Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 813 (ORI)

Ramesh Chandra Sahoo v. Satrughna Sahoo

2018-11-19

D.DASH

body2018
JUDGMENT : D. Dash, J. 1. The appeal under section 100 of the Code of Civil Procedure has been filed in assailing the judgment and decree passed by the learned 2nd Additional District Judge, Khurda in R.F.A. No. 58 of 2015 confirming the judgment and decree passed by the learned Senior Civil Judge, Khurda in C.S. No. 18 of 2011. The appellant as the unsuccessful plaintiff had carried the first appeal under section 96 of the Code and that having been dismissed; he is now before this Court with this appeal. 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 suit is one for partition of the properties described in Schedule-A and B of the plaint for declaration that the record of right in respect of land under sabik khata No. 47, plot No. 58 admeasuring Ac. 0.060 decimals corresponding to hal khata No. 02, plot No. 74 of an area of Ac. 0.042 decimals of mouza Khalipatna, is erroneous and hot binding upon the plaintiff. 4. One Ananda Sahoo is the common ancestor of the parties. He had three sons namely, Rama, Laxman and Satrughana. Out of them, Satrughana is the defendant No. 1 and his wife-Annapurna is defendant No. 2. the two daughters are Sita and Tulasi. Said Tulasi is defendant No. 4 whereas defendant No. 5 to 7 are the three sons of Sita. Rama Sahoo and his wife Dhobani Sahoo, died issueless. It is stated that they had not adopted any one so as to directly succeed to their properties. So, it is said that upon death of Rama and his wife Dhoboni, their interest in the property devolved upon the plaintiff and other co-sharers. This plaintiff is the son of Laxman Sahoo and defendant No. 3 is his sister. It is stated that Ananda during his lifetime had sold some of his property to Annapurna by registered sale-deeds. The plaintiff's further case is that in the year 1988, a family partition was effected between three sons of Ananda and it was by way of execution of a deed of partition on 04.05.1988 which had been registered. As per that partition, land of mouza, Chuda as stated in the plaint was allotted to Rama Chandra. The plaintiff's further case is that in the year 1988, a family partition was effected between three sons of Ananda and it was by way of execution of a deed of partition on 04.05.1988 which had been registered. As per that partition, land of mouza, Chuda as stated in the plaint was allotted to Rama Chandra. It is said that the all the co-sharers enjoyed the lands falling to their respective shares. It is alleged that after the death of Rama, defendant No. 1 and 2 during the last settlement operation by influencing the authority have got the land of Rama recorded in the name of Dhoboni and Annapurna, the defendant No. 2 who are the purchasers of the land from Ananda Sahoo by registered safe-deed dated 26.08.1978 under sabik khata No. 47, plot No. 57 admeasuring Ac. 0.030 decimals of mouza Khalipatna corresponding to hal khata No.:2, plot No. 42 measuring Ac. 0.42 decimals and defendant No. 2 has got her name. recorded In respect of that Ac. 0.42 decimals by striking out the name of Dhobani. So, that record of right of the year 1993, is attacked as erroneous and not binding on the plaintiff. It is staled that except the land of mouza Chuda, other properties have been recorded jointly in the names of Dhobani and Annapurna-defendant No. 2 even though they were living and enjoying the property separately. It is stated that when the plaintiff and others being thus in joint possession of the properties, on 15.12.2000, the defendant No. 1 and 2 threatened the plaintiff not to come over the suit land, for which on 20.12.2000, the plaintiff requested the defendant No. 1 to partition the properties in metes and bounds and that having not been paid any heed to, the present suit has been filed. 5. Defendant No. 1 and 2 contested the suit. It is their case that there had already been a completed partition between co-sharer in the year 1988 and therefore, the question of inheriting the property of Rama Chandra and Dhobani by the plaintiff and other co-sharers does not arise. Dhobani having purchased property of her father-in-law, the same was her Stridhan and thus, it has to devolve upon her parents. Dhobani having purchased property of her father-in-law, the same was her Stridhan and thus, it has to devolve upon her parents. The defendants' further case is that after partition, the property lost its character as joint family property and in the year 1989, when Rama Chandra being the brother of defendant No. 1 expressed, his desire to remain with the defendant No. 1 in joint mess; they remained joint in mess and estate till Ramchandra's death. It is further stated that Rania during his lifetime, approached defendant No. 1 to take his son Suresh Sahoo in adoption and the defendant No. 1 having agreed upon the said proposal and consented to the same, Rama Chandra and his wife Dhobani adopted Suresh as their son. So, it is said that properties of Dhobani and Rama Chandra have been inherited by said Suresh as their adopted son. 6. The trial court on the rival pleadings framed six issues, out of which Issue No. 3 and 4 relate to the claim of defendant No. 1 and 2 as regards adoption of. Suresh, the son of Satrughana by Rama and Dhobani and the claim of devolution of interest of Rama and Dhobani upon plaintiff and other co-sharers. Issue No. 5 concerns with the relief of declaration of ROR of the year 1993 in respect of land under mouza Chuda. Upon analysis of evidence and on their appreciation; the trial court has answered the issue No. 3 by going