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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.149 of 1988 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Ekadasia Dash (Dead) and others …. Appellants -versus- Baban Charan Dash (Dead) and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. S. Mantry, Advocate. For Respondents - Mr. S. K. Meherulla, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :13.08.2024 :: Date of Judgment :23.08.2024 A.C. Behera, J. This second appeal has been preferred against the confirming judgment. 2. The appellants of this second appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.37 of 1983 and appellants before the First Appellate Court in the First Appeal vide T.A. No.27/2 of 1985. The respondents of this second appeal were the defendants before the Trial Court in the suit vide T.S. No.37 of 1983 and respondents before the First Appellate Court in the First Appeal vide T.A. No.27/2 of 1985. S.A. No.149 of 1988 Page 1 of 18 3. The suit of the plaintiffs (appellants in this second appeal) before the Trial Court in T.S. No.37 of 1983 against the defendants (respondents in this second appeal) was a suit for partition simpliciter. 4.
Legal Reasoning
According to the pleadings of the plaintiffs, their common ancestor was Hari Dash. Hari Dash died leaving behind his three sons, namely, Chaitan, Bhagirathi and Gana. The branch of Chaitan has extinct, because Chaitan died issueless. Bhagirathi had two sons i.e. Bairagi and Jogendra. Bairagi died leaving behind his one son i.e. Babana (defendant No.1). Jogendra died issueless, for which, the branch of Jogendra has extinct. Gana died leaving behind his three sons i.e. Ekadasia (plaintiff No.1), Dwadasia and Bhagaban (plaintiff No.2). Dwadasia died leaving behind his two sons i.e Braja (defendant No.2) and Pratap (defendant No.3). 5. The family pedigree of the plaintiffs and defendants on the basis of the aforesaid pleadings of the plaintiffs is depicted hereunder for an instant reference:- S.A. No.149 of 1988 Page 2 of 18 Genealogy Hari Dash Chaitan Bhagirathi Gana Bairagi Jogendra Babana (D1) Ekadasia (P1) Late Dwadasia Bhagaban (P2) Brajamohan (D2) Pratap (D3) 6. According to the pleadings of the plaintiffs, the properties described in Schedule ‘B’ under Sabik Khata No.7 in Mouza Uparapada corresponds to Hal Khata Nos.91 & 92 are the suit properties for partition. As per the aforesaid genealogy, Hari Dash was their common ancestor. Hari Dash was the “Raj Baidya” of the king of Bonai. In lieu of rendering services as “Raj Baidya” to the king of Bonai, the king of Bonai had given some properties to him (Hari Dash) as Mafi Jagiri. Therefore, Hari Dash was the mafidar of Baidya Jagiri Mafiland of village Uparapada and Baidyapali appertaining to Sabik Khata Nos.7 & 1 respectively. After the death of Hari Dash and his eldest son Chaitan Dash, his other two sons i.e. Bhagirathi and Gana possessed all the S.A. No.149 of 1988 Page 3 of 18 properties left by their father & brother Hari Dash and Chaitan Dash. When Gana died leaving behind his three sons i.e. Ekadasia (plaintiff No.1) and Dwadasia (father of the defendant Nos.2 & 3) and Bhagaban (plaintiff No.2), the 2nd son of Gana i.e. Dwadasia (father of the defendant Nos.2 & 3) relinquished his share in the said properties in favour of his two brothers i.e. Ekadasia and Bhagaban (plaintiff Nos.1 & 2) and settled down in village Guchura under Ex-State of Bamara leaving the suit village. Thereafter, the plaintiffs i.e. Ekadasia and Bhagaban and defendant No.1 (Babana) enjoyed all the Baidayjagiri mafi suit properties as Baidya Jagirdars. So, the suit properties described in Schedule ‘B’ under Sabik Khata No.7 in Mouza/village Uparapada are the joint and undivided properties of the plaintiffs and defendant No.1, in which, the defendant Nos.2 & 3 have no interest. But, after abolition of intermediary system, some of the suit properties of Sabik Khata No.7 in Mouza Uparapada have been recorded erroneously in the name of the defendant No.1 under Hal Khata No.92 (Ext.1) ignoring the names of the plaintiffs and rest properties of Sabik Khata No.7 in Mouza Uparapada have been recorded in the name of the plaintiffs and all the defendants jointly inserting the names of the defendant Nos.2 & 3 under Hal Khata No.91 (Ext.2) erroneously. In fact, the suit properties under Hal Khata Nos.91 & 92 should have been recorded in the name of the plaintiffs and defendant No.1 jointly Page 4 of 18 S.A. No.149 of 1988 excluding the names of the defendant Nos.2 & 3. Because, the defendant Nos.2 & 3 have no joint interest and joint possession in the same, as their father Dwadasia Dash had left away the village relinquishing his all shares therein in favour of the plaintiffs. Till yet, the suit properties have not been divided between them (plaintiffs and defendant No.1) through