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2017 DIGILAW 879 (ORI)

Abhaya Prasad Nayak v. Khetramani Nayak @ Swain

2017-08-11

D.DASH

body2017
JUDGMENT The unsuccessful defendant has filed this appeal challenging the judgment and decree passed by learned Civil Judge, (Sr. Division), Jagatsinghpur in C.S. No.189 of 2005. The respondent as the plaintiff had filed the suit for partition of the properties described in the schedule of the plaint seeking allotment of half share over the same in her favour and the rest half in favour of appellant; arraigned as defendant. 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 the parties are Hindus and governed by Mitakshara School of Hindu Law. One Bulei Nayak and Nidhi Nayak are two brothers. Late Gunduchi Nayak is the son of Bulei whereas DhrubaNayak is the son of Nidhi Nayak. The plaintiff claims to be the daughter of Dhruba Nayak and his wife Maguni Dei. It is submitted that the defendant, Abhaya Nayak is the son of Guinduchi. So, one branch is said to be represented by the defendant, whereas the other branch is represented by the plaintiff. It is further stated that the plaintiff succeeded to the interest of her late father Dhruba Nayak, whereas the defendant succeeded to the interest of his late father Gunduchi Nayak. The land described in the Schedule-A of the plaint stands recorded jointly in the name of Dhruba and Abhaya as per the record of right published by the Consolidation Authority. Asserting the rights of the parties they filed the petition before the Consolidation Authority which was numbered as Objection Case No.289/292 of 1994 for partition of the suit property. That stood dismissed since the parties failed to take up follow up action. The defendant is said to have sold land measuring Ac.1.00 decs. out of Ac.7.42 decs. from the land under consolidation plot No.766 and Chaka No.227 assigned with Khata No.18 at mouza Santarapur. One Ramesh Chandra Samantaray is said to have purchased a portion of land therefrom under the registered the sale-deed dated 04.12.2000. So, it is stated that said land is to be adjusted towards the share of the defendant. The plaintiff stated that since the defendant refused for partition of the property despite repeated demand to that effect, she has been compelled to file the suit. 4. So, it is stated that said land is to be adjusted towards the share of the defendant. The plaintiff stated that since the defendant refused for partition of the property despite repeated demand to that effect, she has been compelled to file the suit. 4. The defendant entering appearance contested the suit by filing written statement. He objected to the maintainability of the suit on the ground of non-joinder of necessary parties such as Usha Nayak, Shasi Nayak, Nisha Nayak and Basanti Nayak, the four daughters of Gunduchi Nayak who is stated to have died after the year 1956. It has been further averred that all the properties of the joint family have not been brought to the hotchpot. The genealogy as projected by the plaintiff is stoutly denied. It is stated that Bulei died leaving behind his four daughters, Usha, Shasi, Nisha and Basanti. Nidhi died leaving behind his son Dhruba. Dhruba is said to have died leaving his daughter Khetramani and Abhaya, who is none other than the defendant,. Thus, the defendant asserts himself to be the son of Dhruba and denied to be the son of Gunduchi as stated by the plaintiff. He has also denied to have filed any Objection Case before the Consolidation Authority. It is thus stated that the plaintiff is entitled to get 1/4th share from the property in case of partition. 5. The trial Court on the above rival pleadings, has framed following issues :- (i) Is the suit maintainable ? (ii) Has the plaintiff any cause of action to file the suit ? (iii) Is the suit bad for defective of parties ? (iv) Is the suit barred by law of limitation ? (v) Whether all the family properties of the parties brought to the hotch-pot ? (vi) Whether the genealogy given in the plaint is correct ? (vii) Whether the plaintiff is entitled to get the relief sought for ? (viii) Whether Abhaya Prasad Nayak is the son of Gunduchi Nayak ? (ix) To what other relief the plaintiff is entitled. 6. The trial Court very rightly has taken up issue No. (vii) and (viii) together for decision which relate to the sonship of Abhaya as has been stated by the plaintiff and denied and claimed otherwise by the defendant and consequently the allotment of the shares over the suit properties. 7. (ix) To what other relief the plaintiff is entitled. 6. The trial Court very rightly has taken up issue No. (vii) and (viii) together for decision which relate to the sonship of Abhaya as has been stated by the plaintiff and denied and claimed otherwise by the defendant and consequently the allotment of the shares over the suit properties. 7. Upon analysis of the evidence, both oral and documentary, the finding has been returned that the defendant is not the son of Dhruba Nayak and he is the son of Gunduchi Nauyak. So, both the plaintiff and defendant have been held to be having half share each over the property. 