to hold that the evidence is not sufficient to record a finding that Rama and his wife Dhobani had adopted Suresh at any point of time. The answer to this issue has attained finality in view of the fact that the defendant No. 1 and 2 have neither filed any appeal nor cross appeal/cross-objection on receiving notice from the lower appellate court questioning that finding. So far as issue No. 2 is concerned which is in relation to the claim of partition of the properties as laid by the plaintiff, the trial court has found that once the partition of the suit properties has taken place and the concept of joint ownership and possession being no more attractable when the parties to the suit are also in enjoyment of land belonging to their respective shares, there arises no question of passing a preliminary decree for partition in respect of the suit properties afresh. The trial court has further found on examination of evidence as well as on verification of the description of the suit property given in the plaint that the properties which have been sold away to Dhobani do not find place in the schedule of the plaint. Whereas some other properties are included under the two schedules i.e. schedule-A and B without any explanation as. to the said inclusion. When it is stated that the entire ancestral properties of the parties have already been partitioned by metes and bounds, therefore, in the absence of any clarification as above, the trial court has declined to grant the relief of partition as prayed for by the plaintiff. Then going to answer the issue No. 4 as to whether on the death of Dhobani, property has devolved upon plaintiff and-other co-sharers, the finding has been in favour of the plaintiff; that the property of the Dhobani has devolved upon me plaintiff and the defendants other than defendant No. 2. The trial court has also further recorded a finding that in view of the bar contained in section 43 of the Orissa Survey Settlement Act, the prayer in respect of correction of the record of right concerning the landed properties admeasuring 42 decimals Is barred. 7. The lower appellate court has affirmed all such findings. Careful reading of the judgment of the first appellate court reveals that answer to each issue recorded by the trial court has been put to test again. Churning the evidence on record, the lower appellate court has arrived at its independent conclusions in finally according its agreement with all those as rendered by the trial court which has resulted with the dismissal of the first appeal. 8. Learned counsel for the appellant submits that when the courts below have arrived at a specific finding on issue No. 4 that the properties of Dhobani and Rama Chandra have devolved upon the plaintiff and defendants except defendant No. 2, there was no reason to refuse to grant the relief of partition as claimed by the plaintiff in respect of said properties. He further submits that when the courts below have recorded the finding on that issue No. 4 holding the right of the plaintiff and other co-sharers except defendant No. 2 over the same, a decree for declaration In respecting of ROR pertaining to sabik plot No. 47, plot No. 56 corresponding to hal khata No. 2, plot No. 72 of mouza Khalipatna ought to have been the legal consequence and that having not been done the judgments and decrees are liable to be set aside. According to him, the courts below having not considered the matter from the above angles and having fallen in error, those stand to be formulated as the substantial questions of law in the case so as to be answered. 9. It has been stated by the plaintiff in his deposition that Dhobani was in enjoyment of property falling in the share of her husband; Dhobani and Annapurna (defendant No. 2) reunited for which the property stood jointly recorded in their names which was not objected to by anyone either before the settlement authority or in any other forum as provided in law. The defendant No. 1 and 2 have pleaded that in the year 1989, Rama Chandra expressed his desire to jointly stay with defendant No. 1 and accordingly they remained joint both in mess and estate which continued all through during the lifetime of Rama Chandra. Now the defendant No. 1 examined as D.W. 1, in his evidence has stated that after the death of Rama Chandra, his wife Dhobani reunited with his family and remained joint till her death. Son of defendant No. 1 i.e. Suresh, examined as D.W. 2 has stated that, after death of Rama Chandra, Dhobani whom he claims to be his adoptive mother, reunited with the family of his natural father. Defendant No. 1 states that Rama Chandra died on 29.07.1988. From these, the lower appellate court has taken a cue that it is not possible to say that Rama Chandra had expressed desire to remain jointly with the D.W. 1 in the year 1989 which cuts the root of the case of the defendant Nos. 1 and 2 regarding reunion of Rama Chandra with them. The case of the defendants is that there was no reunion of Rama Chandra and Dhobani with the members of the family, the reopening of partition is not permissible. 1 and 2 regarding reunion of Rama Chandra with them. The case of the defendants is that there was no reunion of Rama Chandra and Dhobani with the members of the family, the reopening of partition is not permissible. They have specifically pleaded that the Rama Chandra and Dhobani were jointly residing with D.W. 2, the wife of defendant No. 1. This plea of the defendant now. 1 and 2 thus, has been found to be not acceptable on analysis of evidence. The lower appellate court has found no such clear, clinching and acceptable evidence to hold that the family of Rama Chandra had ever reunited with the family of defendant No. 1. Testing the evidence in the backdrop of rival case, no such fault is found with this conclusion. The lower appellate court has also agreed that on the death of Dhobani, the property has devolved upon the plaintiff and defendants except defendant No. 2 which is no more under challenge. 