metes and bounds partition, but the same are in joint between plaintiffs and defendant No.1, for which, the defendants have jointly 1/2 share in the suit properties covered under Hal Khata Nos.91 & 92 in Mouza Uparapada described in Schedule ‘B’. When the plaintiffs requested the defendant No.1 for metes and bounds partition of the suit properties, to which, the defendant No.1 refused. For which, they (plaintiffs) approached the civil Court by filing the suit vide T.S. No.37 of 1983 against the defendant No.1 arraying the defendant Nos.2 & 3 as parties therein (as their names have been erroneously reflected in Hal R.o.R. No.91) praying for partition of their 1/2 share from the suit properties covered under Hal Khata Nos.91 & 92 in Mouza Uparapada. 7. Having been noticed from the Trial Court in the suit vide T.S. No.37 of 1983, the defendants contested the same by filing their written statement separately. When, the defendant No.1 filed his written statement independently, the defendant Nos.2 & 3 filed their written statement jointly. S.A. No.149 of 1988 Page 5 of 18 As per the pleadings/written statement of the defendant No.1, the suit of the plaintiffs is not maintainable. The suit of the plaintiffs is barred by law of limitation. The plaintiffs have no cause of action for filing the suit. According to him (defendant No.1), on the death of their common ancestor Hari Dash, his eldest son Chaitan became the ‘Raj Baidya’ of the King of Bonai. When, Chaitanya died issueless and as the second son of Hari Dash i.e. Bhagirathi had predeceased Chaitan, for which, the eldest son of Bhagirathi i.e. Bairagi (father of the defendant No.1) was the ‘Raj Baidya’ of King of Bonai. Therefore, Bairagi was the last recorded Baidya Jagirdar of King of Bonai in respect of the properties covered under Sabik Khata No.1 of village Baidyapali and the properties covered under Sabik Khata No.7 of village Uparapada. For which, the properties under Sabik Khata Nos.1 & 7 of village Baidyapali and Uparapada were recorded in the name of Bairagi showing the status of his possession as Nijdakhal. The further case of the defendant No.1 was that, after the death of Chaitan, there was an amicable partition before 1930 between Bairagi Dash, Jogendra Dash and Gana Dash in respect of their all joint properties. In the said amicable partition Ac.6.12 decimals land appertaining to Sabik Khata No.1 in Mouza Baidyapali and Ac.4.61 decimals land appertaining to Sabik Khata No.7 in Mouza Uparapada had fallen in the share of Gana Dash and rest properties had fallen in the share Page 6 of 18 S.A. No.149 of 1988 of his father Bairagi Dash and his uncle Jogendra Dash and accordingly, Bairagi Dash and Jogendra Dash were possessing the properties allotted in their share through partition. When, Gana Dash expired, his widow Annapurna (mother of the plaintiffs) filed an application on dated 26.08.1930 before the Dewan of Bonai for mutation of Ac.6.12 decimals of Baidya Jagiri land under Sabik Khata No.1 in mouza Baidyapali allotted in the share of her husband Gana Dash in the name of her minor sons i.e. Ekadasia (plaintiff No.1), Dwadasia (father of plaintiff Nos.1 & 2) and Bhagaban (plaintiff No.2). In the said application for mutation, his father Bairagi Dash and his uncle Jogendra Dash did not object, but Bairagi Dash and Jogendra Dash undertook before the Dewan of Bonai to render their services as Baidya on behalf of the minor plaintiffs as well as Dwadasia till the attainment of their majority. As regard Schedule ‘B’ suit properties, case of the defendant No.1 was that, when after partition between Bairagi, Jogendra and Gana prior to 1930, his father Bairagi and his uncle Jogendra were living jointly being separated from Gana, they (Bairagi and Jogendra) acquired the Schedule ‘B’ suit properties. For which, Schedule ‘B’ suit properties were recorded separately in the names of Bairagi and Jogendra in the year 1935 & 1943. For which, the Hal R.o.R. of the same under Khata No.92 (Ext.1) has been published in the year 1975 in his name i.e. in the name of the defendant No.1 exclusively being the sole successor of Bairagi and Page 7 of 18 S.A. No.149 of 1988 Jogendra. So, neither the plaintiffs nor the defendant Nos.2 & 3 has any interest in the properties covered under Hal Khata No.92 described in Schedule ‘B’. The plaintiffs have not included their all properties including the properties under Sabik Khata No.1 into the common hotchpot for partition. For which, the suit of the plaintiffs is bad for partial partition. Therefore, the suit of the plaintiffs for partition is liable to be dismissed against him (defendant No.1) with costs. The defendant Nos.2 & 3 in their joint written statement supported the aforesaid pleadings of the defendant No.1. According to them (defendant Nos.1 & 2), after the death of Chaitan, there was amicable partition