The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RFA Nos.187 & 212 OF 2007 RFA No.187 of 2007 An appeal under Section 96 of Civil Procedure Code. Babaji @ Baju Das & Ors. :::: Appellants -:: VERSUS ::- Gayadhar Das & Ors. :::: Respondents For Appellant :::: Mr. A.K. Mohanty, Advocate For Respondent :::: Ms. S. Das, Advocate on behalf of Mr. P.K. Rath, Sr. Advocate ……… PRESENT: THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ---------------------------------------------------------------------------------------- Date of Hearing- 21.02.2025 :: Date of Judgment- 21.02.2025 ---------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard learned counsel appearing for the Parties. 3. Since both the appeals arise out of a common judgment passed by the learned Addl. District Judge (Fast Track Court-II) Bhadrak in Page 1 of 11 // 2 // T.S. No. 176/2002-I, both the appeals were heard analogously and disposed of by the present common order. 4. While RFA No. 187/2007 has been filed by the Plaintiffs challenging dismissal of the suit so filed by them seeking partition of the suit schedule property, RFA No. 212/2007 has been filed by the Defendants of the suit challenging the dismissal of their counter claim so raised in the written statement.
Facts
5. It is contended that Plaintiffs/Appellants in RFA No. 187/2007 filed T.S. No. 176/2002 seeking partition of the suit schedule property. The stand of the Plaintiffs/Appellants in the suit reads as follows:- “2. The case of the plaintiff is that as per the genealogy given in 'Ka' schedule of the plaint, Bhikari is the common ancestor of the plaintiffs and defendant Nos. 1 to 6. Bhikari diea leaving his 4 sons namely, Marahari, Maguni, Agani and Mayadhar Narahari also died issueless. Maguni died before the Major Settlement leaving defendant Nos. 2 and 3 as legal heirs. Chhachi is the wife of Agani who has died after the Major Settlement leaving defendant No. 1, Plaintiff No.1 and Kambhu, the father of plaintiff Nos.5 and 6.ambhu has also died leaving his wife, plaintiff No.7 and sons, plaintiff Nos.5 and 6 and daughters, defendant Nos. 5 and 6. Rukmani is the wife of Mayadhar. After the the Major Settlement, Mayadhar died leaving behind him, his daughter, defendant No.4. The land mentioned in 'Kha' schedule of the plaint for which partition has been sought, has been recorded in the names of defendant Nos.1,2,3, plaintiff No. 1, the father of plaintiff Nos.5 and 6 and Mayadhar, the father of defendant No.4 in the Major Settlement. The said land is the ancestral property of the plaintiffs and defendant Nos. 1 to 6 which includes homestead and cultivable Page 2 of 11 // 3 // land. Defendant No.4 has sold away the 'Ga' schedule land of the plaintiff in favour of Plaintiff Nos. 2 to 6 on 1.5.2001 by virtue of a sale deed out of her 1/3rd share in the 'Kha' schedule land after the death of Mayadhar. Since the date of purchase, plaintiff Nos. 2 to 6 are the owner in possession of the said 'Ga‟ schedule land. 'Kha' schedule land has not been partitioned among the co-sharers by metes and bounds. Out of 'Kha' schedule land, though the land mentioned in Khata No.863 measuring an area of A0.15 decimals has been recorded as „Sarad Kisam' in the R.O.R. Actually it is being used by the plaintiff and defendant Nos. 1 to 6 as homestead. On the said land, there are 14 shop rooms out of which 2 are pucca
Legal Reasoning
decision of this Court reported in AIR 1990 Orissa 29. This Court in Para 8 of the said Judgment has held as follows:- Page 7 of 11 // 8 // “8. In the ultimate analysis and in dis-agreement with the learned courts below, I hold that the presumption of jointness of a Hindu Mitakshara family to which the parties belong was not rebutted by evidence of a prior partition by metes and bounds by the respondents. Although the parties were living separately in mess and cultivation yet that was for convenience and to avoid family disputes. There has not so far been a partition by metes and bounds of the suit lands. The plaintiff is, therefore, entitled to a preliminary decree for partition of the suit lands in respect of his 1 3rd share therein.” 7.3. Reliance was also placed to a decision reported in (2007) 4 SCC 163. Hon’ble Apex Court in Para 17 of the said Judgment has held as follows:- “17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other facts are required to be considered therefor.” 