Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK R.S.A. No.170 of 2002 In the matter of an appeal under Section 100 C.P.C, 1908. *** Kana Majhi (dead) & Others … Appellants. -VERSUS- Durga@ Munsi Majhi & Others … Respondents. Counsel appeared for the parties: For the Appellant : Mr. B.C. Panda, Advocate. For the Respondents : None. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Dates of Hearing : 17.09.2024 :: Date of Judgment : 30.09.2024 ANANDA CHANDRA BEHERA, J.— JUDGMENT 1. This 2nd Appeal has been preferred against the reversing Judgment. R.S.A. No.170 of 2002 Page 1 of 16 2. The appellants in this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.44 of 1996 and respondent Nos.1 to 5 before the First Appellate Court in 1st Appeal vide T.A. No.32 of 1999. The respondents in this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.44 of 1996 and appellants as well as respondent Nos.6 & 7 before the First Appellate Court in the 1st Appeal vide T.A. No.32 of 1999.
Legal Reasoning
The suit of the plaintiffs (appellants in this 2nd Appeal) against the defendants (respondents in this 2nd Appeal) vide T.S. No.44 of 1996 was a suit for declaration. The properties described in Schedule “H” & “I” are the suit properties. 3. According to the plaintiffs, their common ancestor was Mundura Majhi. Mundura Majhi died leaving behind his two sons i.e. Durga & Kana. Durga died leaving behind his 5 sons i.e. Ramdo, Suna, Sida, Tila & Gora. Ramdo, Sida, Tila and Gora died issueless. Suna died leaving behind his 2 sons i.e. Durga @ Munsi (defendant No.1) and Charu Charan. Charu Charan died leaving behind his wife and one son i.e. Heera Majhi (defendant No.2) and Tilak @ Chandan Majhi (defendant No.3). The 2nd son of Mundura Majhi i.e. Kana Majhi died in the year 1964 leaving behind his daughter Bali. Bali died in the year 1987 leaving behind R.S.A. No.170 of 2002 Page 2 of 16 her 3 sons and one daughter i.e. Shyamsundar, Kana (plaintiff No.1), Devi (plaintiff No.2). Shyama Sundar died leaving behind his wife and two sons i.e Duli (Plaintiff No.3), Ratha (Plaintiff No.4) and Laxman (Plaintiff No.5). 4. Though the parties to the suit are Santal by caste and belong to Scheduled Tribe Community, but they are guided and governed by Mitakshara School of Hindu Law. All the suit properties along with other properties had originally belonged to Mundura Majhi. The said Mundura Majhi had properties in two Mouzas i.e. Tadikijharan and Bhupad. Their ancestral properties in Mouza Tadikijharan & Bhupad were Ac.21.98 Decimals & Ac.4.80 Decimals under Sabik Khata No.25 & 71 respectively, those have been described in Schedule “B”. 5. After the death of Mundura Majhi, the properties left by him under Sabik Khata No.25 & 71 in Mouza Tadikijharan and Bhupad devolved upon his two sons i.e. Durga and Kana. After the death of Durga, while Kana was alive, the suit properties were partitioned in the year 1945 between Kana and the sons of Durga i.e. Ramdo, Suna & Gora in the month of Magha in presence of the Bhadralokas. In such partition in the year 1945 between Kana, Ramdo, Suna and Gora, the above children of Durga Majhi jointly got Schedule “C” properties and Kana alone got Schedule “D” properties. The R.S.A. No.170 of 2002 Page 3 of 16 members of both the branches i.e. the members of the branch of Durga & Kana possessed their above respective allotted shares separately. When Kana expired leaving behind his daughter Bali as his only successor, then, the Schedule “D” properties, those had fallen in his share devolved upon his daughter i.e. Bali and Bali possessed the Schedule “D” properties after the death of her father Kana as exclusive owner. On the basis of exclusive ownership and possession of Bali alone and the sons of Durga jointly to their respective allotted shares from their ancestral properties in respect of their allotted properties of their respective branch, the properties described in Schedule “E”, “F” & “G” were recorded separately. As Bali died prior to the final publication of the Hal Settlement R.o.R, leaving behind the plaintiffs as her successors, some properties of Schedule “D” in Mouza Tadikijharan (described in Schedule “H”) were erroneously recorded in the name of Defendant No.1 and husband of the defendant No.2. Likewise, some properties in Schedule “D” in Mouza Bhupad (described in Schedule “I”) were erroneously recorded in the Hal R.o.R jointly in the name of Bali along with the defendant No.1 and husband of defendant No.2. 