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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.127 of 2000 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Bhaktaram Padhan …. Appellant Parsuram Padhan and others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Budhiram Das, Advocate. For Respondents - Mr. A. P. Bose, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :23.09.2024 :: Date of Judgment :30.09.2024 A.C. Behera, J. This second appeal has been preferred against the confirming judgment. 2. The appellant in this second appeal was the sole defendant before the Trial Court in the suit vide T.S. No.42 of 1993 and appellant before the First Appellate Court in the First Appeal vide T.A. No.24 of 1996.
Legal Reasoning
The respondents in this second appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.42 of 1993 and respondents before the First Appellate Court in the First Appeal vide T.A. No.24 of 1996. S.A. No.127 of 2000 Page 1 of 13 3. The suit of the plaintiffs (respondents in this second appeal) before the Trial Court vide T.S. No.42 of 1993 against the defendant (appellant in this second appeal) was a suit for partition. 4. According to the pleadings of the plaintiffs, they (plaintiffs) and defendant are the brothers and sister and they all are Hindus and guided and governed by Mitakshara School of Hindu Law. The law of succession provided in Hindu Succession Act, 1956 is applicable to them for inheritance and succession. The father of the plaintiffs and defendant was Bhika Padhan. That Bhika Padhan died leaving behind his widow wife Pancha Padhan and four children i.e. Parbati (plaintiff No.2), Bhakta (defendant), Jagatram and Parsuram (plaintiff No.1). After the death of Bhika Padhan, his wife Pancha Padhan died. The third child of Bhika Padhan i.e. Jagatram died issueless during his bachelorhood. Accordingly, the plaintiffs and defendant are the children of Bhika Padhan. 5. In order to have a better appreciation, the family pedigree of the plaintiffs and defendant on the basis of the aforesaid pleadings of the plaintiffs is depicted hereunder for an instant reference:- S.A. No.127 of 2000 Page 2 of 13 Genealogy Bhika Padhan = Pancha Padhan Parbati (P-2) Bhakta (defendant) Jagatram Parsuram (P-1) 6. According to the pleadings of the plaintiffs, the properties described in schedule of the plaint are the suit properties for partition. The suit schedule properties are under six Khatas vide Khata Nos.90, 87, 100, 106, 83 & 105. During the lifetime of their father Bhika Padhan, their father Bhika Padhan had acquired all the properties covered under the above six Khatas and accordingly, all the suit properties were the self acquired properties of their father Bhika Padhan. While Bhika Padhan and his wife expired leaving behind the plaintiffs and defendant as their successors, for which, all the suit properties left by their father Bhika Padhan had devolved upon the plaintiffs and defendant equally. Therefore, plaintiffs and defendant have equal share i.e. 1/3rd share each in the suit properties covered under the above six Khatas vide Khata Nos.90, 87, 100, 106, 83 & 105. S.A. No.127 of 2000 Page 3 of 13 When, on dated 14.04.1993, the plaintiffs requested the defendant for metes and bounds partition of the suit schedule joint and undivided properties covered under the above six Khatas, he (defendant) denied for the same. For which, they (plaintiffs) being the brother and sister filed the suit vide T.S. No.42 of 1993 against the defendant (who is also the brother of the plaintiffs) praying for partition of their 1/3rd share each from the suit properties. 7. Having been noticed from the Trial Court in the suit vide T.S. No.42 of 1993, the defendant contested the same by filing his written statement challenging the suit of the plaintiffs by taking the pleas that, the suit properties covered under all the Khatas except the properties covered under Khata No.105 had already been partitioned between them as per a written partition deed dated 21.02.1975 and in such partition, the plaintiff No.2 (sister of the defendant and plaintiff No.1) had received money equal to the value of her share in the joint properties and had relinquished her share in his favour and plaintiff No.1 and accordingly, on the basis of such partition, he (defendant) and plaintiff No.1 were possessing the properties covered under five Khatas vide suit Khata Nos.90, 87, 100, 106 & 83 separately and since such partition/division, he (defendant) has been residing separately after being separated from the plaintiff No.1. The plaintiff No.2 had already been given in marriage prior to the above partition. During his separation, he (defendant) has purchased the Page 4 of 13 S.A. No.127 of 2000 properties covered under suit Khata No.105 individually in his name. As such, the properties covered under suit Khata No.105 are his self-acquired properties out of his own income, in which, the plaintiffs have no interest and possession. As the properties covered under all the suit Khatas other than the properties covered under suit Khata No.105 have already been divided/partitioned between him and the plaintiffs as per the deed of partition dated 21.02.1975, for which, the present suit of the plaintiffs for partition of the suit properties is not maintainable under law. Therefore, the suit of the plaintiffs for partition is liable to be dismissed against him (defendant). 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 (six) numbers of issues were framed by the Trial Court in the suit vide T.S. No.42 of 1993 and the said issues are:- ISSUES (i) (ii) (iii) (iv) (v) (vi) Whether lands of suit Khata No.90, 106, 83 & 87 are the self acquired property of Bhika Padhan? Whether suit lands coming under Khata No.105 acquired out of the amount given by the wife of Bhika Padhan and surplus income from the self acquired lands of Bhika? Whether the R.o.R. of present settlement of the suit land is correct? Whether suit lands are the self acquired property of defendant? Whether there was prior partition between the plaintiff and defendant? To what relief the plaintiff is entitled to? 9. In order to substantiate the aforesaid relief i.e. partition sought for by the plaintiffs against the defendant in the suit vide T.S. No.42 of 1993, the plaintiffs examined three witnesses from their sides including plaintiff S.A. No.127 of 2000 Page 5 of 13 No.1 as P.W.1 and exhibited series of documents on their behalf vide Exts.1 to 9. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant examined five witnesses from his side including him as D.W.1 and relied upon series of documents on his behalf vide Exts.A to F. 10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered issue Nos.1, 3, 5 & 6 in full in favour of the plaintiffs and against the defendant and answered issue Nos.2 & 4 in part in favour of the plaintiffs and in part in favour of the defendant and basing upon the findings and observations made by the Trial Court in the issues, the Trial Court decreed the suit of the plaintiffs vide T.S. No.42 of 1993 preliminarily in part on contest against the defendant for partition, but without cost, as per its judgment and decree dated 22.12.1995 and 08.01.1996 respectively entitling the plaintiffs and defendant to get 1/3rd share each in the properties covered under suit Khata Nos.90, 87, 100, 106 & 83 and excluded the properties covered under suit Khata No.105 vide Plot No.1935 from partition assigning the reasons that, the properties covered under all the Khatas except the properties covered under suit Khata No.105 were acquired by the father of the parties i.e. Bhika Padhan and after the death of Bhika Padhan, the properties covered under suit Khata Page 6 of 13 S.A. No.127 of 2000 Nos.90, 87, 100, 106 & 83 had devolved upon the plaintiffs and defendant equally and the said properties are the joint and undivided properties of the plaintiffs and defendant, in which, the plaintiffs and the defendant have equal share and there was no previous partition of the said joint and undivided properties covered under suit Khata Nos.90, 87, 100, 106 & 83 between the plaintiffs and defendant. So, they (plaintiffs & defendant) are entitled for 1/3rd share each in the properties covered under suit Khata Nos.90, 87, 100, 106 & 83. But, the properties covered under suit Khata No.105 vide plot No.1935 are the self-acquired properties of the defendant, in which, the defendant is the exclusive owner. For which, the said properties covered under suit Khata No.105 are excluded from partition and the plea of the defendant that, the suit properties covered under the suit Khata Nos.90, 87, 100, 106 & 83 were partitioned between them on dated 21.02.1975 through a deed of partition vide Ext.F is not acceptable under law. 11. On being dissatisfied with the aforesaid judgment and decree dated 22.12.1995 and 08.01.1996 respectively passed by the Trial Court in T.S. No.42 of 1993, the defendant challenged the same by preferring the First Appeal vide T.A. No.24 of 1996 being the appellant against the plaintiffs arraying them (plaintiffs) as respondents. 