Research › Search › Judgment

Orissa High Court · body

2023 DIGILAW 192 (ORI)

Damodar Barik v. Malati Barik

2023-06-22

SASHIKANTA MISHRA

body2023
ORDER Sashikanta Mishra, J. This appeal has been preferred by the plaintiffs challenging the judgment and decree passed by learned District Judge, Bhadrak on 09.07.2014 and 15.07.2014 respectively in T.A. No.48 of 2001, whereby the judgment and decree passed by Civil Judge (Sr. Division), Bhadrak on 28.02.2001 and 17.03.2001 respectively in T.S. No. 135 of 1989-1 was reversed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. Before delving into the facts of the case it would be apposite to refer to the genealogy of the parties as the suit is one for partition of ancestral properties. The suit was originally filed by one Baishnab Barik as plaintiff No.1 and Damodar Barik as plaintiff No.2. Said Baishnab Barik having expired, was substituted by his surviving daughter Basanti Barik. 4. The appeal is admitted on the following substantial questions of law. '1) In the absence of any issue as to whether plaintiff No.2 is adopted son of plaintiff No.l, which fact has been denied by the defendant in the written statement, whether the learned lower Appellate Court is justified in recording their respective findings on the existence of relationship between plaintiff Nos. l and 2? 2) Whether the observation of the learned lower Appellate Court that the suit has been filed without bringing all the joint family property to the hotch potch and without impleading all the necessary parties is justified in the eye of law?' 5. The case of the plaintiffs, briefly stated, is that Damodar claims to be the adopted son of Baishnab. A suit was filed for partition of ancestral properties situated in village Bhagada to the tune of Ac.5.69 dec. under C.S. Khata Nos.138, 270, 250 and 196. Baishnab claimed to have acquired Ac.1.33 % dec. by virtue of a gift deed executed by Kanhei in his favour on 11.08.1968 and also inherited the balance property of Kanhei. Damodar purchased Ac. 0.93 dec. from the original defendant No.2, Koili (since dead), daughter of Siva through a registered sale deed executed on 30.12.1977. Ac.0.80 dec. was recorded exclusively in the name of Baisnab under MS Khata Nos. 233, 231 and 132 leaving balance of Ac.3.01 dec. to their share. Hence, the suit for partition in respect of Ac.4.09 dec. of land recorded jointly in the names of plaintiffs and defendants under MS Khata Nos. Ac.0.80 dec. was recorded exclusively in the name of Baisnab under MS Khata Nos. 233, 231 and 132 leaving balance of Ac.3.01 dec. to their share. Hence, the suit for partition in respect of Ac.4.09 dec. of land recorded jointly in the names of plaintiffs and defendants under MS Khata Nos. 54, 323, 334, 335 and 336. 6. The defendants' case is that the common ancestor, Bimbei had another brother, namely, Bidei and they had around Ac.15.50 dec. of land in village Bhagada and Samsama Daulatpur. The son of Bidei had separated from sons of Bimbei and subsequently Kanhei and Hati separated from Siva and Pahi. Accordingly, Hati and Pahi alienated some property jointly from Bimbei's half share in village Bhagada and Samsama Daulatpur before current settlement for which note of possession was recorded in the name of Hati and Kanhei in the C.S. ROR in respect of the balance property which fell to their share. Similarly, the names of Siva and Pahi have been recorded in the C.S. ROR with separate note of possession in respect of the properties falling into their shares. Hati and Kanhei had alienated properties recorded in their names after current settlement to different persons, who were not parties to the suit. Siva died while living with Pahi jointly and therefore, his daughter Koili had no share in respect of his properties, which Pahi succeeded to by survivorship. The plaintiffs wrongly managed to record the name of Koili in some of the RORs of village Bhagada and also got two sale deeds executed by her only to prove that she had a share in the suit property. The plaintiffs also managed to make separate Khata in the name of Baishnab successfully and taking advantage of the same filed the suit in respect of the balance property recorded jointly. It was specifically pleaded that Damodar was neither the natural nor adopted son of Baishnab and therefore, his claim is not maintainable. 7. On the rival pleadings the trial Court framed eight issues. After examining the oral and documentary evidence adduced by the parties, the trial Court decreed the suit in full primarily by holding that the plaintiffs are entitled to get Ac.3.01 dec. of land and defendant no.l is entitled to get Ac.1.18 dec. of land. The defendant no.l carried the matter in appeal to the Court of learned District Judge. After examining the oral and documentary evidence adduced by the parties, the trial Court decreed the suit in full primarily by holding that the plaintiffs are entitled to get Ac.3.01 dec. of land and defendant no.l is entitled to get Ac.1.18 dec. of land. The defendant no.l carried the matter in appeal to the Court of learned District Judge. After independently scanning the evidence on record in light of settled position of law, the first Appellate Court held that the plaintiff No. 1 having failed to step into the witness box and to produce any document of adoption, adverse inference is to be drawn against him. The First Appellate Court further held that the total extent of land belonging to the joint family is to the tune of Ac. 5.69 dec. but the plaintiffs claimed only Ac.3.01 dec. out of Ac.4.19 dec. thereby leaving out the rest property, which amounts to partial partition and not hence, maintainable in law. The first Appellate Court further found that the entire ancestral property situate in village Samsama Daulatpur had been left out in the suit. Finally, on the basis of the evidence on record the first Appellate Court found that Siva, the father of Koili (original defendant No.2) had died prior to 1956 and therefore, she could not have inherited any share in the property so as to alienate in favour of any person. Thus, the first Appellate Court disagreed with the findings of the trial Court and accordingly allowed the appeal by setting aside the judgment passed by the trial Court. 