The High Court
Case Details
A.F.R IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.55 of 2011 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Ramesh Biswas …. Appellant Khyanta Biswas …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Pragyan Paramita Mohanty, Advocate Appearing on behalf of Mr. G.N. Mishra, Advocate. For Respondent - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :29.02.2024:: Date of Judgment :08.04.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the confirming Judgment. 2. The appellant of this 2nd Appeal was the defendant before the trial court in the suit vide C.S No.4 of 2008 and he was the appellant in the 1st Appeal vide R.F.A. No.10 of 2009. The respondent of this 2nd Appeal was the plaintiff before the trial court in the suit vide C.S. No.4 of 2008 and she was the respondent RSA No.55 of 2011 Page 1 of 14 {{ 2 }} before the 1st Appellate Court in the 1st Appeal vide R.F.A. No.10 of 2009.
Legal Reasoning
The suit of the plaintiff (the respondent of this 2nd Appeal) against the defendant before the trial court in the suit vide C.S. No.4 of 2008 was a suit for partition. 3. As per the pleadings of the plaintiff in her plaint in the suit for partition vide C.S. No.4 of 2008 before the trial court, the suit properties were originally belonged to the mother of the plaintiff and defendant i.e. Subhadra Biswas. The R.o.R of the suit properties was published in the name of Subhadra Biswas. Subhadra Biswas died leaving behind the defendant and the plaintiff as her son and daughter. After the death of Subhadra Biswas in the year, 1984, the suit properties devolved equally upon the defendant and the plaintiff. So, the plaintiff and the defendant inherited the suit properties left by their mother Subhadra Biswas. The plaintiff and the defendant were residing in one family and they both were enjoying the suit properties. The plaintiff had married, but, her husband deserted her, for which, since the year 1985, the plaintiff resided in her parents’ house. The defendant had given approximately 5 Bighas of land i.e. about 2 Acres of agricultural properties out of the suit properties to the plaintiff for her possession without any metes and bounds partition between them. When misunderstanding arose between the plaintiff and RSA No.55 of 2011 Page 2 of 14 {{ 3 }} defendant concerning the possession of the suit properties, then, the plaintiff resided separately being separated from the defendant and after her separation, the defendant forcibly possessed the entire suit properties on dated 20.06.2007, for which, the plaintiff requested defendant for metes and bounds partition of the suit properties. But the defendant did not pay any heed to the same. For which, the plaintiff approached the Civil Court by filing the suit vide C.S. No.4 of 2008 against the defendant praying for partition of her half share from the suit properties. 4. Having been noticed from the Trial Court in the suit of the plaintiff vide C.S. No.4 of 2008, the defendant contested that suit of the plaintiff by filing his written statement taking his stands inter alia therein that: The family pedigree of the plaintiff and defendant stated by the plaintiff in her plaint is not correct. According to the defendant, his father was Motilal Biswas and his mother was Subhadra Biswas. The Said Motilal Biswas and Subhadra Biswas died leaving behind the defendant as son and 4 daughters i.e. the plaintiff along with Gurudasi, Haridasi and Pramila. But, the plaintiff has approached the Civil Court by filing the suit vide C.S. No.4 of 2008 by suppressing the names of her 3 sisters i.e. Gurudasi, Haridasi and Pramila. For which, the genealogy given by the plaintiff in her plaint is not correct. RSA No.55 of 2011 Page 3 of 14 {{ 4 }} As, this is a suit for partition, for which, Gurudasi, Haridasi and Pramila are necessary parties to the suit filed by the plaintiff. Therefore, the suit of the plaintiff is bad for non-joinder of necessary parties. According to the defendant, their father Motilal Biswas expired in the year-1973 and their mother Subhadra Biswas expired in the year 1984. After the death of Motilal Biswas and Subhadra Biswas, the defendant being their only son has been possessing and enjoying the suit properties exclusively. The plaintiff is not a citizen of India. For which, she has no locus standi to file the suit. As such, there is no cause of action for the plaintiff to file the suit. Therefore, the suit of the plaintiff is liable to be dismissed. