The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.310 of 2009 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908 from the judgment and decree dated 15.07.2009 and 04.08.2009 respectively passed by the learned District Judge, Bhadrak in R.F.A. No.57 of 2007 reversing the judgment and decree dated 09.07.2007 and 23.07.2007 respectively passed by learned Civil Judge (Sr. Division), Bhadrak] AFR Sk. Sabakttulah and others …. Appellants -Versus- Sk. Attaulla & Others …. Respondents Advocate(s) appeared in this case: For Appellants : Mr. P.K. Rath, Sr. Advocate with M/s. S Rath, A. Behera, S.K. Behera, S. Das, P.K. Satpathy, R.N. Parija, A.K. Rout, S.K. Pattnaik, S.P. Naik & D.P. Pattnaik. Advocates For Respondents : Mr. D.K. Mohapatra, Advocate [For 2(k) to 2(una) Mr. Ramakanta Mohanty, Sr. Advocate M/s. Debakanta Mohanty, Sumitra Mohanty, Sangita Mohanty, A. Mohanty, D. Varadwaj, T.R. Mohanty, J. Khilar, Advocates. [ For R-1(a) to R-1(j)] M/s. S.K. Nayak-2, K. Jena, S.S.K. Nayak, Advocates Page 1 of 19 [For R-19(a) to 19(h), R-18(a), 18(b), 18(c), 18(d), 18(g) to 18 (i)] M/s. K. Behera, P.Swain, Advocates [For R-13 to 15] M/s. Subham Sharma, I. Tripathy, Advocates, [For r-15(a) to 5(c), R. 20(a) to 20(k)] CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 29th July, 2025 SASHIKANTA MISHRA, J. This is a plaintiffs’ appeal against a reversing judgment. The suit filed by the plaintiffs for partition was decreed by the trial Court but was reversed in appeal. 2. For convenience, the parties are referred to as per their respective status before the Trial Court. 3. Before adverting to the case of the parties it would be proper to refer the following genealogy showing the
Legal Reasoning
relationship of the parties. Page 2 of 19 Sk. Habibulla Sk. Khuda Box Inayat Khalil Pachu @ Ibrahim Alarakhi Lejua Bibi Bibi Hossain Md. Sk. Chunoo Didar Darastulla Hanifa Kalsoon =Kariman Bibi (D-10) Sk. Ataulla (D-1) Rahemtulla Gafur Kariman Khatun Futi Haboon (P-1) (P-2) Allauddin Abdul Md. Alli Arsad Ali Hanifa Fato Bibi Suru Bibi Sujan Bibi (D-11) (D-12) (D-13) (D-14) (D-15) (D-17) (D-18) (D-16) 4. Original plaintiffs, defendant No.1 and defendant Nos. 10 to 18 are the successors of Sk. Habibulla, the common ancestor. Sk. Habibulla died leaving behind four sons and two daughters as indicated in the above table. Khalil died unmarried, while the daughters- Alarakhi and Lejua died issueless. Khuda Bux died leaving behind his two sons, Hossain Mohammed and Sk. Chunoo. Hossain died issueless, while Sk. Chunoo was succeeded by his eight children- four sons (defendant Nos. 11 to 14) and four daughters (defendant Nos. 15 to 18). On the other hand, Page 3 of 19 Inayat died leaving behind four children- two sons and two daughters. His son -Didar died issueless leaving behind his widow-Kariman. His second son- Darastulla was succeeded by his son Sk. Ataulla (defendant No.1). His daughter Hanifa died issueless. His other daughter- Kalsoon Bibi is defendant No.10. Pachu died leaving behind six children- two sons and four daughters. Rahemtulla, as already stated, is his elder son and plaintiff No.1. Gafur is his second son and plaintiff No.2. His daughters are Kariman Bibi, Khatun Bibi, Futi Bibi and Haboon Bibi. 4.2 One Kabul Khan being the maternal uncle of Hanifa (daughter of Inayat) was looking after her affairs and taking advantage of her simplicity, he obtained a sale deed from her in his favour on 03.06.1948. Subsequently, he filed a suit (T.S. No. 61 of 1951) claiming partition of his purchased property. Hanifa was not a party to the suit. In the said suit, Sk. Ataulla and Kariman (wife of Didar) were parties. The suit ended in a compromise, whereby, Kabul Khan got half share as per the sale deed dated 03.06.1948, Page 4 of 19 while Ataulla and Kariman each got 1/4th share. After coming to know about the sale deed dated 03.06.1948 obtained by Kabul Khan, Hanifa filed a suit being Q.S. No. 101 of 1958 for its cancellation. Said suit was decreed and thereby, her share of the property came to her possession. While the matter stood thus, on 16.01.1963, Hanifa orally gifted her share in favour of Sk. Rahemtulla and Sk. Gafur, the original plaintiffs and delivered possession. 