Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.127 of 2002 In the matter of an appeal under Section 100 C.P.C, 1908. *** Narahari Das (dead) & Others … Appellants. -VERSUS- Pahali Das & Another … Respondents. Counsel appeared for the parties: For the Appellants : Mr. M. Mohanty, Advocate. For the Respondents : Mr.G. Samal, Advocate On behalf of Mr.S. Mohanty, Adv. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 09.07.2025 :: Date of Judgment :31.07.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This 2nd Appeal has been preferred against the confirming Judgment. S.A. No.127 of 2002 Page 1 of 19 2. The appellants in this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.65 of 1993 and appellants before the First Appellate Court in the First Appeal vide T.A. No.112 of 1996. The respondents in this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.65 of 1993 and respondents before the First Appellate Court in the 1st Appeal vide T.A. No.112 of 1996. 3.
Legal Reasoning
The suit of the plaintiffs (appellants in this 2nd Appeal) against the defendants (respondents in this 2nd Appeal) vide T.S. No.65 of 1993 was a suit for partition, repurchase and permanent injunction. 4. As per the averments made by the plaintiffs in their plaint in nutshell was that, the properties described in Schedule “A” of the plaint are the suit properties and the genealogy described in Para No.2 of the plaint is the family pedigree of the plaintiffs and defendant No.2. As per the genealogy given by the plaintiffs in Para No.2 of their plaint, Fakira Das was the father of the plaintiffs and defendant No.2. The said Fakira Das died leaving behind defendant No.2 and plaintiffs as his four sons. As such, the S.A. No.127 of 2002 Page 2 of 19 plaintiffs and defendant No.2 are four brothers. The defendant No.2 is the eldest brother of the all the three plaintiffs. The plaintiffs and defendant No.2 belong to “Gouda” by caste. They were doing milk business. Out of the joint contribution made by their parents and defendant No.2, the suit properties described in Schedule “A” of the plaint was purchased from one Babaji Kheelar in the name of the defendant No.2 through sale deed No.2041 dated 19.03.1951 on payment of consideration amount of Rs.95/- while the defendant No.2 was aged about 22 years. As such, the Schedule “A” suit properties were purchased from the joint family income of the plaintiffs for the benefit of their joint family. After purchasing the suit properties on dated 19.03.1951, five thatched rooms were constructed thereon through mud and clay for the joint family of the plaintiffs and defendant No.2. The houses standing on the suit properties belong to the joint and undivided family of the plaintiffs and defendant No.2. The suit properties have not been partitioned as yet between them (plaintiffs and defendant No.2) through any metes and bounds partition. In order to grab the suit properties alone illegally, the defendant No.2 fraudulently sold S.A. No.127 of 2002 Page 3 of 19 away the suit properties to the defendant No.1 without any consideration amount and without transfer of any title of the suit properties in favour of the defendant No.2 through a nominal registered deed of sale bearing No.1434 dated 15.09.1992. So, they (plaintiffs) are not bound by the said collusive and fraudulent deed dated 15.09.1992 executed by the defendant No.2 in respect of the suit properties in favour of the defendant No.1. The defendant No.1 is a stranger to the family of the plaintiffs and defendant No.2. For which, the defendant No.1 being the stranger to their family, he (defendant No.1) is not entitled to possess their undivided dwelling house i.e. the suit properties in contravention of Section 44 (2) of the T.P. Act, 1882. The above sale deed No.1434 dated 15.09.1992 executed by the defendant No.2 in favour of the defendant No.1 in respect of the suit properties is void, invalid, inoperative and the same is not binding upon them (plaintiffs). For which, the defendant No.1 has no right, title, interest and possession over the suit properties. So, they (plaintiffs) have right to repurchase the 1/4th share of the defendant No.2 in the suit properties from the defendant No.1. After knowing about the execution of the sale deed dated S.A. No.127 of 2002 Page 4 of 19 15.09.1992 by the defendant No.2 in favour of the defendant No.1 in respect of the suit properties, the plaintiffs requested the defendant No.2 for partition of the suit properties, to which, the defendant No.2 did not agree. For which, the plaintiffs filed the suit vide T.S. No.65 of 1993 against the defendants praying for partition of their 1/4th share each from the suit properties and to declare that, they (plaintiffs) have right to repurchase 1/4th share of the defendant No.2 from the defendant No.1 and to restrain the defendant No.1 permanently from coming over the suit properties and from causing/creating any sort of disturbance in their peaceful possession and enjoyment of the suit properties. 