6. Even though, the plaintiffs are the owners and in possession over Schedule “H” & “I” properties, but, when, the same were erroneously R.S.A. No.170 of 2002 Page 4 of 16 recorded in the names of the defendant No.1 and husband of defendant No.2 in the major settlement, then, the defendant Nos.1 to 3 tried to dispossess the plaintiffs from the Schedule “H” & “I” properties, for which, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.44 of 1996 against the defendants praying for declaration of their right, title, interest and possession over the Schedule “H” & “I” properties and confirmation of their possession on the same. For which, the properties described in Schedule “H” & “I” are the suit properties in the suit vide T.S. No.44 of 1996. 7. Having been noticed from the Trial Court in the suit vide T.S. No.44 of 1996, out of the defendant Nos.1 to 3, only the defendant No.1 contested the same by filing his written statement denying the allegations alleged by the plaintiffs in their plaint but the defendant Nos.1 & 2 were set ex-parte. As per the pleadings of the defendant No.1 in his written statement, the plaintiffs have no cause of action for filing the suit. The suit of the plaintiffs is not maintainable under law. According to him (defendant No.1), after the death of Kana i.e. the father of Bali, he (defendant No.1) and his brother i.e. Charu Charan (husband of the defendant No.2) possessed their entire ancestral properties left by Mundura Majhi described in Schedule “B” in Mouza i.e. Tadikijharan & Bhupad. As, Mundura Majhi died in the month of January 1965, for which, since January 1965, he (defendant No.1) R.S.A. No.170 of 2002 Page 5 of 16 and his brother Charu Charan have been possessing the suit Schedule “H” & “I” properties openly, peacefully and without any interruption. After the death of Charu Charan, his LRs have also been jointly possessing with him (defendant No.1) to the said Schedule “H” & “I” properties, which is more than 30 years. Therefore, he (defendant No.1) along with defendant No.2 and 3 have acquired their title over the Schedule “H” & “I” properties through adverse possession due to their continuous possession to the same for more than 30 years. For which, the suit properties in Mouza Tadikijharan described in Schedule “H” have been correctly recorded in their names. But, the settlement authorities have recorded wrongly inserting the name of Bali jointly with them in respect of the properties in Mouza Bhupad described in Schedule “I” but the said wrong recording of the name of Bali jointly with them (defendants) in respect of Schedule “I” properties cannot create any right over the Schedule “I” properties in favour of the plaintiffs. The further case of the defendant No.1 was that, there was no prior partition of their ancestral properties left by Mundura Majhi either in the year 1945 or thereafter, for which, the plaintiffs are not entitled for the decree of declaration of their title and confirmation of their possession over the suit Schedule “H” & “I” properties. Therefore, the suit of the plaintiffs is liable to be dismissed against them (defendants) without cost. R.S.A. No.170 of 2002 Page 6 of 16 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 7 numbers of issues were framed by the Trial Court in the suit vide T.S. No.44 of 1996 and the said issues are: ISSUES Whether the land fell to the share of Kana was in exclusive possession Have the plaintiffs any cause of action to bring the suit? Is the suit barred by law of limitation, estoppel, waiver and acquisance? Whether any amicable partition was effected in the year 1945 between 1. 2. 3. sons of Durga & Kana of their ancestral joint family properties? 4. of Bali i.e. his daughter? 5. 6. settlement authority is illegal? 7. Whether the plaintiffs are in possession of the suit land? Whether recording of the suit land in the name of the defendants by the To what other relief or reliefs the plaintiffs are entitled to? 9. In order to substantiate the aforesaid relief i.e. declaration of title and confirmation of possession sought for by the plaintiffs against the defendants, they (plaintiffs) examined 4 witnesses form their side including the plaintiff No.1 as P.W.1 and relied upon the documents vide Exts.1 to 9. On the contrary, in order to defeat/nullify the suit of the plaintiffs, the contesting defendant No.1 examined 4 witnesses on his behalf including him as D.W.1 and exhibited 4 documents from his side vide Exts.A to A/3. 