4.3. Further, in the MS ROR in Lot No. 1, 4 and 6 in ‘Kha’ Schedule, the properties were wrongly recorded in the names of Didar and Ataulla, even though only Lot No.2 belongs to Didar. The plaintiffs thus, filed the suit claiming shares of Hanifa and Kariman apart from their 2/3rd shares. Defendant No.1 contested the suit by filing written statement claiming the plaintiffs had no share in suit property. Maintainability of the suit was questioned on the ground of complete partition effected in O.S. No. 24/43, in which the original plaintiffs, Rahemtulla and Gafur were defendant Nos. 1 and 2. The suit was decreed, whereby Rahemtulla and Gafur got Ac.13.21 dec. 5 kadis towards their share, out of Page 5 of 19 which they sold some property to others leaving a balance of Ac.11.15 dec. but the Civil Court Commissioner made separate allotments by virtue of the Final Decree passed in the said suit and the respective allottees were put in possession accordingly. Hanifa being the exclusive owner of the suit property was defendant No. 9(a) in the said suit being substituted after death of her brother, Didar. 4.4. Another suit being O.S. No. 146 of 1988 was filed by Gafur (plaintiff No.2) for partition against Rahemtulla (plaintiff No.1), which was compromised. According to defendant No1, the plaintiffs cannot claim partition of Hanifa’s property because the same was gifted to defendant No.1. On the contrary, Kalsoon Bibi, sister of Hanifa executed a ‘Nadabi patra’ in favour of defendant No.1 on 19.02.1979 admitting the oral gift by Hanifa to the extent of Ac.5.48 dec. 7 kadis which was recorded in MS ROR in the year 1984. Out of the suit properties an area of Ac.3.23 dec. was under intermediary interest but was settled in the name of defendant No.1, who is in possession by paying rent and Page 6 of 19 Municipality tax etc. According to defendant No.1, the plaintiffs are estopped from claiming partition in view off the previous complete partition as per T.S. No. 24/43-I. 4.5. Defendant No.3 also contested the suit by filing a written statement supporting the case of defendant No.1 by pleading that defendant No.1 was the owner in possession of the suit property to the extent of Ac.2.25 dec. as per ROR duly published in his name. He executed a registered sale deed on 13.11.1990 in favour of defendant No.3 upon receipt of due consideration. The property has since been mutated in the name of defendant No.3. 4.6. Defendant Nos. 11 to 18 also contested the suit by filing written statement jointly raising the plea of non- joinder of the L.Rs. of Kariman Bibi, Futi Bibi, Haboon Bibi and Sk. Dhanna, who are necessary parties. The suit was also challenged on the ground of res-judicata and estoppel referring to the decree of partition in O.S. No. 24/43. It is their further case that Ibrahim @ Pachu did not inherit the property of Khuda Box and sons of Khuda Box did not expire during his lifetime. Page 7 of 19 5. Basing on the rival pleadings, the trial Court has framed the following issues for determination. “1. Whether the suit maintainable? in the present form is 2. Whether the suit is hit under the principles of estoppels and res judicata? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether there is any unite of title and unit of possession among the parties for the suit lands? 5. Whether the gift (Heba) in the year 1963 by in favour of the plaintiffs is valid Hanifa Bibi and genuine? 6. What are the shares of the parties?” 6. After referring to the oral and documentary evidence extensively, the trial Court basically found that the oral gift of Hanifa in favour of the original plaintiffs was acted upon and is valid. The suit lands have been allotted in favour of defendant No.9. Further, the shares of Ataulla, Hanifa and Kariman having already decided in the earlier suit (T.S. No. 61 of 1951), Ataulla is estopped from claiming the entire properties of Didar. The trial Court also held that the suit properties belong to Ataulla and successors of Rehemtulla and Gafur. On such findings, the suit was decreed by allotting 3/4th share to the plaintiffs and 1/4th in favour of Page 8 of 19 defendant No.1 with further direction to adjust the shares of the respective vendors among their vendees. 