5. Having been noticed from the Trial Court in the suit vide T.S. No.65 of 1993, both the defendants contested the same by filing their joint written statement denying the averments made by the plaintiffs in their plaint taking their stands specifically that, the father of the plaintiffs and defendant No.2 i.e. Fakira Das was very poor and he was unable to provide better education to his children. So, the defendant No.2 being the eldest son of his father i.e. Fakira Das tried to earn money to maintain his family, because the plaintiffs were S.A. No.127 of 2002 Page 5 of 19 minor by then. For which, in order to maintain the family, the defendant No.2 went to Calcutta in the year 1947 and served
Legal Reasoning
there as a worker in Srirampur Cotton Mills for monthly salary of Rs.80/- and he served there up to the year 1950 and when he came to know that Orissa Textile Mills has been established in at Choudwar, Odisha, then, he (defendant No.2) resigned from Srirampur Cotton Mills at Calcutta and served in Orissa Textile Mills at Choudwar, Odisha in that year. During his service period at Shrirampur Cotton Mills at Calcutta, he (defendant No.2) had saved some money from his salary after meeting his all expenses. So, the defendant No.2 was interested to purchase a piece of land at Choudwar for his residential purpose instead of staying in a rented house. Therefore, out of the saved money from his own income, he (defendant No.2) purchased the suit properties described in Schedule “A” of the plaint from one Babaji Kheelar on dated 19.03.1951 through R.S.D No.2041 in his name on payment of due consideration amount thereof i.e. Rs.95/- to Babajee Kheelar. Since the date of purchase of the suit properties in his name out of his own income, he (defendant No.2) became the exclusive owner of the same and subsequent thereto S.A. No.127 of 2002 Page 6 of 19 constructed two thatched houses on the same for his residential purpose and also resided in the said house. Thereafter, the defendant No.2 brought his three minor brothers i.e. plaintiffs from his native village to Choudwar to take their care, because, by that time, his father was very old. So, the plaintiffs along with his father and brothers stayed in the house on the said suit land for some period. The defendant No.2 engaged/employed his 3 brothers i.e. plaintiffs in the Orissa Textile Mills at Choudwar and all the plaintiffs became the employee of Orissa Textile Mills at Choudwar and they (plaintiffs) were allotted with separate quarter vide quarters No.14/6(c), 14/2(e) and 179 respectively by the Orissa Textile Mills and they (plaintiffs) stayed in their respective allotted quarters. In the year 1991, the defendant No.2 retired from his service at Orissa Textile Mills at Choudwar and wanted to sell the suit properties for the purpose of staying in his native village at Badari under Patkura Police Station in the district of Cuttack, now in the district of Kendrapara. For which, he (defendant No.2) requested plaintiffs to purchase his suit properties, but the plaintiffs did not agree for the same, for S.A. No.127 of 2002 Page 7 of 19 which, he (defendant No.2) sold the suit properties to the defendant No.1 by executing and registering the sale deed No.1434 dated 15.09.1992 for a consideration amount of Rs12,000/- and delivered possession thereof and accordingly, since 15.09.1992, the purchaser (defendant No.1) became the owner of the suit properties and possessed the same by constructing a new house thereon. The defendant No.1 is in possession over the suit properties as the exclusive owner of the same. The plaintiffs have no right, title, interest and possession over the same, because, the suit properties were not the ancestral properties of the plaintiffs and the same was also not purchased out of the joint family funds of the family of the plaintiffs from Babaji Kheelar. The suit properties were the self-acquired properties of the defendant No.2 and the defendant No.2 has sold the same to the defendant No.1 and the defendant No.1 is the owner and in possession over the same. For which, the suit for partition filed by the plaintiffs against them (defendants) for partition of the suit properties is not maintainable under law. Therefore, the plaintiffs are not entitled to repurchase the suit properties from the defendant No.1. So, the plaintiffs are not entitled for any relief including S.A. No.127 of 2002 Page 8 of 19 the relief i.e. injunction as sought for by them (plaintiffs) against the defendant No.1. Therefore, the suit of the plaintiffs is liable to be dismissed against the defendants. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court in the suit vide T.S. No. 65 of 1993 and the said issues are: ISSUES 1. Is the suit maintainable? 