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2018 DIGILAW 612 (ORI)

KAILASH CHANDRA JENA v. RATNAKAR NAYAK

2018-06-25

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J - Defendants 1 to 4 are the appellants against a confirming judgment. 2. Plaintiffs-Respondents 1 to 6 instituted the suit for permanent injunction. The case of the plaintiffs is that the suit land is a tank. The same is the ancestral undivided homestead tank of the plaintiffs and defendant no.5. There was no partition of the joint family properties by metes and bounds. But then, the defendant no.5 alienated an area of 2? decs. to defendants 1 to 4 by means of two registered sale deeds on 16.4.1982, vide Exts.A & B. Defendants 1 to 4 are the strangers to the family. With this factual scenario, they instituted the suit seeking the relief mentioned supra. 3. Defendants 1 to 4 entered contest and filed written statement stating inter alia that the plaintiffs and defendant no.5 do not belong to the joint family. The suit land is not the part and parcel of homestead of the plaintiffs. They had purchased the suit land from defendant no.5 by means of two registered sale deeds. They are in possession over the same. They are not strangers to the family. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence. Learned trial court decreed the suit holding that the suit tank is the homestead land of the plaintiffs. There was no partition between the co-sharer by metes and bounds. The defendants 1 to 4 are strangers to the family. Felt aggrieved, the defendants filed Title Appeal No.12/241 of 1987 before the learned Additional District Judge, Bhadrak, which was eventually dismissed. 5. This appeal was admitted on the following substantial questions of law enumerated in ground nos.A and B of the appeal memo. The same are:- "A) Whether the courts below are justified to decree the plaintiffs' suit for permanent injunction specially when defendant no.1 to 4 as bona fide purchasers for value under the registered sale deeds (Exts.A and B) from defendant no.5 who is only a co-owner with the plaintiffs and is competent to transfer his interest in the suit property ? B) Whether both the courts below are correct and justified in decreeing the plaintiffs' suit for repurchase of the suit land under Section 4 of the Partition Act in absence of any pleading or evidence to establish the fact that defendant no.5 (the transferor) was a member of the plaintiffs' family even assuming that their family was undivided ?" 6. Mr. Mr.Manoj Kumar Agrawal, learned Advocate on behalf of Mr.D.P.Dhal, learned Advocate for the appellants submits that Sec.4 of the Partition Act shall come into play in the event the strangertransferee files a suit for partition. The suit for permanent injunction simplicitor is not maintainable. He places reliance on the decisions of the apex Court in the case of Ghantesher Ghosh v. Madan Mohan Ghosh and others, (1996) 11 SCC 446 and this Court in the case of Prafulla Chandra Panda and others v. Kanchanabala Sarangi and others, 2016 2 ILR(Cut) 880 7. Per contra, Mr.Alok Kumar Mohanty, learned Advocate on behalf of Mr.P.Kar, learned Senior Advocate for the respondents submits that defendants 1 to 4 are the strangers to the family. A co-share alienated a portion of the share. Thus, the suit for permanent injunction is not maintainable. He places reliance on a decision of this Court in the case of Krushna Chandra Panigrahi v. Bhagirathi Sahu and another (SA No.135 of 1989, disposed of on 1.11.2017). 8. A co-share alienated a portion of the share. Thus, the suit for permanent injunction is not maintainable. He places reliance on a decision of this Court in the case of Krushna Chandra Panigrahi v. Bhagirathi Sahu and another (SA No.135 of 1989, disposed of on 1.11.2017). 8. In Ghantesher Ghosh, 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 coowner 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 preemption 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 share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house". 9. 9. In Khirode Chandra Ghoshal v. Saroda Prosad Mitra, (1910) 7 IndCas 436, the Calcutta High Court held that the expression 'house' "embraces, not merely the structure or building, but includes also adjacent buildings, cartilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier." The said decision has been quoted with approval by this Court in the cases of Bhabani Bewa and others vs. Akshoy Kumar Das and another, (1955) 21 CutLT 371, Jati Bewa and others v. Shyam Sundar Sahu and others, 1970 1 CWR 283 and Gangadhar Malik v. Kahnu Sethi, 1972 38 CutLT 1244. 10. On an anatomy of pleadings and evidence on record, learned courts below held that there was no partition between the parties. True it is, a co-sharer cannot maintain a suit for partition and seek relief under Sec.4 of the Partition Act in view of the decision of the apex Court in the case of Ghantesher Ghosh . Till and until the stranger transferee sues for partition and separate possession of the undivided share transferred to him by the concerned co-sharer, the other co-sharer can maintain his possession. A co-sharer can maintain a suit for permanent injunction. The co-sharer is not remediless. In the case of Krushna Chandra Panigrahi, the plaintiffs' suit for permanent injunction was decreed. 11. Admittedly, the suit property belongs to the plaintiffs and defendant no.5. Both the courts below concurrently held that it is a homestead land. It is a compact area. The outsiders have no access to the same. There was no partition by metes and bounds. The defendant no.5 had alienated a part of the suit land in favour of defendants 1 to 4. The defendants 1 to 4 are strangers to the family. There is no perversity or illegality in the finding of the courts below. The substantial questions of law are answered accordingly. 12. In Prafulla Chandra Panda, this Court held that a co-sharer is entitled to exercise his right of re-purchase under Section 4 of the Partition Act, only when the stranger-transferee has sued for partition of his/her purchased property. The said decision is distinguishable on facts. 13. A priori, the appeal fails and is dismissed. There shall be no order as to costs. Final Result : Dismissed