8. Assailing the judgment of the first Appellate Court, Mr. S.K. Ray, learned counsel appearing for the plaintiff-appellants had contended that no issue having been framed regarding adoption, there was no necessity for the plaintiff No.l to enter into the witness box and therefore, the first Appellate Court committed an error in drawing adverse inference against him. As regards the other points, the trial Court has answered them entirely basing on the oral and documentary evidence on record and there is no perversity or illegality whatsoever therein for the first Appellate Court to substitute his own findings therewith. 9. Per contra, Mr. S.C. Samantray, learned counsel appearing for the defendants has contended that firstly, no substantial question of law is involved and the second appeal has been preferred only on factual grounds. 9. Per contra, Mr. S.C. Samantray, learned counsel appearing for the defendants has contended that firstly, no substantial question of law is involved and the second appeal has been preferred only on factual grounds. Secondly, the defendants had specifically disputed the claim of plaintiff No.2 as being the son of plaintiff No.l and therefore, notwithstanding the fact that a specific issue was not framed to determine the question, it was brought out in the evidence that such claim was not correct. Mr. Samantaray further submits that Koili had no alienable right over the ancestral property to the extent of the share of her father, Siva since he had died prior to 1956. The trial Court was swayed away by the entries made in the RORs which do not confer any title by themselves. Since all the ancestral properties were not brought into the common hotchpot, the suit for partition was rightly held by first Appellate Court to be not maintainable. 10. From the rival contentions noted above and the grounds set out in the memorandum of appeal filed before this Court, it is evident that the status of original plaintiff No.2, Damodar is of seminal importance. In the plaint he claims to be the adopted son of Baishnab, a fact specifically disputed by the defendants. The trial Court should have framed an issue in this regard. Nevertheless, it is borne out from the evidence of Damodar himself that he is the natural son of one Govinda Lenka. Such being his admission, it was up to him to prove his claim of being adopted by Baishnab. As rightly held by the first Appellate Court, neither any deed of adoption was proved nor any oral evidence adduced in support of the claim of adoption. There is otherwise nothing on record to show as to how Damodar is linked/related to the joint family. Therefore, the suit for partition at his instance would not be maintainable. It was therefore, incumbent upon plaintiff no.l-Baishnab to step into the witness box to clarify the actual status of Damodar. Since he chose not to do so, the first Appellate Court rightly drew adverse inference against him. 11. It has come out in the evidence that the common ancestor namely, Lokei had two sons, namely Bidei and Bimbei. The plaintiffs and defendants belong to the branch of Bimbei. Since he chose not to do so, the first Appellate Court rightly drew adverse inference against him. 11. It has come out in the evidence that the common ancestor namely, Lokei had two sons, namely Bidei and Bimbei. The plaintiffs and defendants belong to the branch of Bimbei. There is also evidence on record to show that both Bidei and Bimbei jointly held land to the extent of 15.56 dec. in two villages namely, Bhagada and Samsama Daulatpur. There is no dispute that the members of the other branch were not impleaded as parties nor the properties situate in mouza- Samsama Daulatpur were included in hotchpot. 12. It is the settled position of law that a member of a joint family suing as coparcener for partition of family property is bound to bring the entire property into the hotchpot in order that there will be a complete and final partition of all the family properties. Article 333 (3) of Mullah's Hindu Law can be referred to in this regard. The suit must therefore fail on the ground of partial partition. Another important aspect that the trial Court overlooked but was rightly noticed by the first Appellate Court is the right of Koili, (original defendant No.2) to alienate the property falling into the share of her father, Siva. As per calculation made by the first Appellate Court, Siva had died prior to 1956. Therefore, his share of the property must be deemed to have devolved on his brother, Pahi with whom he was living jointly. Thus, Koili cannot be said to have acquired any alienable right to execute sale deed much less in favour of plaintiff No.1 or deffendnat No.1. This Court fully concurs with the finding of the first Appellate Court that mere entry in the settlement record of the name of the Koili cannot confer any alienable title on her. 13. Thus, from a conspectus of the analysis of contentions raised and the discussions made therein in the background of the oral and documentary evidence on record, this Court finds no reason to disturb the findings of the first Appellate Court. 14. In the result, the appeal fails and is therefore, dismissed but in the circumstances, without any cost.