2. Is there any cause of action to file the suit? 3. Whether the suit land is a joint family property of the plaintiffs and defendant No.2 or the self-acquired properties of the defendant No.2? 4. favour of the defendant No.1 is genuine and proper? 5. Whether the sale deed executed by the defendant No.2 in To any other reliefs which the plaintiffs are entitle to? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, the plaintiffs examined 5 numbers of witnesses from their side including the plaintiff Nos.1 to 3 as P.Ws.1,3 & 4 and relied upon the documents vide Exts.1 to 6. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendants examined 3 witnesses on their behalf including the defendant No.1 as D.W.1 and relied upon the documents from their side vide Exts.A to F. S.A. No.127 of 2002 Page 9 of 19 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues against the plaintiffs and in favour of the defendants and basing upon the findings and observations made by the Trial Court in all the issues against the plaintiffs and in favour of the defendants, the Trial Court dismissed the suit of the plaintiffs vide T.S. No.65 of 1993 on contest against the defendants as per its Judgment and Decree dated 22.08.1996 & 06.09.1996 respectively assigning the reasons that, “on appreciation of pleadings and documentary evidence of the parties, it is found that, the suit land was not the joint family properties of the plaintiffs, but the same was the self- acquired properties of the defendant No.2. The defendant No.2 had purchased the suit properties from one Babaji Kheelar through R.S.D. No.2041 dated 19.03.1951 vide Ext.1 out of his own income and the said defendant No.2 was the exclusive owner of the suit properties. The defendant No.2 has sold the suit properties to the defendant No.1 by executing and registering the sale deed No.1434 dated 15.09.1992 vide Ext.A and since the date of purchase, the defendant No.1 has been S.A. No.127 of 2002 Page 10 of 19 possessing the suit properties as the exclusive owner of the same. For which, the suit properties were/are not the joint and undivided properties of the plaintiffs. Therefore, the plaintiffs have no right to seek partition of the suit properties. So, they (plaintiffs) are not entitled to repurchase the suit properties from the defendant No.1, as they (plaintiffs) have failed to prove their any interest in the suit properties. They (plaintiffs) have also failed to establish that, the suit properties is their undivided dwelling house. For which, the suit for partition filed by the plaintiffs praying for partition of the suit properties is not maintainable under law. Therefore, there was no cause of action for the plaintiffs for filing of the suit against the defendants. 9. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit vide T.S. No.65 of 1993 of the plaintiffs passed by the Trial Court in T.S. No.65 of 1993, they (plaintiffs) challenged the same by preferring 1st Appeal vide T.A. No.112 of 1996 being the appellants against the defendants arraying them (defendants) as respondents. After hearing from both the sides, the learned First Appellate Court dismissed that 1st Appeal vide T.A. No.112 of S.A. No.127 of 2002 Page 11 of 19 1996 of the plaintiffs on contest as per its Judgment and Decree dated 01.03.2002 & 06.03.2002 concurring/confirming the findings and observations made by the Trial Court in its Judgment and Decree for the dismissal of the suit vide T.S. No.65 of 1993 of the plaintiffs. 10. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the First Appeal vide T.A. No.112 of 1996 of the plaintiffs passed by the learned First Appellate Court, they (plaintiffs) challenged the same preferring this 2nd Appeal being the appellants against the defendants arraying them (defendants) as respondents. When, during the pendency of this 2nd Appeal, the appellant No.1 (plaintiff No.1) and respondent No.2 (defendant No.2) expired, then, in their places, their LRs have been substituted. 11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. When the defendant No.2 has not I. been able to prove his defence plea through his evidence, then, whether the Trial Court and First Appellate Court are justified in dismissing the suit? II. Whether the Trial Court and First Appellate Court are justified in refusing the S.A. No.127 of 2002 Page 12 of 19 relief of repurchase of the suit land sought for by the plaintiffs, when there is no findings in the Judgments of the Trial Court and First Appellate Court about the date of severance of status of the plaintiffs and defendant No.2 and when the defendant No.2 has not stated in his pleadings and evidence about the severance of status? III. the evidence of the witnesses of the plaintiffs is providing an opposite conclusion, than, the conclusion drawn by the Trial Court and First Appellate Court? appreciation Whether of 12. When, the aforesaid three formulated substantial questions of law are interlinked having ample nexus with each other