7. Being aggrieved, defendant no.1 carried the matter in appeal. After re-appreciating the evidence on record, the First Appellate Court held that the Final Decree passed in T.S. No. 24 of 1943-I is valid and binding on the parties. As such, Hanifa being the sister of Didar has right over half share as per the said decree. It was further held that the plaintiffs have no locus standi to bring the suit for partition. As regards the oral gift, it was held that the plaintiffs failed to prove the ingredients of Hiba. Finally, it was held that the suit property, being the exclusive property of Hanifa cannot be partitioned in the suit. 8. Being aggrieved, the LRs of the plaintiffs have filed the present second appeal, which was admitted on the following substantial questions of law. “(i) Whether the learned lower appellate Court has committed an error of law in reversing the judgment and decree passed by the learned trial Court by applying the principle of estoppel against the plaintiff basing upon the allotment sheet of the earlier suit i.e., T.S. No. 24/1943-I? Page 9 of 19 (ii) Whether the learned lower appellate Court has committed an error in reversing the decree of the trial Court by holding that the plaintiffs are estopped from challenging the allotment made in favour of the defendant No.9(a) in the previous suit when the plaintiffs were not parties to the said suit? 9.
Legal Reasoning
Heard Mr. P.K. Rath, learned Senior counsel with Ms. S. Das for the plaintiff-appellants and Mr. R.K. Mohanty, learned Senior Counsel with Ms. S. Mohanty for the defendant-respondents. 10. Mr. Rath, learned Senior Counsel assails the judgment of the first appellate Court by submitting that the Final Decree in T.S. No. 24/43-I runs contrary to the preliminary decree passed in the suit, inasmuch as the share of Didar in the earlier suit was kept out of the purview of partition and the suit was decreed by compromise. So the allotment sheet in the Final Decree proceeding allotting share in favour of defendant No.9(a) is an outcome of tampering of the allotment sheet which the trial Court had rightly observed. Mr. Rath further argues that the earlier suit (T.S. No. 24/43-I) was disposed of on compromise but the compromise petition was never signed by Hanifa after being Page 10 of 19 substituted in place of her brother, Didar. Said compromise is therefore, not binding on Hanifa being void ab initio. Mr. Rath further argues that the observation of the First Appellate Court that the allegation of tampering being an act of fraud having not been pleaded specifically the plaintiffs are not permitted to challenge the Final Decree on such ground, is untenable for the reason that if a document is found to have been tampered with, it is void ab initio and need not be specifically challenged in a formal proceeding. The trial court had tested its finding on partition by comparison of the allotment sheet with original, which the First Appellate Court did not. 11. Per contra, learned Senior Counsel Mr. Mohanty would argue that the contentions raised with regard to Final Decree is redundant in view of the actual dispute between the parties. The judgment in T.S. No. 24/43-I clearly reveals that in so far as Issue No. 24 and 25 is concerned, the Court had categorically held that the property of Didar should be excluded from partition. The present suit property being the original property of Didar, the plaintiffs cannot claim any title Page 11 of 19 because such property has to devolve upon the rest of the surviving co-sharers (the appellants and defendant No.10). The plaintiffs, being members of Pachu @ Ibrahim branch, cannot claim any right thereon. The property has to therefore devolve within the branch of Inayat on to the surviving heirs of Didar. Mr. Mohanty further argues that though the plaintiffs’ own case is that after retrieving the property fraudulently taken away by Kabul Khan, Hanifa gifted the property to them by way of an oral Hiba in 1963. This implies, the plaintiffs admit the antecedent title of Hanifa to the suit property. So, their claim of Hanifa getting the suit property as per T.S. No. 24/43-I in the Final Decree is entirely untenable. 