between Bairagi, Jogendra and Gana and in the said partition, Ac.6.12 decimals in Mouza Baidyapali and Ac.4.61 decimals of land in Mouza Uparapada had fallen in the share of Gana Dash, who is their grandfather. After the death of Gana, the said properties of Gana devolved upon the plaintiffs and their father Dwadasia Dash and after the death of their father Dwadasia Dash, his share in the suit properties devolved upon them (defendant Nos.2 & 3). Accordingly, they (defendant Nos.2 & 3) have their shares with the plaintiffs jointly in the ‘B’ Schedule suit properties. But, when they (defendant Nos.1 & 2) are demanding partition of their shares from the said suit properties, the plaintiffs are denying the same. They (plaintiffs) have falsely stated that, their father Page 8 of 18 S.A. No.149 of 1988 Dwadasia Dash has relinquished his share in the suit properties in their favour. 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 (seven) numbers of issues were framed by the Trial Court in the suit vide T.S. No.37 of 1983 and the said issues are:- ISSUES (i) (ii) (iii) (iv) (v) (vi) Is the suit maintainable? Have the plaintiffs any cause of action? Is the suit barred by law of limitation? Is the plea of earlier partition true? Have plaintiffs brought all the lands to common hotch pot? To what relief, if any, are the plaintiffs entitled? 9. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendants in the suit vide T.S. No.37 of 1983, the plaintiffs examined two witnesses i.e. plaintiff Nos.1 & 2 as P.Ws.1 & 2 respectively from their side and exhibited four documents vide Exts.1 to 4 on their behalf. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the contesting defendant No.1 examined six witnesses from his side including him as D.W.6 and relied upon series of documents on his behalf vide Exts.A to U. But, the defendant Nos.2 & 3 neither examined any witnesses nor proved any document on their behalf. S.A. No.149 of 1988 Page 9 of 18 10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court dismissed the suit of the plaintiffs on contest against the defendants with costs as per its judgment and decree dated 24.09.1985 and 28.09.1985 respectively assigning the reasons that, the suit properties had already been partitioned prior to 1930 through metes and bounds partition during the life time of Gana, Jogendra and Bairagi and in such partition, Ac.6.12 decimals land in Mouza Baidyapali and Ac.4.61 decimals land in Mouza Uparapada had fallen into the share of the father of the plaintiffs and the rest properties had fallen into the share of Bairagi and Jogendra. As the plaintiffs have not brought all the landed properties of their ancestors including the properties covered under Sabik Khata No.1 into the common hotchpot, for which, the suit of the plaintiffs for partition only in respect of the ‘B’ Schedule suit properties is not maintainable. Therefore, the suit of the plaintiffs for partition is not maintainable under law and they (plaintiffs) are not entitled for the relief of partition against the defendants only in respect of the ‘B’ Schedule suit properties. 11. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit for partition of the plaintiffs vide T.S. No.37 of 1983 passed by the Trial Court on dated 24.09.1985 and 28.09.1985 respectively, they (plaintiffs) challenged the same by preferring the First S.A. No.149 of 1988 Page 10 of 18 Appeal vide T.A. No.27/2 of 1985 being the appellants against the defendants arraying them (defendants) as respondents. 12. After hearing from both the sides, the First Appellate Court dismissed that First Appeal vide T.A. No.27/2 of 1985 of the plaintiffs on contest as per its judgment and decree dated 25.03.1988 and 05.04.1988 respectively accepting/concurring the findings and observations made by the Trial Court against the plaintiffs and in favour of the defendants. 13. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide T.A. No.27/2 of 1985 of the plaintiffs as per its judgment and decree dated 24.09.1985 and 28.09.1985 respectively, they (plaintiffs) challenged the same by preferring this second appeal being the appellants against the defendants arraying them (defendants) as respondents. 14. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether the concurrent findings of the Trial Court as well as First Appellate Court holding that, the suit of the plaintiffs (appellants in this second appeal) for partition is bad and defective on the ground of partial partition i.e. for non-inclusion of all the joint properties of the parties into the common hotchpot? (ii) Whether the concurrent findings of the Trial Court as well as First Appellate Court holding that, the defendant No.1 has established his title over the suit properties through adverse possession is sustainable under law? 15. I have already heard from the learned counsel for the appellants