8. Coming to the challenge with regard to the maintainability of the suit for non-joinder of necessary parties, the trial Court has found the Consolidation record of right under Ext. 5 and 6 to be binding on the parties which find mention of the name of Abhaya son of Gunduchi, Dhruba son of Nidhi as the recorded tenants. It has further found that the D.W. 5 namely, Nisha Nayhak who is said to be having the interest over the properties in question has not advanced any claim over the property for self and anyone else over the same either in the said suit or even during her examination, though she was fully aware of the suit for partition all along. The objection on that score has thus been found to be holding no water. With the above findings, the suit for partition has been preliminarily decreed, allotting half share each to the plaintiff as also to the defendant. 9. Learned Counsel for the appellant submits that the finding of the trial Court on issue No. (vii) & (viii) are against the weight of evidence on record and as such those are not sustainable. It is submitted that on the basis of overwhelming evidence on record, especially considering those placed from the side of the defendant i.e. oral evidence of D.W. 5 and the documentary evidence Ext. A to D and E to G, a finding is inevitable that the defendant is the son of Dhruba and not the son of Gunduchi. With much pain, he has taken the Court through the deposition of D.W. 5 as also each of the above noted exhibits. he further contends that the suit ought to have been dismissed for non-joinder of necessary parties. With much pain, he has taken the Court through the deposition of D.W. 5 as also each of the above noted exhibits. he further contends that the suit ought to have been dismissed for non-joinder of necessary parties. Therefore while urging for dismissal of the suit, he in the alternative contends for allotment of 1/4th share each to the plaintiff and the defendant as against the allotment of half & half share made by the trial Court. 10. Learned Counsel for the respondent submits all in favour of the findings recorded by the trial Court. He contends that series of documentary evidence proved from the side of the plaintiff clearly go to show that the defendant-appellant is the son of Gunduchi and as such he has been so described with his status all through stretching over a long period everywhere barring the description given in few sale deeds as regards the sonship as claimed by him which are nothing but mere self serving statements. He further submits that the trial Court has rightly discarded the claim of the defendant to be the son of Dhruba and the appreciation of in arriving at said finding to be just and proper. It is also the submission that this Court even on reappreciation of evidence from any angle can’t arrive at a different conclusion. His submission is that when defendant is found to be the son of Gunduchi, first of all, his objection with regard to non-joinder of necessary parties such as the daughters of Gunduchi is impermissible and even if, it is so held, the same does not enure to his benefit in any way, so long as the finding that he is the son of Gunduchi stands. He also supports the conclusion of the trial Court that since Nisha examined as D.W. 5 from the side of the defendant (appellant) has not put forth any such claim either unto herself or for others and when in the consolidation operation, the plaintiff and defendant had advanced their claim lover the property only unto themselves, the suit is not liable to be dismissed for non-joinder of necessary parties. The plea according to him is an afterthought and is in the line of common saying that let the tree be cut but let not my enemy enjoy the fruits. 11. The plea according to him is an afterthought and is in the line of common saying that let the tree be cut but let not my enemy enjoy the fruits. 11. On the above rival submission, let me first of all proceed to judge the sustainability of the finding of the trial Court on issue no. (vii) & (viii).When the plaintiff claims herself to be the daughter of Dhruba son of Nidhi Nayak; the defendant while not denying that specifically state that, he is the son of Dhruba not the son of Gunduchi as stated by the plaintiff. Admittedly the property stands recorded in the name of Abhaya, the son of Gunduchi and Dhruba Charan Nayak, son of Nidhi Nayak. 12. Parties have led the evidence both oral and documentary in support of their rival stand on the above aspect. The plaintiff apart from examining seven witnesses has proved several documents so as to establish her case that the defendant is the son of Gunduchi. Ext. 3 series are the order-sheets of Revision Case No.289 of 1994 before the Director of Consolidation. The application giving rise to the said revision is Ext. 3/a. The application contains the signature of the defendant for partition of the properties which has been proved and marked as Ext.3/c. He has been described therein as the son of Gunduchi. Ext. 4 series are the order-sheets of Revision Case No.292 of 1994 and Ext. 4/a is the petition giving rise to said revision. It also contains the signature of defendant marked Ext.4/b wherein the defendant has been shown as the son of Gunduchi. Both the applications also contain the signatures of Dhruba Nayak which has been marked as Ext.3/d and 4/d. So, the defendant when claims himself to be the son of Dhruba, said Dhruba was the other party in those proceeding and it is not stated that as father and son they wanted to partition. In these proceedings, the defendant has described himself as