10. 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 plaintiffs and against the defendant Nos.1 to 3 and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiffs, the Trial Court decreed the suit of the R.S.A. No.170 of 2002 Page 7 of 16 plaintiffs on contest against the defendant No.1 and ex parte against the defendant Nos.2 to 3 and declared the right, title, interest of the plaintiffs over the Schedule “H” & “I” properties and also confirmed their possession over the same as per its Judgment and Decree dated 16.07.1999 and 30.07.1999 respectively assigning the reasons that, all the ancestral properties left by their common ancestor Mundura Majhi described in Schedule “B” of the plaint were divided/partitioned between the sons of Durga Majhi and one son of Mundura Majhi i.e. Kana Majhi in the year 1945 and in such partition, the properties described in Schedule “H” & “I” along with some other properties had fallen in the share of Kana Majhi and accordingly, on the basis of such partition, Kana Majhi was the exclusive owner over his allotted properties including Schedule “H” & “I” suit properties and after the death of Kana Majhi, the said Schedule “H” & “I” suit properties along with other properties (those had fallen in the share of Kana Majhi) had devolved upon his only daughter and only successor i.e. Bali Majhi and after the death of Bali Majhi, the said properties including the suit schedule “H” & “I” properties devolved upon the plaintiffs and accordingly, the plaintiffs are the owners and in possession over the suit Schedule “H” & “I” properties, in which, the defendant Nos.1 to 3 have no interest and possession, but, the properties described in Schedule “H” have been erroneously recorded in favour of the defendants in the last settlement R.S.A. No.170 of 2002 Page 8 of 16 and likewise, the name of the defendants have also been erroneously recorded in respect of Schedule “I” properties jointly with Bali. For which, the plaintiffs are entitled for the decree of declaration of their title over the Schedule “H” & “I” properties as well as confirmation of their possession on the same. 11. On being dissatisfied with the aforesaid Judgment and Decree dated 16.07.1999 and 30.07.1999 respectively passed in favour of the plaintiffs and against the defendant Nos.1 to 3 by the Trial Court in the suit vide T.S. No.44 of 1996, the contesting defendant No.1 challenged the same by preferring the 1st Appeal vide T.A. No.32 of 1999 being the appellant against the plaintiffs arraying them (plaintiffs) as respondents and also arraying the defendant Nos.2 to 3 as proforma respondents. After hearing from both the sides, the First Appellate Court allowed that 1st Appeal vide T.A. No.32 of 1999 filed by the defendant No.1 on contest against the plaintiffs and set aside the Judgment and Decree passed by the Trial Court in favour of the plaintiffs as per its Judgment and Decree dated 18.04.2002 and 02.05.2002 respectively and dismissed the suit vide T.S. No.44 of 1996 of the plaintiffs assigning the reasons that, the plaintiffs have not been able to adduce any rebuttal evidence to show that, the recordings of the Schedule “H” properties in the name of the defendants and the records of the Schedule “I” properties in the names of the defendants R.S.A. No.170 of 2002 Page 9 of 16 and Bali Majhi jointly in the last major settlement R.o.Rs were wrong, for which, it cannot be held that, the plaintiffs have acquired right, title and exclusive possession over the suit Schedule properties described in Schedule “H” & “I”. Therefore, the plaintiffs have failed to establish through cogent evidence that, the suit properties described in Schedule “H” & “I” properties had fallen in the share of Kana Majhi through partition in the year 1945 and after his death, his daughter Bali was possessing the same and after the death of Bali, the plaintiffs being her LRs are possessing the same. 12. On being aggrieved with the aforesaid Judgment and Decree passed on dated 18.04.2002 and 02.05.2002 respectively in T.A. No.32 of 1999 by the 1st Appellate Court in dismissing the suit of the plaintiffs, they (plaintiffs) challenged the same by preferring this 2nd Appeal being the appellants against the defendant Nos.1 to 3 arraying them (defendant Nos.1 to 3) as respondents. 13. