Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 176 (ORI)

Dhoba Behera v. Hadu Behera

2018-02-12

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. Plaintiff is the appellant against a confirming judgment in a suit for partition. 2. Case of the plaintiff was that he and defendant no.1 are brothers. There was a partition of the ancestral properties between them. Subsequently they jointly acquired the suit land from one Sitaram Agrawalla in the year 1961 by means of a registered sale deed and took delivery of possession. As per mutual understanding and convenience, he was in possession of southern half of the suit land, whereas defendant no.1 was in possession of northern portion of the suit land. Since there was no complete partition by metes and bounds between them, the suit land was recorded jointly in their names in the major settlement. Defendant no.1 transferred the entire suit land in favour of defendant no.2. The plaintiff asked defendant no.2 to make partition of the suit land. But then, defendant no.2 claimed the entire suit land. He has half share over the suit land. 3. Defendant no.2 filed a written statement along with counter claim. Case of the defendant no.2 was that there was partition of the properties between defendant no.1 and the plaintiff. The suit land fell to the share of defendant no.1. The plaintiff did not raise any objection in the mutation case. The suit land was mutated in the name of the defendant no.1. Thereafter, defendant no.1 transferred the suit land in favour of defendant no.2 by means of a registered sale deed dated 13.9.1988 and delivered possession. He has acquired title and possession over the suit land. Defendant no.1 was set ex parte. 4. On the inter se pleadings of the parties, learned trial court has framed seven issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court dismissed the suit holding, inter alia, that the suit land had been acquired jointly by the plaintiff and defendant no.1. There is a complete partition in respect of ancestral properties as well as self-acquired properties. Defendant no.2 is entitled to a decree of permanent injunction. Unsuccessful plaintiff challenged the judgment and decree before the learned Civil Judge (Senior Division), Padampur in Title Appeal No.5 of 1993, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos. A, B and C of the appeal memo. Defendant no.2 is entitled to a decree of permanent injunction. Unsuccessful plaintiff challenged the judgment and decree before the learned Civil Judge (Senior Division), Padampur in Title Appeal No.5 of 1993, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos. A, B and C of the appeal memo. The same are “(A) Whether the learned courts below should have granted a decree for partition in respect of the admitted three areas of land ? B. Whether the learned courts below were correct in relying on the mutation recores (Ext.C) in the absence of any proof of exclusive acquition and in view of the error of record as pointed above ? C. Whether the learned courts below were correct in making out a third case of allotment of suit property (3 acres) to defendant-respondent no.1 when, this has neither been pleaded nor has been proved by any of the party?” 6. Heard Mr. Ramakanta Mohanty, learned Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for the appellant and Mr. S.K. Pattnaik, learned Senior Advocate along with Mr. P.K. Pattnaik, learned counsel for the respondent no.2. 7. Mr. Mohanty, learned Senior Advocate for the appellant submitted that the plaintiff and defendant no.1 are brothers. The ancestral properties of the parties had been partitioned. Thereafter, the plaintiff and defendant no.1 purchased the suit land in the year 1961. The same had been recorded jointly. Defendant no.2 prevailed upon the defendant no.1 and obtained the sale deed in respect of the suit schedule land. The plaintiff has half interest over the same. He further contended that learned trial court came to an erroneous conclusion that the suit land has been partitioned between the parties. The finding of the learned trial court that the plaintiff did not object to the exclusive recording of the suit land in favour of defendant no.1 is an error on record. In mutation case, the plaintiff filed objection. His alternative submission is that the excess alienation made by defendant no.1 in favour of defendant no.2 is void. 8. Mr. Pattnaik, learned Senior Advocate for the respondent no.2, submitted that the plaintiff has not adduced any evidence. He executed a power of attorney in favour of his son. The power of attorney holder was examined as a witness. The plaintiff failed to substantiate his claim. 8. Mr. Pattnaik, learned Senior Advocate for the respondent no.2, submitted that the plaintiff has not adduced any evidence. He executed a power of attorney in favour of his son. The power of attorney holder was examined as a witness. The plaintiff failed to substantiate his claim. Learned trial court came to hold that the plaintiff had suppressed material facts. Ac.5.62 dec. of land was jointly purchased by the plaintiff and defendant no.1. The suit has been filed in respect of Ac.3.00 of land. With regard to Ac.2.62 dec. of land there is neither any pleading nor any prayer. No evidence has been adduced by the plaintiff with regard to Ac.2.62 dec. of land jointly purchased by the brothers. 9. The plaintiff asserts that there was a partition of the joint family properties. Thereafter, the suit schedule property was purchased by him and his brother. But then, the plaintiff has instituted the suit in respect of Ac.3.00 out of Ac.5.62 dec. Learned trial court came to hold that the same raises suspicion regarding the claim of the plaintiff that there was no partition in respect of the joint acquired properties even though there was a complete partition between him and defendant no.1 in respect of the ancestral properties. In the absence of clear evidence of partial partition, inference of complete partition can be drawn. Thus it is presumed that there was a complete partition between the plaintiff and defendant no.1 in respect of the ancestral properties as well as self-acquired properties. Therefore, there is no further need of partition of suit land, which was duly settled in the name of defendant no.1 before its transfer in favour of defendant no.2. The finding of the learned trial court is based on surmises and conjectures. The court cannot presume that there was a complete partition between the plaintiff and the defendant no.1 in respect of the self-acquired properties. There was partition of the joint family properties between the plaintiff and defendant no.1. Thereafter Ac.5.62 dec. of land was jointly purchased by the plaintiff and defendant no.1. 10. The apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur and others, AIR 1996 SC 2823 held that mutation of a property in the revenue record does not create or extinguish title. It only enables the person in whose favour mutation is ordered to pay the land revenue. 10. The apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur and others, AIR 1996 SC 2823 held that mutation of a property in the revenue record does not create or extinguish title. It only enables the person in whose favour mutation is ordered to pay the land revenue. Defendant no.1 alienated Ac.3.00 to defendant no.2. Plaintiff has half share over Ac.5.62 dec. of land. The plaintiff is entitled to Ac.2.81 dec. of land. But then, defendant no.1 sold Ac.3.00 i.e. Ac.0.19 dec. excess of his share. The sale deed executed in respect of excess of share is void. Thus the plaintiff is entitled to a decree of Ac.0.19 dec. of land. The substantial questions of law are answered accordingly. 11. In the ultimate analysis, the appeal is allowed in part. The suit is decreed to the extent indicated above. There shall be no order as to costs.