanath, the defendant no. So, he convened a village panchayati and there he demanded partition. The defendant no. 1 resisted the claim of partition advanced by the plaintiff and openly declined to part with the said land. The plaintiff then could learn that when some dispute had arisen amongst the three sons of Somanath, the defendant no. 1 taking advantage of the same has managed to mutate the suit land exclusively in his favour on 26.06.1972 although the original record was then standing in the name of three sons of Somanath. So the plaintiff filed the suit. 4. The defendant no. 1 in the written statement, though admitted the genealogy showing the inter se relationship amongst the parties, has denied the nature of land involved in the suit to be ancestral. He stated that Somanath had other lands which he had acquired at village Dhanpunji in the State of Chhattisgarh. It is his further case that after death of Somanath in between year 1950 to 1958, there was an oral partition amongst the sons of Somanath and each branch having got their respective shares in the said amicable division continued to possess those separately. It is stated that by a family settlement deed in the year 1961, he himself, his father and the plaintiff’s father have divided the landed properties. In that partition, defendant no. 1 got the entire suit land in his share and accordingly, he has mutated the same. It is further stated that, he in turn had divided those properties with his sons. All these are said to be within the knowledge of the plaintiff and other defendants. It is further stated that the plaintiff and his father were independently dealing with their properties and sold their properties to different persons; which are also the land of Somanath. It is alleged that the plaintiff has not brought all the properties to the hotchpot which include the properties at Dhanpunji under holding no. 61; holding no. 41; holding no. 45; holding no. 27 and holding no. 8. It is further claimed that defendant no. 2 and 3 have got their share over the land of village Lohanja, Devuda and other places. In view of the above, defendant no. 1 has also made a counter claim for partition of all the properties of Somanath. 5. The defendant no. 45; holding no. 27 and holding no. 8. It is further claimed that defendant no. 2 and 3 have got their share over the land of village Lohanja, Devuda and other places. In view of the above, defendant no. 1 has also made a counter claim for partition of all the properties of Somanath. 5. The defendant no. 2 to 7 in their separate written statement asserted that there was no partition of the suit land. They claimed to be having the right over the properties involved in the suit and as such they claim their legally entitled share in the same. The defendant no. 8 and 9 have adopted written statement of defendant no. 1. 6. On the above rival pleadings, the trial court framed following issues:- 1. Is the suit maintainable in the present form? 2. Whether the suit properties are liable for partition? 3. Whether there was any previous partition by metes and bounds among the parties, as claimed by the defendants? 4. Whether the entire properties of the family has been brought for partition in this suit? 5. Whether the plaintiff has cause of action to file the suit? 6. Whether the suit is bad for non-joinder of necessary parties? 7. To what relief, the plaintiff is entitled? Parties having led evidence, the trial court as it appears has first of all proceeded to decide issue no. 3 as regards the case projected by the defendant no. 1 and defendant no. 8 & 9 as to previous partition of the properties of Somanath at different places which in turn touches the maintainability of the suit for partition again. Viewing the evidence on record and upon their analysis, the trial court has returned the finding that there was no prior partition of the properties of Somanath amongst his sons. It has been conclusively held that the suit land is not the exclusive property of the defendant no. 1. Having said this, it has held the said property to be liable for partition amongst the parties. 7. Coming to issue no. 4 again going to hit at the maintainability of the suit in view of the defence that all the properties of Somanath have not been brought to the hotchpot, the trial court has next found that besides the land described in the schedule appended to the plaint, the land under holding no. 7. Coming to issue no. 4 again going to hit at the maintainability of the suit in view of the defence that all the properties of Somanath have not been brought to the hotchpot, the trial court has next found that besides the land described in the schedule appended to the plaint, the land under holding no. 61 and 45 of village Dhanpunji though are not within said schedule are also liable to partition as has been established in the case. So, it has finally answered that the land of Somanath under holding no. 17 of village Chandili together with those under holding nos. 61 and 45 of village Dhanpunji are liable to be partitioned. Accordingly, as per the undisputed genealogy, the trial court has allotted shares to the parties as aforesaid at para-1. 8. The defendant no. 1 and 2 now assail the said judgment and preliminary decree as under:- (a) Questioning the finding of the trial court on issue no. 3 that there was no prior partition of the property of Somanth amongst the parties; it is said that such a finding is erroneous because of the fact that the document Ext. A/5 has not been duly taken into consideration for the purpose. It is stated that said document when prima facie discloses a case of prior partition amongst the parties with allotment of specific share, there was no option left on the part of the trial court but to non-suit the plaintiff; (b) It is stated that in view of the rival case projected by the parties, these defendant no. 1 and his sons defendant nos. 8 and 9 ought to have been asked to begin with the hearing of the suit further giving them the liberty to adduce evidence after closure of the evidence of the plaintiff. The trial court having not adopted said course, it is now said that these defendant no. 1, 8 and 9 have thereby been highly prejudiced; (c) The finding on issue no. 4 is attacked as erroneous on the face of the evidence on record. The trial court having not adopted said course, it is now said that these defendant no. 1, 8 and 9 have thereby been highly prejudiced; (c) The finding on issue no. 4 is attacked as erroneous on the face of the evidence on record. So, it is said that this suit ought not to have been preliminarily decreed for partition of the properties under the three holdings; one of village Chandili and other two of village Dhanpunji; (d) The properties purchased in the name of two persons ought to have also been held as liable for partition as those have been purchased from out of joint family funds. 