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. Whether the learned First Appellate Court is justified in reversing the decree of the learned Trial Court, when it came to a finding that there was partition of the ancestral properties between the sons of Durga and one son of Mundura Majhi i.e. Kana? R.S.A. No.170 of 2002 Page 10 of 16 14. I have already heard from the learned counsel for the appellants (plaintiffs) only, as, none appeared from the side of the respondents (defendants) to participate in the hearing of the appeal. 15. The Trial Court had decreed the suit of the plaintiffs giving specific findings and observations that, all the ancestral properties of the parties left by Mundura Majhi had partitioned between the two branches i.e. between the branches of two sons of Mundura Majhi i.e. between the sons of Durga Majhi and one son of Mundura Majhi i.e. Kana Majhi. On the basis of such partition between them in the year, 1945, the members of the branch of Durga Majhi and Kana Majhi were possessing separately to their separately allotted properties in such partition and on the basis of that partition, the aforesaid members of two branches were the owners and in possession in respect of their allotted properties of their respective branch and in such partition, the properties described in Schedule “H” & “I” along with some others had allotted in favour of Kana Majhi, those had devolved upon his daughter Bali Majhi after the death of Kana Majhi, as Bali Majhi was the only successor of Kana Majhi, in which, defendant Nos.1 to 3 have no interest and their such partition finds support from the separate recordings of some ancestral properties separately as per Exts.5 & 6 as well as from the separate transaction made by the defendant No.1 himself through Registered Sale Deed vide Ext.9 admitting the previous partition of his all ancestral R.S.A. No.170 of 2002 Page 11 of 16 properties including the suit properties and from the separate payment of rents of suit Schedule “H” & “I” properties by the plaintiffs as per Ext.8 series. 16. The aforesaid findings and observations made by the Trial Court about the previous partition of the ancestral properties of the parties in the year 1945 have also been accepted by the First Appellate Court in its Judgment and Decree. Because, the First Appellate Court in Para No.8 of its Judgment and Decree has made the following observations accepting the findings of the Trial Court about the previous partition of the suit properties between the parties and the said observations are as follows: “Ext.4, the R.o.R. containing Ac.7.44 decimals of land in Mouza Tadikijharan have been recorded separately in the name of Bali under Khata No.73. The said separate recording of land in the name of Bali has not been challenged/disputed by the defendants including defendant No.1. The R.o.R. vide Exts.5 and 6 have also been separately recorded like Ext.4. Therefore, taking into consideration of the facts i.e. separate recording of land, separate payment of rents by the parties, separate dealing with the properties as per sale deed vide Ext.9, I must come to the conclusion that, there was partition of their all ancestral properties between the sons of Durga and Kana and the plaintiffs (who are the legal R.S.A. No.170 of 2002 Page 12 of 16 heirs of Bali) possessed the lands separately those had fallen in the share of Kana in the family partition between the sons of Durga & Kana.” 17. The aforesaid concurrent findings and observations made by the Trial Court and First Appellate Court accepting the pleadings and evidence of the plaintiffs about the partition of their all ancestral properties left by Mundura Majhi between the sons of Durga Majhi and father of Bali Majhi i.e. Kana Majhi is ultimately establishing that, there was partition of all ancestral properties of the parties between the sons of Durga and Kana in the year 1945. Durga is the ancestor of the defendant Nos.1 to 3. Kana is the ancestor of the plaintiffs. The aforesaid findings and observations made by the First Appellate Court accepting the findings and observations made by the Trial Court about the previous partition of the ancestral properties between the parties, is ultimately confirming the findings and observations made by the Trial Court in its Judgment and Decree that, in such partition in the year 1945, the properties described in Schedule “H” & “I” had fallen in the share of Kana, which has ultimately been devolved upon