8. Ms. S. Das, learned counsel appearing on behalf of Mr. P.K. Rath, learned Sr. Counsel in RFA No. 212 of 2007 while supporting the Judgment so far as it relates to dismissal of the suit of the plaintiff filed for partition of the suit property, contended that while dismissing the suit for partition, counter claim raised by the original Defendant Nos. 2 & 3 should have been allowed, as land measuring Ac.0.15 dec. under Khata No. 665 vide ‘Ga’ schedule of the written statement had fallen to the share of Maguni, the father of Defendant Nos. 2 and 3. In terms of the said partition, not only Maguni but also Page 8 of 11 // 9 // Defendant Nos. 2 & 3 have developed the land by filling earth and have constructed some shop rooms. Therefore, while rejecting the claim for partition, counter claim should have been allowed. 8.1. It is also contended that since the suit schedule property has been transferred by respective co-sharers, which includes the Plaintiff and Defendants, without any objection from the other co- sharers, the presumption arrived by the learned trial court that there is prior partition of the suit property cannot be found fault with. 8.2. It is also contended that transfer made by the co-sharers, more particularly by the Defendants from out of the suit property, was never assailed or challenged by the Plaintiffs at any point of time. Therefore, it is to be held that such transfer of the suit land has been made by the Defendants taking into account the share allotted in their favour as per the previous partition. 8.3. Since transfer of the suit land made by the Defendants was never challenged by the Plaintiffs, the presumption drawn by the learned trial Court that taking into account earlier partition, co- sharers are in a position to transfer the land cannot be found fault with. It is accordingly contended that while dismissing the appeal filed by the Plaintiffs in RFA No. 187/2007, the counter claim made by the Defendants so rejected vide the impugned common judgment and assailed before this Court in RFA No. 212/2007 be allowed. 9. Having heard learned counsel appearing for the Appellants in both the appeals and after going through the materials placed in record, this Court finds that the suit in question was filed by the Appellants in RFA No. 187/2007 seeking partition of the suit Page 9 of 11 // 10 // schedule property. It is found that by the time the suit was filed seeking partition of the suit property, the suit land stands recorded jointly in the names of the Plaintiffs and Defendants. 9.1. In the written statement filed by the Appellants in RFA No. 212/2007, though a stand was taken that there is an earlier partition and thereby enabling the co-sharers to transfer their share of land at different point of time and accordingly a counter claim was filed to declare right title interest in respect of Khata No. 659 to an extent of Ac.0.15 decimals under ‘Ga’ schedule of the written statement, but this Court nowhere finds any document having been produced and exhibited by the Defendants showing any earlier partition having been taken place in between the parties as per metes and bounds. 9.2. In absence of any such documentary evidence being produced by the Defendants and placing reliance on the decisions as cited (supra), the presumption drawn by the learned trial court that there is an earlier partition and the co-sharers in terms of the said partition are in a position to transfer their share of land is not acceptable to this Court. Not only that since the suit land by the time the suit was filed, stands recorded jointly with no determination of any share, this Court is of the view that the presumption drawn by the learned trial court regarding earlier partition is not sustainable in the eye of law. 9.3. In view of the aforesaid analysis, this Court is inclined to quash the impugned judgment and decree dt.25.04.2007, so passed in T.S. No. 176 of 2002(I), so far as it relates to rejection of the prayer of the Plaintiffs/Appellants in RFA No. 187/2007 for partition of the suit property. Since this Court is inclined to interfere with the Page 10 of 11 // 11 // dismissal of the suit for partition, in view of such finding, this Court is not inclined to interfere with the rejection of the counter claim, which is the subject matter in RFA No. 212/2007. While quashing the impugned judgment dtd.25.04.2007 in T.S. No. 176/2002-I so far as it relates to rejection of the claim of the Plaintiffs/Appellants seeking partition of the suit property, this Court is not inclined to interfere with the rejection of the counter claim, which is the subject matter of challenge in RFA No. 212/2007. While quashing the judgment so far as it relates to rejection of the claim for partition, this Court remits the matter to the trial court for disposal of the suit in accordance with law and by giving due opportunity of hearing to all concerned. Since the suit is of the year 2002, this Court directs the learned trial court to make all endeavour and dispose of the suit as expeditiously as possible preferably by the end of this year, if there is no other legal impediment.