according to 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, all the above formulated substantial questions of law are taken up together analogously for their discussions hereunder: It is the concurrent findings on facts of the learned Trial Court and learned First Appellate Court on appreciation of pleadings and evidence of the parties that, the suit properties described in Schedule “A” of the plaint was purchased by the defendant No.2 through R.S.D.No.2041 dated 19.03.1951 vide Ext.1 from Babaji Kheelar out of his own income, but the suit properties were not purchased from the joint family S.A. No.127 of 2002 Page 13 of 19 contribution. The suit properties were the self-acquired properties of the defendant No.2, in which, the plaintiffs had no interest and the defendant No.2 has sold away the suit properties validly/properly to the defendant No.1 by executing and registering the sale deed vide R.S.D. No.1434 dated 15.09.1992 vide Ext.A after receiving the due consideration amount thereof and since the date of purchase i.e. since 15.09.1992, the defendant No.1 has been possessing the suit properties as the exclusive owner thereof, in which, the plaintiffs have no interest and possession. For which, the plaintiffs have no locus standie to seek the relief i.e. partition of the suit properties and also to seek the relief i.e. to repurchase the same from the defendant No.1 including the relief i.e. permanent injunction against the defendant No.1 assigning the reasons that, except some oral testimonies of the witnesses of the plaintiffs, there is no cogent and satisfactory evidence on their behalf to prove that, the suit properties are their joint family properties. Because, it is established from the oral and documentary evidence of the parties that, the suit properties were the self-acquired properties of defendant No.2 and defendant No.2 has sold the S.A. No.127 of 2002 Page 14 of 19 same to defendant No.1 and defendant No.1 is the exclusive owner and in possession over the same. The conclusions drawn above by the learned Trial Court and learned First Appellate Court finds support from the ratio of the following decisions: i) ii) iii) iv) v) In a case between Anumandla Karuna & Others Vs. Anumandla Jan Redyy & Others reported in 2023 (4) Civil Court Cases 695 (Tel.) Para No.12 & 13 that, except the oral testimony, no cogent and satisfactory evidence was adduced by the plaintiffs to prove that the suit properties are joint family properties. Suit rightly dismissed in respect of items covered by Schedule-II and III. In a case between Brundaban Padhan & Others Vs. Krishna Padhan reported in 1985 (1) OLR 186 that, partition suit—No evidence of purchase of the property acquired property from out of assets of joint family. Not liable for partition. In cases between Kunja Prusti & Others Vs. Harekrushna Prusti & Others & Bhagawat Sharan (dead thr. Lrs.) Vs. Purushottam & Others reported in 70 (1990) CLT 269 & 2020 (2) CCC 261 (SC) that, in a suit for partition, who claims any particular item of property to be an item of joint family property, the burden of proving that it is so, rights on him. In a case between Kavitha Goud vs Nookala Sudarshan Reddy And Ors. reported in 2005 (3) Civ.C.C. 575 (A.P) (Para No.17) that, any member of joint family can acquire property of his own, unconnected with joint family, as his self-acquired property. In a case between Sunkara Lakshminarasamma (D) by LRs Vs. Sagi Subba Raju & Others Etc. reported in 2018(4)CCC440 (SC) that, when a person becomes sole owner of entire property by proving wills, there would be no question of partition. The above concurrent findings on facts arrived by the learned Trial Court and learned First Appellate Court in their respective Judgments and Decrees after appreciation of pleadings and evidence of the parties are not interfereable as S.A. No.127 of 2002 Page 15 of 19 per law by this 2nd Appellate Court under Section 100 of the CPC, 1908. Because, as per law, High Court has no jurisdiction under Section 100 of the CPC, 1908 to disturb the concurrent findings on facts made by the Trial Court and First Appellate Court after proper appreciation of pleadings and evidence of the parties. 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) 2010 (3) PLR 387 (P & H)—Tarsen Lal Vrs. D. Improvement Trust, Patiala—CPC, 1908—Section 100—High Court has no jurisdiction to interfere with the findings of the fact arrived at by Courts below, even if, the same are erroneous—Legislature never wanted Second Appeal to become a third trial on facts. 2014 (Supp-I) OLR 429—Kasinath Nandi (dead), after him, his (ii) LRs. Tapan Kumar Nandi and others Vrs. Rudranarayan Mishra and others—(Paragraph 9)—CPC, 1908—Section 100—Findings by Courts below being a finding of fact on proper appreciation of evidence, it cannot be interfered with in Second Appeal. 