9. Learned counsel for the appellant while reiterating the grounds as aforesaid, further submits that the trial court under no circumstance could have excluded Ext. A/5 from consideration and by taking into account other evidence on record regarding the longstanding conduct of the parties in possessing the property, there ought to have been a finding of prior partition. His next contention is that while answering issue no. 4, the trial court has not taken a cumulative view on the evidence on record and thus conclusion arrived at is said to be founded upon perverse appreciation of evidence which according to him is liable to be set at naught. 10. Learned counsel for the respondent no. 1 and 6 contends all in favour of the findings recorded by the trial court. According to him, the trial court on just and proper appreciation of evidence having undertaken the rigorous exercise has rightly answered the crucial issues no. 3 and 4. Thus, he contends that those findings do neither have any factual nor legal flaw. According to him, the appeal does not bear merit. 11. On a careful reading of the rival case of the parties as projected in the pleadings, there remains no second opinion that the fate of this appeal hinges upon the sustainability of the findings of the trial court on issue no. 3 and 4. Therefore, it being the duty of this first appellate court, the evidence on record needs critical examination in the backdrop of the pleadings of the parties and keeping in view the rival submission as above it is to be seen as to if those findings are sustainable. 12. In this suit for partition, the defendant no. 3 and 4. Therefore, it being the duty of this first appellate court, the evidence on record needs critical examination in the backdrop of the pleadings of the parties and keeping in view the rival submission as above it is to be seen as to if those findings are sustainable. 12. In this suit for partition, the defendant no. 1’s specific plea to thwart the suit being that there was a prior partition and thus the suit is not entertainable again for the same relief of partition, the burden lies on the defendant no. 1 to prove that there had been a prior partition in terms of the pleading in the written statement. Let us therefore straight way go to the evidence of D.W.-3 who is none-other than defendant no. 1. He has stated the suit land to be the ancestral land of the parties situated in the State of Odisha as also the lands at mouza Dhanpunji acquired by Somanath. His evidence is that there was a deed of partition in the year 1961 and pursuant to the same, he is in possession of the property which he got and that he has accordingly got the property mutated in his name. It is also his evidence that later on he has partitioned those properties with his sons. This defendant no. 1 then has stated that in the partition which took place between himself, his father and Dullavnath, the defendant no. 2 to 7 were not parties. He also admits that neither Baliram nor Dumuri, were parties to that partition in the year 1961. He further states that Sarajunath nor his sons who are defendant nos. 4 to 7 were not parties to it. His evidence in clear terms is that in the partition of the year 1961, nothing has been stated about any partition to have taken place amongst Sarajunath, Dullavnath and Khagapati as regards the property of Somanath. In addition, Sarajunath, son of Somanath; defendant no. 2 and 3, the brothers of defendant no. 1 are not the signatories to the said document Ext. A/5. So, all the co-sharers are not parties to the said deed so as to say that they had so acknowledged and are bound by the contents. It is stated that in Ext. A/5, share of Khagapati as per the prior partition has been allotted. 1 are not the signatories to the said document Ext. A/5. So, all the co-sharers are not parties to the said deed so as to say that they had so acknowledged and are bound by the contents. It is stated that in Ext. A/5, share of Khagapati as per the prior partition has been allotted. The deed is also silent with regard to allotment of any property to defendant no. 2 and 3. In view of all these, the trial court having discarded this document to accept the theory of prior partition, this Court finds no justifiable reason to take a different view. It is thus held that the trial court has rightly held so. Furthermore, the subsequent mutation does neither create nor extinguish the right of the parties over the property so that is of no such significance. In view of all these, this Court even without going to look into other oral evidence concludes that the trial court has rightly discarded Ext. A/5 from consideration. The oral evidence on this score of prior partition is unsatisfactory when viewed from any angle. Thus, there remains no proof of the factum of prior partition and allotment of specific land belonging to Somanath in favour of the parties. The finding of the trial court on this issue no. 3 is thus held to be unassailable. 13. Next coming to the decision on issue no. 4, it is seen that the trial court has made elaborate discussion of the documentary evidence and when it has found the land under holding no. 61 and 45 of village Dhanpunji as proved from the side of the defendant no. 1 to be the property liable for partition, it has rightly gone to bring the land under those two holdings within the purview of partition. In view of the fact that the suit is one for partition under the circumstance when the defendant no. 1 has proved the documents wherefrom those have been found to be properties of Somanath and as such liable for partition, the trial court has rightly included those property within subject matter of the suit for partition and has passed the preliminary decree. Raising the question for the first time in the appellate court that the defendant no. 1 has proved the documents wherefrom those have been found to be properties of Somanath and as such liable for partition, the trial court has rightly included those property within subject matter of the suit for partition and has passed the preliminary decree. Raising the question for the first time in the appellate court that the defendant no. 1 ought to have been asked to begin with hearing in the suit being provided with the liberty to lead further evidence after closure of the evidence of the plaintiff is of no legal significance and more so in a suit for partition where position of the parties are inter changeable, it hardly makes the difference. In view of aforesaid discussion and reasons, the submissions of learned counsel for the appellants fail. The findings of the trial court on all the issues accordingly are given the seal of approval and stand affirmed. Resultantly, the judgment and decree impugned in this appeal are hereby confirmed. 14. In the net result, the appeal stands dismissed. In the facts and circumstances of the case, the parties are directed to bear their respective cost throughout.