12. In that First Appeal vide T.A. No.24 of 1996, the plaintiffs filed a cross objection (cross appeal) challenging the part dismissal of their suit Page 7 of 13 S.A. No.127 of 2000 for partition in respect of the properties covered under the suit Khata No.105. 13. After hearing from both the sides, the First Appellate Court dismissed that First Appeal vide T.A. No.24 of 1996 filed by the defendant and also dismissed the cross objection filed by the plaintiffs concurring/accepting the findings and observations made by the Trial Court in T.S. No.42 of 1993 as per its judgment and decree dated 17.12.1999 and 25.02.2000 respectively. 14. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide T.A. No.24 of 1996 of the defendant passed by the First Appellate Court as per its judgment and decree dated 17.12.1999 and 25.02.2000 respectively, the defendant challenged the same by preferring this second appeal being the appellant against the plaintiffs arraying them (plaintiffs) as respondents. 15. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether the findings of the Trial Court as well as First Appellate Court that, there was no previous partition of the suit properties between the parties is sustainable under law? (ii) Whether the plaintiff No.2 (sister of the plaintiff No.1 and defendant) is entitled to any share in the suit properties in view of the deed of previous partition vide Ext.F? 16.
Legal Reasoning
I have already heard from the learned counsel for the appellant and the learned counsel for the respondents. S.A. No.127 of 2000 Page 8 of 13 17. As the aforesaid both the formulated substantial questions of law are interlinked having ample nexus with each other as per the judgments and decrees passed by the Trial Court and First Appellate Court on the basis of the pleadings and evidence of the parties, then both the formulated questions of law are taken up together analogously for their discussions hereunder. 18. So far as the claim of previous partition of the appellant (defendant) between the parties on dated 21.02.1975 as per the deed of partition vide Ext.F is concerned; Ext.F is an unregistered deed of agreement, to which, the defendant is claiming that, the said Ext.F is their deed of family partition between him and the plaintiffs on dated 21.02.1975. Due to non-availability of the signature of plaintiff No.2 (who is the sister of plaintiff No.1 and defendant) in the Ext.F, the Trial Court as well as the First Appellate Court both have specifically held that, Ext.F cannot be treated/accepted as family partition between the parties, as the plaintiff No.2 has not signed on the same. When, the signature or L.T.I. or R.T.I. of the plaintiff No.2 is not available in the Ext.F and when the plaintiffs are denying the execution of the said Ext.F, then at this juncture, it was the duty and obligation of the defendant for proving the due and proper execution of the same, but surprisingly, there is no legally admissible evidence on behalf of the Page 9 of 13 S.A. No.127 of 2000 defendant to prove the due and proper execution of the Ext.F between him and the plaintiffs. Because, the plaintiff No.2 was not a party to the Ext.F. When undisputedly, either the signature or the L.T.I. or the R.T.I. of the plaintiff No.2 is not available in the Ext.F, then it is safely concluded that, the plaintiff No.2 was not a party to that Ext.F. For which, Ext.F cannot be held as a deed of partition between the plaintiffs and the defendant in respect of their joint and undivided properties. The conclusion drawn above finds support from the ratio of the following decisions:- (i) AIR (1953) Calcutta 377—Umapati Choudhuri and others Vrs. Subodh Chandra Choudhuri and others— (Para 1)—When all the co-sharers are not included in previous partition suit, then such partition decree is ineffective. (ii) 2011 (1) CJD (HC) 152—Smt. Pakini alias Dalimba Naik and others Vrs. Gajendra Patel (dead), Akshya Ku Patel and others—(Para 17)—Hindu Law—Partition—An unjust and unfair partition can be reopened at any time. (iii) 2014 (II) OLR—932—Sarojini Dei alias Das and others Vrs. Satya Prasad Pattnaik and others—(Para 18)—Non-inclusion of some members having unity of title and possession to the so called deed, renders the document of having no value in the eye of law. 19. So far as