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2017 DIGILAW 858 (ORI)

Damodar Naik v. Jogindra Patel

2017-08-09

D.DASH

body2017
JUDGMENT : D. Dash, J. 1. This appeal has been filed under section 100 of the Code of Civil Procedure challenging the judgment and decree passed by the learned District Judge, Bargarh in R.F.A. No. 21 of 2010. The respondent asv the plaintiff has filed Civil Suit No. 72 of 2007 in the Court of the learned Civil Judge (Jr. Division), Bargarh for a permanent injunction against the appellant-defendant restraining him from entering upon the suit land and thereby create any disturbance in the possession of the plaintiff over it. The suit had been dismissed. Being thus unsuccessful, the respondent-plaintiff had filed the above noted first appeal. The lower appellate court has set aside the judgment and decree passed by the trial court and by allowing the appeal has decreed the suit restraining the appellant-defendant No. 1 from interfering with the possession of the plaintiff insofar as the suit land is concerned till he works out the appropriate remedy by partition. 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. Plaintiff's case is that the suit land was originally owned and possessed by his father late Baleswar Patel who died in the year 1980. It is stated that the plaintiff's father being the recorded tenant was paying the land revenue and after his death, the plaintiff has been raising kharif crops over a portion of the suit land leaving a part vacant. It is alleged that during the suit year when he was cutting paddy, the members of the family of the defendants caused disturbances and finally on 25.11.2007 though had, come to the suit land to cut the paddy, it having been successfully resisted, the move got foiled. In view of that the plaintiff was compelled to file for permanent injunction. 4. The defendant No. 1 coming to contest the suit in his written statement has stated that the suit land is the ancestral property of the plaintiff and they had in total 10 acres of land which had been partitioned eight years back and accordingly, the plaintiff and his two sons have been staying separately and are accordingly enjoying their respective shares of land. According to the case of the defendant No. 1, the suit land had fallen to the share of Narendra Patel as one of the sons of the plaintiff in the partition and as such he was in exclusive possession over the same. It is further stated that on 04.09.2007, said Narendra Patel sold Ac.0.42 decimals from out of the land under Plot No. 264 for a valuable consideration along with his sons by executing registered sale deed and thereafter had also further sold land measuring Ac.0.68 decimals from the plot No. 1245 and Ac.0.6 decimals from the land under plot No. 1250/1576 for a valuable consideration followed by execution of registered sale deed and, delivery of possession. It is asserted that the defendant No. 1 thus becoming the owner of the property by way of purchase under the above registered sale deeds is remaining in possession, of the same which had been delivered to him by his vendors. It is further asserted that Narendra Patel was all along in possession of those lands which he sold to the defendant No. 1 and the plaintiff had never possessed the same. The suit is said to have been filed merely to harass the defendant No. 1. 5. The trial court in view of such rival pleadings has framed as many as seven issues. Rightly going to decide Issue Nos. 4 and 6 which concern with the plaintiff's entitlement with regard to the relief of permanent injunction as also the defendants claim of purchase of suit land and possession, upon analysis of evidence the trial court has arrived at a conclusion that the plaintiff has failed to establish the fact that he is in exclusive possession of the suit land and the defendant No. 1, according to him, is not a stranger to the family having stepped into the shoes of his vendor, a member of the family. Thus they have been found to be in joint possession of the properly. Practically basing on these findings, the suit had been dismissed. 6. The lower appellate court being moved by the unsuccessful plaintiff has found the, defendant No. 1 to be the purchaser in respect of a portion of the joint family property from one of the co-sharers without the consent of others. Practically basing on these findings, the suit had been dismissed. 6. The lower appellate court being moved by the unsuccessful plaintiff has found the, defendant No. 1 to be the purchaser in respect of a portion of the joint family property from one of the co-sharers without the consent of others. It has held that the sale though not invalid in entirety is no doubt valid to the extent of the share of the vendor therein. The; next view taken is that the sale and purchase in any case cannot be pressing into the service in respect of the specific property as indicated in the deeds' of sale unless there arises a finding of partition in metes and bounds and, allotment of specific sold land in favour of the vendor/s therein. Thereafter having gone to analyze the factum of partition as pleaded by the defendant No. 1, answer has been given in the negative. It has also found out the evidence to be lacking of the mark so as to record a finding with regard to the delivery of possession of the suit land in favour of the defendant No. 1 by his vendor in the year 2007. 