10. The answer to Issue No. 2 now stands for consideration; if has been discussed in paragraph-14 of the judgment of the lower appellate court. In order to properly appreciate and address the submission of the learned counsel for the appellant, the following part of the judgment of the lower appellate court bears importance and thus is placed herein below: "Further, if the plaintiff is only interested for partition of the properties of late Rama Chandra Sahoo and his wife Dhobani Sahoo," who died issue-less, he must have brought pleading by clear and specific manner in this suit by mentioning the specific share of said Rama Chandra and Dhobani. further he must have to exclude all the properties, which was earlier partitioned by metes and bounds In between the parties including the properties purchased by defendant No. 2 and recorded in her name." In the next paragraph reference has been made to the principle of law as enunciated by the Hon'ble Apex Court that unless the fact of re-union after registered partition is proved, the successors of deceased co-sharers cannot go to constitute coparcenary either by agreement or by remaining together subsequently and by the enjoyment of the properties together. Here in the suit for partition, all the properties which were the subject matter of that earlier partition in terms of the deed have not been sought to be partitioned. The plaintiff as P.W. 1 admits that. Here in the suit for partition, all the properties which were the subject matter of that earlier partition in terms of the deed have not been sought to be partitioned. The plaintiff as P.W. 1 admits that. It is seen from the registered deed of partition dated 04.05.1988 i.e. Ext. C; that the ancestral properties have been partitioned. He also has stated that the three brothers have never united thereafter. The reunion as pleaded by defendant No. 1 and 2 has been turned down to have not been proved. So, the lower appellate court has negated the case of reunion of the parties. A very important aspect has been touched by the lower appellate court that had the properties of Rama Chandra and Dhobani been specifically described in the suit by providing the schedules in the plaint, there could have been no difficulty in at least passing a preliminary decree for partition in respect of said properties amongst the plaintiff and defendants other than the defendant No. 2. But as the plaintiff has included all the family properties and has prayed for a decree for partition in respect of the properties of Rama Chandra and Dhobani amongst their legal heirs, no effective decree can be passed. The subject matter of suit as described in the plaint has not been found to be specific and clear and rather, it has been found to be ambiguous so as to stand on the way of the court to pass an effective decree even in respect of the properties of Rama Chandra and Dhobani, This Court wholly agrees with such conclusion that the plaintiff having filed the suit by confusing the facts and having not approached with clean hands for the reasons best known to him, he is not entitled to any relief as sought for. At this juncture, let me take note of the fact as to what the lower appellate court has observed in the judgment which is quite significant. It has been observed that the plaintiff is at liberty to take proper legal steps by identifying specific landed properties of the deceased Rama Chandra and Dhobani to go ahead for partition of those properties which have been; inherited by the plaintiff and the defendants except defendant No. 2. On the face of the deed of partition Ext. It has been observed that the plaintiff is at liberty to take proper legal steps by identifying specific landed properties of the deceased Rama Chandra and Dhobani to go ahead for partition of those properties which have been; inherited by the plaintiff and the defendants except defendant No. 2. On the face of the deed of partition Ext. C and in the absence of any such acceptable evidence being let in by the plaintiff to establish a case of reunion, as also keeping in view the subsequent conduct of the parties in accepting the said partition in every respect, a concluded partition stands presumed. The respective claim of reunion as differently pleaded in the rival pleadings, upon just and proper appreciation of evidence, both oral and documentary has been rightly turned down. So, all the properties of the family are not more liable for partition again which has been rightly so held. The only course left open to the plaintiff is to seek partition of the landed properties of Rama Chandra and Dhobani by clearly stating all the required facts attached thereto giving specification as the law requires to enable the court to pass an effective decree. In that light, liberty having been granted, I find nothing wrong with the result declared by the lower appellate court declining to grant the relief to the plaintiff as prayed for in the instant suit as framed. For the aforesaid discussion and reasons, the submission of the learned counsel for the appellant that there stands substantial questions of law to be formulated for their answer meriting the admission of the appeal fails. The appeal thus does not merit admission. 11. (sic.) In the result, the appeal stands dismissed. No order as to cost.