the plaintiffs after the death of Kana & Bali, in which, the defendant Nos.1 to 3 have no interest and as such, the possession of the plaintiffs over the Schedule “H” & “I” properties has been duly established. R.S.A. No.170 of 2002 Page 13 of 16 When the partition of all the properties left by Mundura Majhi described in Schedule “B” between the sons of Durga Majhi and Kana Majhi was accepted by the First Appellate Court in Para No.8 of its Judgment and Decree of the 1st Appeal as stated above specifically, then, as per law, the First Appellate Court should not have reversed its said own findings in the next Para i.e. in Para No.9 of its Judgment & Decree on the basis of the recordings of Hal R.o.R. of suit Schedule “H” & “I” properties in the name of the defendants exclusively as well as in the name of the defendants and Bali (ancestor of the plaintiffs) jointly. 18. It is the settled propositions of law that, once the partition between the parties is established, then, unless and until there is very cogent evidence about the reunion of the parties, it cannot be held that, the parties have reunited forgiving their previous partition. So, in absence of any cogent evidence about the reunion of the parties after their partition, it shall not be held that, there is reunion of the parties, forgiving their previous partition. When, in Para No.8 of the Judgment and Decree, the 1st Appellate Court has held about the previous partition of all the ancestral properties of the parties, and when there is no evidence in the record about their reunion, then, at this juncture, the findings of the First Appellate Court in the subsequent Para No.8 of its Judgment contradicting the findings of Para R.S.A. No.170 of 2002 Page 14 of 16 No.8 that, the Schedule “H” & “I” properties are the joint and undivided properties of the parties cannot be sustainable under law. On this aspect, the propositions of law has already been clarified in the ratio of the following decision:
Legal Reasoning
I. AIR (30) 1943 (Privy Council )106:Smt. Bhagbati Dei & Another Vs. Muralidhar Sahu—Hindu Law— Partition—Reunion—Evidence of, Must be very cogent. (P.107e,f) 19. Here in this suit/appeal at hand, when the First Appellate Court in Para No.8 of its Judgment and Decree has specifically held that, there was previous partition of all the ancestral properties of the parties, which includes the Schedule “H” & “I” properties and when there is no cogent evidence in the record on behalf of the contesting defendant No.1 to show about the reunion of the parties after their such partition, then, at this juncture, the findings and observations made by the First Appellate Court only on the basis of the Hal R.o.R. reversing the findings of the previous partition cannot be sustainable under law. For which, the First Appellate Court should not have reversed any findings of the Trial Court in favour of the plaintiffs. So, by applying the principles of law enunciated by the Privy Council in the ratio of the aforesaid decision to the above self-contradictory findings of the First Appellate Court concerning the partition of the ancestral properties between the parties in the year 1945, it cannot be held that, the R.S.A. No.170 of 2002 Page 15 of 16 Judgment and Decree passed by the 1st Appellate Court reversing the Judgment and Decree of the Trial Court is sustainable under law. For which, in other words, it is held that, the Judgment and Decree passed by the First Appellate Court is not sustainable under law. 20. Therefore, there is justification under law for making interference with the Judgment and Decree passed by the 1st Appellate Court through this 2nd Appeal filed by the appellants (plaintiffs). For which, there is merit in this 2nd appeal of the appellants (plaintiffs). The same must succeed. 21. In result, the 2nd Appeal filed by the appellants (plaintiffs) is allowed on merit, but without cost. 22. The Judgment and Decree dated 18.04.2002 & 02.05.2002 respectively passed by the First Appellate Court in T.A. No.32 of 1999 is set aside. 23. The Judgment and Decree dated 16.07.1999 & 30.07.1999 respectively passed by the Trial Court in T.S. No.44 of 1996 is confirmed. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack Signature Not Verified The 30 .09, 2024// Rati Ranjan Nayak Digitally Signed Sr.Stenographer Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 30-Sep-2024 16:01:33 R.S.A. No.170 of 2002 Page 16 of 16