7. Recording all these findings as above, the first appellate court ultimately has concluded as under: 'In other words, not only the appellant but all the coparceners are to be treated to be in possession of the suit, schedule land which never suffered partition by metes and bounds; in view of the alleged purchase made in 2007, respondent shall have the only remedy to seek for partition and allotment of the suit schedule land to be share of alleged coparcener who sold it to him and adjustment of the same, at the time of division of the allotted shares. It is therefore to be held that respondent completely failed to prove the factum of partition and at the same time, exclusive physical possession of the suit schedule land since 2007 and that leads to a conclusion to the effect that the appellant and other coparceners who are aggrieved by the alleged sale shall have a right to injunct the respondent from interfering or meddling with the suit schedule land by seeking a decree of perpetual injunction. The only remedy the respondent can have is, to institute a suit for partition of the ancestral properties and get the suit schedule land allotted to the share of vendor coparcener and ultimately, its adjustment in his favour. The aforesaid aspects as discussed supra have not been considered by the learned Court below in proper perspective. It is thus to be held the learned Court below being swayed away by the alleged sale of the year 2007 committed the mistake and declined the appellant a decree of perpetual injunction vis-à-vis suit schedule land. In other words, the impugned judgment dated 18-12-2009 shall have to be interfered with, for the stated reasons aforementioned." 8. In view of the above conclusion, the lower appellate court has also found the trials court's view that the vendor coparcener was a necessary party to the suit for injunction as erroneous. So in allowing the appeal, the following order has been passed: "In the result, the appeal under Section 96 read with Order XLI, Rule 1 of the Code, at the behest of appellant stands allowed against respondent on consent. As a necessary corollary, the impugned judgment and decree dated 18.12.2009 promulgated in Civil Suit No. 72 of 2007 by the learned Civil Judge (Junior Division), Bargarh is hereby set aside. Consequently, the respondent is perpetually injuncted from interfering or coming over the suit schedule land in any manner whatsoever until he works out his remedy by partition. However, in the circumstances, the parties are directed to bear respective costs throughout." 9. Present second appeal has been admitted on the following substantial questions of law: "(a) Whether the learned lower appellate court was correct in entertaining the suit for injunction simplicitor when the sale made by defendant No. 2 in favour of defendant No. 1 was not challenged by the plaintiff? (b) Whether the learned lower appellate court was correct in shifting the burden of proof on the shoulder of the defendant No. 1 to prove partition between plaintiff and defendant No. 2 when the plaintiff who claims jointness has failed to prove the same?' 10. Learned counsel for the appellant submits that the lower appellate court ought to have recorded the finding that there had been a partition of the joint family properties and the vendor of the defendant No. 1 had got the land in his share which he sold to defendant No. 1. Learned counsel for the appellant submits that the lower appellate court ought to have recorded the finding that there had been a partition of the joint family properties and the vendor of the defendant No. 1 had got the land in his share which he sold to defendant No. 1. According to him, the finding on that score as has been returned by the lower appellate court is not the outcome of just and proper appreciation of evidence. He next submits that even in case it is said that there had been no partition in metes and bounds insofar as the joint family properties are concerned, the defendant No. 1 having purchased the property from one of the members of the joint family has stepped into his shoes having the right to joint possession and in view of the fact that the deeds of sale in his favour are not under challenge, no relief of injunction ought to have been granted in favour of the plaintiff. Thus, according to him, the respondent ought not to have been injuncted from possessing the suit land till final partition of the properties amongst the members of the joint family and working out his remedy in accordance with the same. For all these reasons, he contends that the suit for injunction, simplicitor ought to have been dismissed as not maintainable. It is also his submission that the lower appellate court has erroneously placed the burden of proof of partition upon the shoulder of the defendant No. 1 when the plaintiff has failed to prove the jointness as claimed. 