son of Gunduchi that too in presence of Dhruba who is also a petitioner-signatory to that. All these have not at all been explained in any manner. Voter list prepared during the lifetime of Dhruba contains the entry of the name of the defendant and that reflects the defendant to be the son of Gunduchi. Properties have been sold jointly by Dhruba and the defendant which is seen from Ext. 5. All these have not at all been explained in any manner. Voter list prepared during the lifetime of Dhruba contains the entry of the name of the defendant and that reflects the defendant to be the son of Gunduchi. Properties have been sold jointly by Dhruba and the defendant which is seen from Ext. 5. The defendant has described himself as the son of Gunduchi. In Objection Case No.6035 of 1993 under Section 9 (3) of the OCH & PFL Act, 1972 which was registered on the basis of the application of the defendant finds the statement regarding the father’s name of the appellant to be Gunduchi and that has also been so stated by the Amin in his report after enquiry. In another sale-deed, Ext. 11, the defendant being the vendor with Bulei, the same position with regard to the sonship of the defendant clearly finds mention which has also been reflected in other documents. The defendant is a Graduate in the academic certificate granted by the authorities and more importantly, the certificate issued by the Board of Secondary Education, Orissa, the father’s name of the defendant is stated to be Gunduchi, correction of the same at any point of time has not been sought for. So the said certificate is standing as it is. On the other hand, the documentary evidence tendered by the defendant marked Ext. A to D and E to G are all the records prepared by the settlement authority and the sale-deed standing in his favour. All these appear to be self-serving documents. The important witness D.W. 5 who though claims herself to be the daughter of Gunduchi, her evidence is not enough to out-weigh the documentary evidence as discussed above more particularly when she has not advanced any claim over the property despite her so averred status. In view of the aforesaid, this Court unhesitently finds itself in agreement with the finding of the trial Court that the defendant is the son of Gunduchi and he is not the son of Dhruba. 13. Coming to the question of non-joinder of necessary party, the case projected by the defendant in the present appeal is really interesting and peculiar. In view of the aforesaid, this Court unhesitently finds itself in agreement with the finding of the trial Court that the defendant is the son of Gunduchi and he is not the son of Dhruba. 13. Coming to the question of non-joinder of necessary party, the case projected by the defendant in the present appeal is really interesting and peculiar. Though he has been given half share over the property, he claims to be having 1/4rth interest over the same exhibiting either his over anxiety or protect interest of other members of the family , the three daughters of Dhruba in the suit by simultaneously claiming himself to be the son of Dhruba which is detrimental to his interest and indirectly stating that the interest of the branch of Gunduchi would be divided amongst the plaintiff, defendant and two others or to cause deprivation to the plaintiff. But interestingly, the D.W. 5 who has been projected as the person having the interest over the property has not advanced any claim either in the suit knowing about its institution or at the time she deposed or even thereafter till date. This was also never the claim of the defendant before other authority prior to the suit as has been proved, when he has been pressing for the allotment of half interest for both all along. On the face of all these, it is crystal clear that the said plea of non-joinder of necessary party as has been taken is with a bid somehow to thwart the suit for partition filed by the plaintiff for the reasons best known to the defendant. 14. Moreover, when the defendant has already been found to be the son of Dhruba, his interest is getting totally protected by allotment of half share over the property in question with the rest half going to the plaintiff. If any, other has the claim over it, they would not be bound by this preliminary decree and can always claim their interest, if any, only from that plaintiff and the defendant has no cause to be worried or aggrieved by it. Thus, I do no find that the defendant is in any way not going to be affected. If any, other has the claim over it, they would not be bound by this preliminary decree and can always claim their interest, if any, only from that plaintiff and the defendant has no cause to be worried or aggrieved by it. Thus, I do no find that the defendant is in any way not going to be affected. The plea of the defendant that he is son of Dhruba not the son of Gunduchi having been negated, and when the defendant is in no way getting affected by the preliminary decree as has been passed, his locus standi to raise the said defence to thwart the suit does not come in the matter of the claim of share. In that view of the matter the objection on that score bites dust. Said finding recorded by the trial Court thus stands affirmed. 15. In the result, the appeal stands dismissed. However, in the facts and circumstances no order as to cost is passed. Appeal dismissed.