Arguments
rooms. Those shop rooms have been constructed by their ancestor. The said land mentioned in Khata No.863 is situated in Daulatpur mouza adjacent to Bhadrak-Chandabali road. Out of 14 shop rooms, the plaintiffs are possessing one pucca shop room and 8 nos. of thatched shop rooms as per their share and purchase. The ROR with regard to 'Kha' schedule land has prepared jointly in the names of the plaintiff and defendant Nos. 1 to 6, but they are possessing their respective shares by mutual agreement. But, out of the said land, defendant Nos.7 to 12 are demanding lands after purchasing from the co-sharers by virtue of registered sale deeds for which the co-sharers are facing difficulties. They are also facing difficulties in paying rent On 25.4.2002, the plaintiff requested defendant No.1 for partition of the 'Kha' schedule land to which he refused and again on 27.4.2002, defendant Nos. 1 to 3 and their supporters assaulted some of the plaintiffs for which a instituted against them. The shop-rooms land of Khata No. 863 has been given on rent to different criminal case has been persons. The plaintiffs have also given the shop-rooms on situated over the rent which are in their possession. The plaintiffs have also requested defendant Nos. 1 to 3 for partition of the shop rooms to which they did not agree and became angry and on 27.4.2002 tried to damage Page 3 of 11 // 4 // the shop rooms under the possession of the plaintiffs. Defendant Nos. 1 to 3 have also assaulted the plaintiff and threatened the shop-owners not to pay rent to the plaintiffs. Therefore, the plaintiffs have filed this suit for partition of the 'Kha' schedule land. Defendant Nos. 1 to 3 have 1/3rd share, defendant Nos4 has 1/3rd share and the plaintiffs and defendant Nos.5 and 6 combinedly have 2/9th share and defendant No.1 has 1/9th share. The purchased land of plaintiff Nos.2 to 6 from defendant No.4 can be adjusted from her share. Defendant Nos. 7 to 12 who are claiming to be the purchasers out of 'Kha' schedule land, have been made parties in this suit. The cause of action of this suit arose on 25.4.2002 and 27.4.2002 on which dates, defendants refused the plaintiffs for partition of the land and threatened and assaulted the plaintiff in connection with possession of the shop-rooms. Hence, the plaintiffs have filed this suit for partition and for permanent injunction and other reliefs.” 6. Similarly, Defendant Nos. 1 to 3/Appellants in RFA No. 212/2007 while disputing the pleadings made in the plaint and filing the written statement, raised a counter claim seeking declaration of right title interest in respect of land measuring Ac. 0.15 decimals under Khata No. 659, more fully described in ‘Ga’ schedule of the written statement. Stand of the Defendants/Appellants in RFA No. 187 of 2007 reads as follows:- “3. Defendant Nos. 1 to 3 contested the suit of the plaintiffs by filing their joint Written statement. In their W.S., these plaint averments and defendants have denied most of the contended that in the Sabik Settlement, 'Kha' schedule land of the plaint has been recorded jointly in the names of Agani, Maguni and Mayadhar. After Sabik Settlement, Maguni Agani and Mayadhar were living in separate mess mutually. But as difficulty arose in possession of their respective shares, in the Page 4 of 11 // 5 // year, 1961, they partitioned the lands by metes and bounds and possessed their respective shares. Admitting the said partition, Mayadhar has sold away his entire shares situated in Malpur Mouza to different persons and defendant No.2 by virtue of registered sale deeds and gave delivery of possession. The description of the sale dx deeds has been given in 'Gha' schedule of the Written Statement Similarly, admitting the partition and share of Agani, his son, plaintiff No.1 and Kambhu Das, the husband of plaintiff No.2 and father of plaintiff Nos.5 and 6 has Sold away some lands situated in Daulatpur mouza to defendant No.2 and other outsiders by virtue of registered sale deeds. The description of the said lands has been given in the 'Una' schedule land of the Written Statement. As per partition, the father of defendant Nos. 2 and 3 had got Ac. 15 decimals of land mentioned in Khata No.659 of mouza-Daulatpur in the Sabik Settlement which is situated by the side of Bhadrak- Chandabali road. At a little distance of the said land, A0.43 decimals of land mentioned in Sabik Khatha No. 709 situates out of which Mayadhar and the sons of and wife of Agani, on 26.3.1971 by virtue of two registered sale deeds sold away Ac 21 ½ Dc. Each to Surendra Mishra and Sankhali Mishra and others and gave