Legal Reasoning
and the learned counsel for the respondents. S.A. No.149 of 1988 Page 11 of 18 16. So far as the first formulated substantial question of law i.e. whether the concurrent findings of the Trial Court as well as First Appellate Court holding that, the suit of the plaintiffs (appellants in this second appeal) for partition is bad and defective on the ground of partial partition i.e. for non-inclusion of all the joint properties of the parties into the common hotchpot is concerned; The maintainability or non-maintainability of a suit for partition on the ground of partial partition has already been clarified by the Hon’ble Courts and the Apex Court in the ratio of the following decisions:- 1963 Orissa (i) AIR 45—Harihar Rajguru Mohapatra and another Vrs. Nabakishore Rajaguru Mohapatra and others (DB)—(Para 6)—Hindu Law— partition—Some of the properties not included in partition—They can be partitioned later on. There is no absolute rule of law prohibiting a suit for partition of some of the properties only, assuming that, some properties have been left out, parties are not precluded from effecting partition of those properties at a subsequent stage. The appellants are also not precluded from raising valid objections, if any, in a subsequent litigation. (ii) AIR 1961 (SC) 1077—Kashinathsa Yamosa Kabadi, etc. V. Narsingsa Bhaskarsa Kabadi, etc.— (Three Judges Bench)—(Paras 14 & 26)—Hindu Law—Partition—It is always open to the members of a joint Hindu family to divide some properties of the family and to keep the remaining undivided—Such properties as are not partitioned can be divided later on— Such division is to be made consistently with the rules to Hindu Law. (iii) AIR 1983 (SC) 409—Apoorva Shantilal Shah Vrs. Commissioner Income-tax, Gujarat, of Ahmedabad—(Para 10)—Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. S.A. No.149 of 1988 Page 12 of 18 (iv) 2015 (II) CLR—1082—Sripati Karmi & others Vrs. Gharjugi Patrani (since dead) represented by her legal heirs, Smt. Unkuli Barkani and others—(Para 9)—Hindu Law—Partition—A partial partition in the Hindu Joint family is permissible under the law. 17. When, the propositions of law has already been clarified in the ratio of the aforesaid decisions that, there is no absolute rule of law prohibiting a suit for partition for some joint properties, as it is always open to the parties to divide some properties of the family and to keep the remaining undivided and the properties those are not partitioned, the same can be divided later on and such division is to be made consistently as per law and the defendants are not precluded under law from raising valid objection, if any, in the later suit for partition in respect of the left out properties. Therefore, in view of the above propositions of law, the findings and observations made by the Trial Court as well as First Appellate Court that, the suit of the plaintiffs was bad for partial partition cannot be sustainable under law. For which, in other words, it is held that, the suit of the plaintiffs for partition of the ‘B’ Schedule suit properties was maintainable under law. 18. So far as, the second formulated substantial question of law i.e. whether the concurrent findings of the Trial Court as well as First Appellate Court holding that, the defendant No.1 has established his title S.A. No.149 of 1988 Page 13 of 18 over the suit properties through adverse possession is sustainable under law is concerned; It is the case of the parties that, the suit properties in Mouza Uparapada relates to Sabik Khata No.7, which corresponds to Hal Khata Nos.91 & 92. Undisputedly, the R.o.R. of Hal Khata No.91 (Ext.2) has been published in the year 1975 jointly in the names of Babana Charan Dash (defendant No.1), Ekadasia Dash (plaintiff No.1), Dwadasia Dash (late father of defendant Nos.2 & 3) and Bhagaban Dash (plaintiff No.2). Babana Charan Dash (defendant No.1) is the sole successor of the branch of Bhagirathi Dash. The plaintiffs and defendant Nos.2 & 3 are the successors of the branch of Gana Dash. It is also the case of the parties that, in the previous settlements, the suit properties covered under suit Hal Khata No.91 (Ext.2) corresponding to Sabik Khata No.7 were jointly recorded in the name of their predecessors. The above joint recording of the properties covered under Hal Khata No.91 (Ext.2) described in Schedule ‘B’ of the plaint in favour of the plaintiffs and defendants through the unchallenged R.o.Rs continuously in the year 1935, 1943 & 1975 is going to show that, the suit properties under Hal Khata No.91 (Ext.2) are the joint and undivided properties of the parties, in which, the plaintiffs and defendant Nos.2 & 3 have their respective shares. S.A. No.149 of 1988 Page 14 of 18 As, Ekadasia Dash (plaintiff No.1), Dwadasia Dash (late father of the defendant Nos.2 & 3) and Bhagaban Dash (plaintiff No.2) were three brothers, for which, the plaintiff Nos.1 & 2 each entitled to get 1/6th share and the defendant Nos.2 & 3 each entitled to get 1/12th share in the suit properties covered under Hal Khata No.91 (Ext.2) described in Schedule ‘B’. The defendant No.1 being the sole successor of Bairagi and Jogendra, he (defendant No.1) alone is entitled to get 1/2 share in the properties covered under Hal Khata No.91 (Ext.2). 