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 numbers of issues were framed by the Trial Court in the suit vide C.S. No.4 of 2008 and the said issues are: ISSUES Whether the suit is maintainable? Whether the suit is barred by law of limitation? Whether the suit is bad for non-joinder of necessary parties? Whether there is any cause of action for the plaintiff to file the suit? Whether the suit land is partiable and if so partiable then extent of 1. 2. 3. 4. 5. share of land to the plaintiff? 6. To what other relief the plaintiff is entitled to? 6. In order to substantiate the aforesaid relief i.e. partition prayed for by the plaintiff, she (plaintiff) examined 2 numbers of witnesses from her RSA No.55 of 2011 Page 4 of 14 {{ 5 }} side including herself as P.W.1 and relied upon series of documents vide Exts.1 to 7. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant also examined two witnesses on his behalf including him as D.W.1 and exhibited 2 documents vide Ext.A and B from his side. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiff and against the defendant, passed the Judgment and Decree of the suit vide C.S. No.4 of 2008 of the plaintiff on dated 24.08.2009 and 05.09.2009 respectively and decreed that suit vide C.S. No.4 of 2008 of the plaintiff preliminarily on contest for partition of the suit properties equally between the plaintiff and defendant entitling the plaintiff and defendant to get half share each from the suit properties assigning the reasons that, the suit properties were the properties of the mother of the plaintiff and defendant i.e. Subhadra Biswas and the said Subhadra Biswas died leaving behind the plaintiff and defendant as her two children and after the death of Subhadra Biswas, the suit properties devolved upon the plaintiff and defendant equally, for which, the plaintiff and defendant are entitled for half share RSA No.55 of 2011 Page 5 of 14 {{ 6 }} each from the suit properties and there is no material in the record on behalf of the defendant to establish that, Subhadra Biswas expired leaving behind the plaintiff, defendant along with her 3 daughters namely, Gurudasi, Haridasi and Pramila. For which, the plaintiff and defendant are entitled for half share each from the suit properties. 8. On being dissatisfied with the aforesaid Judgment and Decree of the suit of the plaintiff on dated 24.08.2009 and 05.09.2009 respectively passed by the trial court in the suit vide C.S. No.4 of 2008, he (defendant) challenged the same by preferring the 1st Appeal being the appellant vide R.F.A No.10 of 2009 against the plaintiff by arraying her (plaintiff) as respondent. After hearing from both the sides, the 1st Appellate Court dismissed that 1st Appeal vide R.F.A No.10 of 2009 of the defendant as per its Judgment and Decree dated 05.01.2011 and 19.01.2011 respectively confirming the Judgment and Decree passed by the Trial Court in the suit vide C.S. No.4 of 2008. 9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide R.F.A. No.10 of 2009 passed by the 1st Appellate Court on dated 05.01.2011 and 19.01.2011 respectively, he (defendant) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiff by arraying her (plaintiff) as respondent. RSA No.55 of 2011 Page 6 of 14 {{ 7 }} 10. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. by cost deposit Whether the approach of the learned trial court, as confirmed by the learned lower appellate court in issuing summons to witness Pramila in her Meerut address through Registered Post on 10.08.2008 after this of defendant/appellant, fixing the case to the 18.08.2008, without waiting minimum period of one month for service return and then abruptly calling upon the her procure defendant/appellant attendance on 20.08.2008 and then closing the case on 21.08.2008, was proper and justified and if such a course has denied an opportunity of fair contest to the defendant appellant? for to 11. I have already heard from the learned counsel for the appellant (defendant) only, as none appeared from the side of the respondent (plaintiff) for hearing of this 2nd Appeal. 12. It is the admitted case of the parties that, the suit properties were settled in the name of the mother of the plaintiff and defendant i.e. Subhadra Biswas and the R.o.R of the suit properties vide Ext.1 was published in the name of Subhadra Biswas exclusively. It is the settled propositions of law that, mere delineation of genealogy in the plaint by the plaintiff is not the automatic proof of the genealogy. But, there should be evidence in support of the same in order to prove the genealogy delineated by the plaintiff or plaintiffs. RSA No.55 of 2011 Page 7 of 14 {{ 8 }} In the plaint of the plaintiff, it has been specifically pleaded that, Subhadra Biswas died leaving behind the plaintiff and the defendant as her two children i.e. as her