the argument raised on behalf of the respondents (plaintiffs) that, the properties covered under suit Khata No.105 are also liable for partition between plaintiffs and defendant like the properties covered under other five Khatas is concerned; S.A. No.127 of 2000 Page 10 of 13 The above plea was raised/agitated on behalf of the respondents/plaintiffs before the First Appellate Court by filing a cross objection, but after hearing from both the sides, that cross objection of the respondents (plaintiffs) was dismissed by the learned First Appellate Court. After dismissal of such cross objection, the plaintiffs neither have preferred any independent appeal challenging the dismissal of their cross objection nor have filed any cross objection in this second appeal. 20. So, due to non-filing of any appeal or cross objection challenging the dismissal of the cross objection of the plaintiffs (respondents in this second appeal) by the First Appellate Court in T.A. No.24 of 1996, the dismissal judgment of the cross objection of the plaintiffs passed by the First Appellate Court in T.A. No.24 of 1996 has already been reached in its finality, for which, the plaintiffs (respondents in this second appeal) are precluded under law to agitate the same during the course of arguments of this second appeal. On this aspect the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) (2015) 2 SCC 682—Rajni Rani and another Vrs. Khairati Lal and others—CPC, 1908—O.8 R.6-A and Section 96 read with O.2 R.2—Remedy against final order of dismissal of counter claim on merits—appeal is the proper remedy—Such order attains status of decree—Order of dismissal of counter claim amounts to a decree, the second suit for the same is barred Page 11 of 13 S.A. No.127 of 2000 under O.2 R.2 of the CPC, because Order of dismissal of counter claim can be sought to be set aside by filing an appeal. (ii) 2019 (I) ILR—Cuttack-736—Smt. Rama Deo Vrs. State of Orissa & Others—CPC, 1908—Section 11—Suit dismissed but counter claim allowed—Against the judgment and decree passed in suit the plaintiff filed appeal but no appeal was filed against the judgment passed in counter claim—The question as to whether the judgment and decree in the counter claim shall operate as res judicata?—Held, Yes. (iii) 2023 (III) ILR-Cuttack-964—Pitambar Giri and others Vrs. Bishnupada Das —CPC, 1908—Section 11—The Trial Court dismissed the suit of the plaintiff and as well as the counter claim of the defendants—The defendants have not preferred any appeal or cross objection in the 1st appeal challenging the order of dismissal of their counter claim— Whether the final finding made by the learned Trial Court against the defendants has become res-judicata against them?- Held, Yes. (Para 17) 21. As per the discussions and observations made above, when the contentions of the appellant (defendant) regarding the previous partition in respect of the properties covered under suit Khata Nos.90, 87, 100, 106 & 83 have already been negatived and when it is the concurrent findings and observations of the Trial Court and First Appellate Court that, the properties covered under suit Khata Nos.90, 87, 100, 106 & 83 are the joint and undivided properties of the plaintiffs and defendant and when the findings and observations of the Trial Court and First Appellate Court that, the plaintiffs and defendant have 1/3rd share each in the properties covered under suit Khata Nos.90, 87, 100, 106 & 83 are not unreasonable or inacceptable under law and when the contentions raised on behalf of the plaintiffs that, the properties covered under suit Khata No.105 are not the self acquired properties of the defendant have not become sustainable Page 12 of 13 S.A. No.127 of 2000 under law for the reasons assigned above, then at this juncture, the question of interfering with the judgments and decrees passed by the Trial Court and First Appellate Court through this second appeal preferred by the appellant (defendant) does not arise. Therefore, there is no merit in the appeal of the appellant (defendant). The same must fail. 22. In result, the appeal filed by the appellant (defendant) is dismissed on contest, but without cost. The judgments and decrees passed by the Trial Court and First Appellate Court in T.S. No.42 of 1993 and T.A. No.24 of 1996 respectively are confirmed. Orissa High Court, Cuttack. 30.09.2024//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: 30-Sep-2024 16:12:17 S.A. No.127 of 2000 Page 13 of 13