2017 (I) Civil Court Cases 515 (Bombay)—Madhukar vrs. Smt. (iii) Nanda Madhukar Yene and another—CPC, 1908—Section 100— Second Appeal—Concurrent findings of fact by Trial Court and First Appellate Court considering evidence led by both the parties, when such findings are not perverse, the same cannot be interfered with in the Second Appeal. (iv) 2020 (I) Apex Court Judgments—C. Doddanarayana Reddy (dead) by Lrs. & others Vrs. C. Jayarama Reddy (dead) by Lr. & others—CPC, 100—Second Appeal—Concurrent finding—Finding of fact cannot be interfered in the Second Appeal, unless the findings are perverse. 1908—Section 2018 (6) ALD-2—M. Venugopal Vrs. Smt.M.B. Rama Tulasi— (v) CPC, 100—Second Appeal—Re-appreciation of evidence—High Court S.A. No.127 of 2002 Page 16 of 19 cannot re-appreciate the evidence and arrive at different conclusion—non re-appreciation of entire evidence is warranted in Second Appeal. 13. Here in this suit/appeal at hand, when it appears clearly and unambiguously from the contents of the sale deed No.2041 dated 19.03.1951 vide Ext.1 that, the suit properties were purchased in the name of the defendant No.2, when the plaintiffs were minor and when it is the concurrent findings on facts made by the learned Trial Court and learned First Appellate Court after appreciation of pleadings and evidence of the parties that, the plaintiffs have failed to established their claim concerning the purchase of the suit properties as per sale deed vide R.S.D. No.2041 dated 19.03.1951 (Ext.1) in the name of the defendant No.2 through the contribution of their joint family funds, then, at this juncture, the said findings on facts arrived by the Trial Court and First Appellate Court are not intereferable as per law in this 2nd Appeal, because that findings are neither unreasonable nor perverse. For which, by applying the principles of law enunciated in the ratio of the aforesaid decisions, there is no justification under law for making interference with the same. S.A. No.127 of 2002 Page 17 of 19 14. It is the settled propositions of law that, in a suit for partition, foundational facts must be proved by the plaintiffs in order to succeed in the suit for partition establishing that, they (plaintiffs) have interest in the suit properties. If the plaintiffs fail to establish their interest in the suit properties, then, the suit for partition filed by the plaintiffs cannot be maintainable under law and they (plaintiffs) shall be held as non-suited. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions: i. ii. iii. iv. v. In a case between Ram @ Ramdas Shesrao Vs. Shesrao Baburao Neharkar & Others reported in 2024 (3) CCC 123 (SC) that, in a suit for partition, foundational facts must be proved by plaintiffs in order to succeed in suit or else, the suit is to be dismissed. In a case between Venigalla Koteswaramma Vs. Malempati Suryamba & Others reported in 2021 (1) OLR (SC)601 that, the first ingredient in a suit for partition for making the suit maintainable is that, the plaintiffs have share/interest in the suit properties. (Para No.37) In a case between Kamlikar Jangoji & Others Vs. Kamlikar Anasuja & Others reported in 2025 (1) CCC 193 (Tel) Para No. that, a person, who does not have a share in the suit properties, he/she cannot be a party to a suit for partition. In a case between Hoshiar Singh & Others Vs. Sukha & Others reported in 2024 (4) Civ.C.C. (P & H) 625 that, a family partition would be effected only when the parties have a right in the property. In a case between Hadibandhu Moharana Vs. Smt. Sobha Deb & Others reported in 2019 (2) OJR (161) that, since the plaintiff has no valid title over the suit properties, suit for partition on such property not maintainable. S.A. No.127 of 2002 Page 18 of 19 15. Here in this suit/appeal at hand, when the plaintiffs have not been able to establish that, they (plaintiffs) have their share/interest in the suit properties, then, at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it cannot be held that, the Judgments and Decrees passed by the learned Trial Court and learned First Appellate Court in dismissing the suit of the plaintiffs for partition is erroneous. For which, the question of interfering with the Judgments and Decrees passed by the learned Trial Court and learned First Appellate Court through this 2nd Appeal filed by the appellants (plaintiffs) does not arise. 16. Therefore, there is no merit in this 2nd Appeal filed by the appellants (plaintiffs). The same must fail. 17. In result, this 2nd Appeal filed by the appellants (plaintiffs) is dismissed on contest, but without cost. 18. The Judgments and Decrees passed by the Trial Court and First Appellate Court in T.S. No.65 of 1993 and T.A. No.112 of 1996 respectively are confirmed. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 01-Aug-2025 18:34:09 High Court of Orissa, Cuttack The 31 .07. 2025// Rati Ranjan Nayak Sr. Stenographer (ANANDA CHANDRA BEHERA) JUDGE S.A. No.127 of 2002 Page 19 of 19