delivery of possession. Sabik Khata No.709 has been recorded in the Major Settlement as Khata No. 1125 and 1125/1448 and in the remarks column of the R.O.R. sale of the land has been mentioned. Sabik Khata No.659 has been recorded in the M.S. as 863 Khata measuring A0.15 decimals. After the partition, Maguni alone was possession the lands under Sabik Khata No.659 and after him, defendant Nos. 2 and 3 are possessing the same. On some portion of the said land defendant No.2 has constructed 8 nos. of thatched rooms, 2 nos. of open-thatched rooms and 2 nos. of pucca rooms with one common roof. Out of the same, keeping 2 thatched rooms and one pucca room for his own business purpose, the rest has been Page 5 of 11 // 6 // rented out to different persons. All the rented houses have been connected with electricity. To the southern side of the said rooms, there is government road-side land which has been leased out in favour of defendant No.2 by the Government as per order of the Tahasildar, Tihidi. The land under khata no.863 cannot be partitioned as the plaintiffs, defendant No.1 and defendant: Nos.4 to 12 have no right over the same. The road- side lands which Agani and Mayadhar had got after the partition, has been sold away by My Mayadhar and heirs of Agani. Though the land has been partitioned by metes and bounds among the co-sharers, due to non-availability of paper with regard to the partition, in the Major Settlement, the land has been recorded as joint wrongly. Taking advantage of the said wrong recording of the R.O.R. the plaintiffs have filed this suit Out of grudge, the plaintiffs have assaulted defendant. No.2 and his son for which a G.R. case bearing No.412 of 2002 is pending against them. Similarly, the plaintiff Nos.1, 4 and 5 have set fire to the thatched shop rooms/defendant No.2 situated over On case No.30/2003 is also pending against them. Mayadhar has the land of khata no. 363 on 27.2.2003.For that Tihidi P.S. sold away A0.08 decimals of land to defendant No.2 on 13.3.74 and has given delivery of possession which he had has sold away lands of Sabik khata no.600 to Manmohan Mishra while ch Maguni had got in the partition Manmohan Mishra has sold away the said land to defendant No.2 on 3.5.72 and has given delivery of possession. As Mayadhar was issueless, his share of Malpur mouza has been partitioned equally between two branches and as such they are possessing the same. The rest land in Malpur mouza has been possessed by the branches of Agani. Their further case is that Mayadhar is not the father of defendant No.4. Mayadhar has no daughter, namely, Basanti Mayadhar and his wife Rukmani died issueless. Page 6 of 11 // 7 // 4. As per the counter claim, the case of the defendant Nos. 1 to 3 is that A0.15 decimals of land of khata No.659 described in „Ga' schedule of the W.S. had fallen to the share of Maguni, the father of defendant Nos.2 and 3 in the partition. After the partition, Maguni and after him defendant Nos. 2 and 3 have developed the land a lot by Filling earth and have constructed some shop rooms Therefore, they have claimed their right, title and interest over the same.” 7. Learned counsel appearing for the Appellants in RFA No. 187/2007 contended that though ROR of the suit schedule properly stands recorded jointly by the time the suit for partition was filed, but the trial court on the presumption that the suit schedule property having been alienated by the co-sharers at different point of time, it is to be presumed that there is prior partition amongst the co-sharers. 7.1. Basing on such presumption that there is an earlier partition of the suit schedule property enabling the co-sharers to transfer the suit land at different point of time, claim of the Appellants/Plaintiffs for partition of the suit schedule property as per meets and bounds was rejected vide the impugned judgment and decree dtd.25.04.2007. It is contended that since no document whatsoever was produced by the Defendants of the suit showing any earlier partition, only on the ground that some land has been transferred by the co-sharers and accordingly drawing a presumption that there is earlier partition of the suit schedule property is not sustainable in the eye of law. 7.2. In support of his aforesaid submission learned counsel appearing for the Appellants in RFA No. 187 of 2007 relied on a
Decision
10. Both the appeals are accordingly disposed of. Photo copy of the order be placed in the connected case record. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack The 21st February, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Mar-2025 17:05:58 Page 11 of 11