daughter and son respectively, to which, the defendant has denied in Para No.2 of his written statement by projecting a genealogy indicating that Subhadra Biswas died leaving behind the plaintiff, defendant along with her other 3 daughters i.e. Gurudasi, Haridasi and Pramila. The law for proving the genealogy has already been clarified by the Hon’ble Courts and the Apex Court in the ratio of the following decisions: I. 2009 (III) Civ.L.T 441: R. Pannereselvam Vs. A. Subramanian & Another (Para Nos.23 & 24) & AIR (1983) SC 684: State of Bihar Vs. Radha Krishna Singh & Others. Evidence Act—1872— Section 101—Genealogy—Burden of proof—Mere delineation of genealogy is not sufficient, but there should be evidence in support of same. It appears from the Judgments of the trial court as well as 1st Appellate Court that, the plaintiff (P.W.1) has adduced evidence in support of her pleadings by stating that, her mother Subhadra Biswas died leaving behind herself and the defendant as her daughter and son. Exhibit 5 i.e. the certified copy of the report of R.I. in Misc. Case No.40 of 2008, which is corroborating to the aforesaid versions of the plaintiff (P.W.1). Because, in that Ext.5, it has been specifically indicated RSA No.55 of 2011 Page 8 of 14 {{ 9 }} that, Subhadra Biswas has expired leaving behind her two children i.e. plaintiff and defendant as her daughter and son respectively. Accordingly, the pleadings of the plaintiff about the family pedigree of the plaintiff and defendant has been corroborated by the document vide Ext.5. Whereas, the delineation of genealogy in Para No.2 of the written statement of the defendant about his 3 other sisters has not been duly proved by the defendant, because, the defendant (D.W.1) has not been able to file and prove any document to show that, Subhadra Biswas had other 3 daughters namely, Gurudasi, Haridasi and Pramila along with plaintiff. It also appears from the records as well as from the Judgments of the trial court and 1st Appellate Court that, during trial of the suit vide C.S. No.4 of 2008, on the prayer of the defendant, summons were issued to the aforesaid 3 so-called alleged daughters of Subhadra Biswal i.e. Gurudasi, Haridasi and Pramila by the trial court as per Order dated 04.08.2009, to know, whether the said Gurudasi, Haridasi and Pramila are the daughters of Subhadra Biswas as well as the sisters of the plaintiff and defendant. But, none among them attended the trial court on the date fixed by the trial court, despite issuance of notices on them. Thereafter, as per order dated 18.11.2009 of the trial court in the suit vide C.S. No.4 of RSA No.55 of 2011 Page 9 of 14 {{ 10 }} 2008, the defendant was directed by the trial court to produce the so- called alleged daughters of Subhadra Biswas i.e. Gurudasi, Haridasi and Pramila before the trial court to be examined as witnesses and the date of their examination was fixed to 20.08.2009. But, on that day, the aforesaid 3 so-called alleged daughters of Subhadra Biswas i.e. Gurudasi, Haridasi and Pramila neither appeared nor any step was taken on behalf of the defendant or his advocate to adjourn the trial of the case for their examination later on. For which, the trial court closed the evidence from the side of the defendant on that day i.e. on 20.08.2009 and fixed the date of that suit for argument. As such, when the defendant could not able to establish the delineation of the genealogy given by him in Para No.2 of his written statement about the existence of his 3 other sisters namely, Gurudasi, Haridasi and Pramila by bringing materials into the record and when the pleadings made by the plaintiff in her plaint about the family pedigree of the plaintiff and defendant has been supported/corroborated by the documentary evidence vide Ext.5 and when during the trial of the suit vide C.S. No.4 of 2008, despite providing sufficient opportunities to the defendant, he could not examine any of his so-called left out sisters before the trial court as a witness in the suit vide C.S. No.4 of 2008, then, at this juncture, by applying the principles of law enunciated by the Hon’ble Courts and Apex Court in the ratio of the decisions referred to RSA No.55 of 2011 Page 10 of 14 {{ 11 }} supra, it can safely be concluded that, the concurrent findings on facts arrived by the trial court as well as 1st Appellate Court after appreciating the evidence of the parties that, the plaintiff has become able to establish that, she (plaintiff) and the defendant are the two successors of Subhadra Biswas and the defendant has failed to establish that, Subhadra Biswas had 3 other daughters namely, Gurudasi, Haridasi and Pramila are not erroneous in