11. Learned counsel for the respondents submits all in favour of the findings recorded by the first appellate court. According to him, the lower appellate court has rightly not declared the sale deeds standing in favour of the defendant No. 1 to be invalid and on the other hand having held the sale deeds to be valid to the extent of the share of vendor coparcener, in view of the settled position of law, it has very rightly protected the possession of the non-alienating the coparceners till final partition is worked out. Thus, it is contended that the lower appellate court has rightly rectified the mistake committed by the trial court and the final outcome of the first appeal, according to him, is unassailable. 12. Thus, it is contended that the lower appellate court has rightly rectified the mistake committed by the trial court and the final outcome of the first appeal, according to him, is unassailable. 12. Admittedly, the vendor of the defendant No. 1 had no exclusive right, title and interest over the property when it is said that the property originally owned and possessed by the father of the plaintiff. The defendant No. 1 has purchased the same from the son and grandson of the plaintiff. It is his case that the plaintiff and his sons including the vendor of the defendant No. 1 had partitioned the properties and the land that the vendor of defendant No. 1, namely, Narendra Patel and his sons sold had been allotted in his share. In view of that, the burden of proof is squarely upon the defendant No. 1 to establish first that there had been partition of the properties between the plaintiff and his sons and in that partition, the land which the defendant No. 1 claims to have purchased from Narendra Patel, the son of the plaintiff had been allotted in his share and he being thus in exclusive possession of the same had so delivered the possession of the same to the defendant No. 1 pursuant to the sales. The first appellate court as is seen from the judgment has discussed the evidence on these aspects in great detail. The suit land stands recorded in the name of Baleswar and his brother Maneswar and another Narayan as has been reflected in the record of right (Ext. 1). Baleswar is none other than the father of the plaintiff. The oral evidence on the score of partition has been found to be unacceptables and no such contemporaneous document has been proved in support of that. Mere recitals in that direction/light being given in the sale deeds standing in favour of the defendant No. 1 vide Exts. A and B cannot be taken to be the conclusive proof of the factum of partition. Mere recitals in that direction/light being given in the sale deeds standing in favour of the defendant No. 1 vide Exts. A and B cannot be taken to be the conclusive proof of the factum of partition. The recording of the suit land made in favour of the defendant No. 1 by way of mutation cannot be taken to be the sufficient proof with regard to partition and separate possession of the suit land by his vendors being in prior possession of the same when nothing is shown on record that such preparation of record of right had been with the consent of those recorded tenants and more particularly the plaintiff nor it is shown that the vendors of the defendant No. 1 were the recorded tenants earlier and none else. 13. In view of the aforesaid, the lower appellate court has rightly placed the burden of proof upon the defendant No. 1 to prove the factum of partition so as to thwart the move of the plaintiff for a decree for injunction so as to protect his possession from the hands of the vendee from some of the members of the family. The evidence on record having been found to be unsatisfactory, the lower appellate court is seen to have rightly held the defendant No. 1 to be not having the right to possess the suit land pursuant to the sale made by the son of the plaintiff in favour of the defendant No. 1 to the exclusion of plaintiff when no such documentary, evidence is forthcoming with respect to the partition as pleaded nor any evidence of long standing conduct in support of partition are forth coming. Admittedly, the vendor of the defendant No. 1 had not got the suit land recorded in his name pursuant to the so-called partition. It has also not been established that the recording of the suit land in favour of the defendant No. 1 in that mutation proceeding was with the consent of the-plaintiff. The lower appellate court has therefore found the evidence with regard to delivery of possession of the suit land by the vendor's of the defendant No. 1 from out of his exclusively possessed land to the defendant No. 1 as wholly insufficient to give a conclusive finding with regard to the possession. The lower appellate court has therefore found the evidence with regard to delivery of possession of the suit land by the vendor's of the defendant No. 1 from out of his exclusively possessed land to the defendant No. 1 as wholly insufficient to give a conclusive finding with regard to the possession. Thus, I do not find any such factual or legal infirmity in the ultimate result returned in the First Appeal by the lower appellate court. In view of the aforesaid discussion and reasons, the substantial questions of law receive the answer against the case of the defendant No. 1 which lead to hold the appeal to be devoid of merit. The parties are to bear their respective cost throughout.