19. It is also the case of the parties that, the properties covered under Hal Khata No.92 (Ext.1) described in Schedule ‘B’ corresponds to Sabik Khata No.7. The previous R.o.R. of the said properties covered under Hal Khata No.92 including the sabik R.o.R. were published in the name of Bairagi and Jogendra jointly. After the death of Bairagi and Jogendra, the Hal R.o.R. of the same under Khata No.92 (Ext.1) has been published in the name of the defendant No.1 exclusively as the sole successor of Bairagi and Jogendra. The aforesaid unchallenged R.o.Rs. in favour of the defendant No.1 since the year 1935 is going to show that, the State had accepted to the predecessors of the defendant No.1 as the tenants in respect of the suit properties covered under Hal Khata No.92 (Ext.1), in which, the plaintiffs and defendant Nos.2 & 3 have no interest. S.A. No.149 of 1988 Page 15 of 18 Therefore, it is held that, the suit properties covered under Hal Khata No.92 (Ext.1) is the exclusive properties of defendant No.1, in respect of which, the prayer for partition of the plaintiffs is not maintainable under law. 20. When, it is held that, the defendant No.1 is the exclusive owner over the suit properties covered under Hal Khata No.92 (Ext.1) by way of inheritance and succession from his predecessors, then, the question of creation of any title of the defendant No.1 in the same through adverse possession does not arise. 21. As per the discussions and observations made above, when the findings and observations made by the Trial Court as well as First Appellate Court regarding the non-maintainability of the suit for partition of the plaintiffs in respect of the entire ‘B’ Schedule suit properties have become unsustainable under law, because the suit properties of the plaintiffs for partition in respect of the properties covered under Hal Khata No.91 (Ext.2) described in Schedule ‘B’ has become maintainable under law, then at this juncture, there is justification under law for making some interference with the judgments and decrees passed by the Trial Court and First Appellate Court through this second appeal filed by the appellants (plaintiffs). So, there is some merit in the second appeal filed by the appellants (plaintiffs). The same must succeed in part. S.A. No.149 of 1988 Page 16 of 18 22. In result, the second appeal filed by the appellants (plaintiffs) is allowed in part on contest against the respondents, but without cost. The judgments and decrees passed by the Trial Court and First Appellate Court are set aside in part. The suit be and the same vide T.S. No.37 of 1983 filed by the plaintiffs (appellants) is decreed in part on contest against the defendants, but without cost. Therefore, the suit of the plaintiffs vide T.S. No.37 of 1983 is decreed preliminarily for partition on contest against the defendants only in respect of the suit properties covered under Hal Khata No.91 (Ext.2) described in Schedule ‘B’, but dismissed on contest against the defendants in respect of the properties covered under Hal Khata No.92 (Ext.1) described in that Schedule ‘B’. Out of the properties covered under Hal Khata No.91 (Ext.2) described in Schedule ‘B’, the plaintiff Nos.1 & 2 entitled to get 1/6th share each, the defendant Nos.2 & 3 are entitled to get 1/12th share each and the defendant No.1 alone is entitled to get 1/2 share. The parties may amicably effect partition of the properties covered under Hal Khata No.91 (Ext.2) described in Schedule ‘B’ in proportion to their respective shares as indicated above within 3 months hence, failing which, any one of the parties may apply the Trial Court for making the decree final. S.A. No.149 of 1988 Page 17 of 18 In the final decree proceeding, Civil Court Commissioner to be appointed by the Court shall make division of the suit properties covered under Hal Khata No.91 described in Schedule ‘B’ amongst the parties by allotting their respective shares in their favour in accordance with the apportionments made above and while so partitioning, he shall respect to the possession and convenience of the parties with stipulation that, the alienations made by the parties from the properties covered under Hal Khata No.91 (Ext.2) shall be adjusted from the shares of the respective parties, who have so alienated. Orissa High Court, Cuttack. 23.08.2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2024 16:41:12 S.A. No.149 of 1988 Page 18 of 18