any manner. It is the settled propositions of law that, issues of civil matters are to be decided on a balance of probabilities. On that aspect, the propositions of law have already been clarified in the ratio of the following decision of the Apex Court: I. 100 (2005) CLT 147 (SC): Sona Bala Bora & Others Vs. Jyotirindra Bhatacharjee Suit—Issues of civil matter—To be decided on a balance of probabilities. When after appreciating the evidence of both the sides, the trial court as well as the 1st Appellate Court have accepted the case of the plaintiff that, Subhadra Biswas died leaving behind the plaintiff and defendant as her two successors only and when the pleadings and evidence of the plaintiff have become more probable than the case of the defendant as per the discussions and observations made above, then, at this juncture, the pleadings and evidence of the plaintiff that, she RSA No.55 of 2011 Page 11 of 14 {{ 12 }} (plaintiff) and defendant are the two successors of Subhadra Biswas has become acceptable under law. 13. A preliminary decree in a suit for partition declares the shares of the parties in the suit properties. But in the final decree, different lots are prepared/allotted as per the shares already declared/determined in the preliminary decree. Therefore, the preliminary decree in a suit for partition like the decree passed by the trial court in the suit vide C.S.No.4 of 2008 declares the shares of the parties. Because, in that decree, share of the plaintiff and defendant in the suit properties has been declared as half share each. So, as per law, the declaration of the shares of the parties through a preliminary decree in a suit for partition is declarative in nature. As per Section 35 of the Specific Relief Act, 1963, a declaratory decree does not operate as a Judgment in rem, but the said Judgment is a Judgment in personam. Therefore, a declaratory decree does bind the parties to the suit, or the person claiming through parties to the suit only, but the same does not bind the persons those are not the parties to the suit. 14. So, in view of the aforesaid principles of law, the Judgment and Decree passed by the trial court in the suit vide C.S. No.4 of 2008 and confirmation of the same by the 1st Appellate Court in its Judgment and RSA No.55 of 2011 Page 12 of 14 {{ 13 }} Decree passed in R.F.A. No.10 of 2009 binds the parties of the suit only, but, the said Judgment and Decree shall never bind upon the so-called Gurudasi, Haridasi and Pramila. When, it is established that, the suit properties were the properties of Subhadra Biswas and the said Subhadra Biswas died in the year 1984 leaving behind the plaintiff and defendant as her daughter and son, then, as per Section 15 of the Hindu Succession Act, 1956, the property of a female Hindu shall devolve according to the rules set out in Section 16 i.e. firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband. 15. Here in this suit/appeal at hand, when the husband of Subhadra Biswas i.e. Motilal Biswas had pre-deceased her, for which, the suit properties left by her devolved upon his daughter and son i.e. plaintiff and defendant equally. Therefore, the plaintiff and defendant are entitled to get half share each from the suit properties i.e. from the properties left by Subhadra Biswas. So, the preliminary decree passed by the trial court in the suit vide C.S. No.4 of 2008 for partition of the suit properties between the plaintiff and defendant entitling them half share each and confirmation of the same by the 1st Appellate Court in its Judgment and decree passed in R.F.A. No.10 of 2009 cannot be held as erroneous. For which, the RSA No.55 of 2011 Page 13 of 14 {{ 14 }} question of interfering with the same through this 2nd Appeal filed by the appellant (defendant) does not arise. 16. When, as per the discursions and observations made above, it has already been held that, the Judgment and Decree of the trial court and confirmation to the same by the 1st Appellate Court are not erroneous in any manner, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellant (defendant) does not arise. Therefore, the 2nd appeal filed by the appellant (defendant) must fail. 17. In the result, the 2nd Appeal filed by the appellant (defendant) is dismissed on merit, but without cost. The Judgment and Decree passed by the trial court in the suit vide C.S. No.4 of 2008 and confirmation to the same by the 1st Appellate Court in its Judgment and Decree passed in R.F.A. No.10 of 2009 are confirmed. Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:08.04.2024 (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 10-Apr-2024 13:07:06 RSA No.55 of 2011 Page 14 of 14