12. As regards oral gift, Mr. Mohanty would argue that as per Article 150 of Mulla’s Mohammedan Law, three ingredients are necessary to prove a valid gift, namely:- (a) a declaration of gift by the Donor, (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession. The first appellate Court, after Page 12 of 19 scanning the evidence found that the plaintiffs failed to prove these ingredients. This being a question of fact, cannot be gone into in the present second appeal. On the other hand, the oral gift dated 17.01.1963 is supported by clear evidence on record. The ‘Nadabi patra’ executed by Hanifa, sister of Kalsoon on 19.02.1979 also admits the aforementioned oral gift, which was recorded in the name of defendant No.1 since 1984 and has not been challenged since then. In the earlier suit, property allotted in favour of Hanifa is the suit property, which is said to be partitioned for which, the plaintiffs are estopped to claim as the Final Decree operates as resjudicata. The plaintiffs have never challenged the decree in T.S. No. 24/43. Further, as found by the First Appelalte Court, they have never pleaded or proved commission of fraud. The contention regarding so called manipulation in the allotment sheet is also misconceived in view of the fact that Hanifa was substituted as defendant No.9 (a) after death of Didar. Mr. Mohanty also argues that the plaintiffs have also admitted to have been allotted with some properties in the aforementioned suit. The plaintiffs having acquiesced to the Page 13 of 19 previous partition by selling some of such allotted properties as per the Final Decree, cannot seek to readjudicate any claim of share beyond the shares allotted to them in T.S. No. 24/194-I. 13. From the rival contentions noted above, it is evident that the plaintiffs claim to have acquired the property of Didar which his sister Hanifa had bestowed through an oral Hiba. In this context, it has been vehemently argued by learned Senior Counsel appearing for the plaintiff-appellants that reliance placed by the First Appellate Court on the Final Decree (Ext.A) while rejecting the claim of the plaintiffs is untenable for the reason that said Final Decree runs contrary to the preliminary decree of the suit. Reading of the judgment passed by the First Appellate Court reveals that the same was also raised before the Court prompting it to refer to the Final Decree wherein Hanifa Bibi was substituted in place of her brother Didar as defendant No.9(a) and was allotted with property. The First Appellate Court observed that the decree was passed 65 years back and had never Page 14 of 19 been challenged in any Court of law. So the allegation of tampering with the allotment sheet of the Final Decree by practicing fraud cannot be entertained at such a belated stage, more so as the plaintiffs have never pleaded so in their plaint. Thus, invoking the law of estoppel as per Section 115 of the Evidence Act, the First Appellate Court refused to accept the contention raised regarding manipulation/tampering of the allotment sheet in the Final Decree. Further, the First Appellate Court, referring to the Final Decree passed in the subsequent suit i.e. O.S. No 144/88 and copy of the plaint filed in the said suit, found that the plaintiffs were fully conscious of the said suit, which was compromised. No question was raised as regards allotment to Hanifa, which implies that they had accepted the Final Decree in the earlier suit i.e. O.S. No. 24/43. That apart, the First Appellate Court also took note of the fact that defendant No.1 had filed certified copy of the Final Decree in T.S. No. 24/43, marked Ext.A which he had received on 08.05.1979, whereas the certified copy of the same Final Decree was also filed by the plaintiffs as Ext.8. The First Page 15 of 19 Appellate Court also specifically noted that Ext.8 had been obtained 28 years before Ext.8 and contains the name of Hanifa as defendant No.9(a). Therefore, it was held that there is no question of any interpolation of the name of Hanifa as defendant No.9(a) in the Final Decree. Having gone through the reasoning adopted by the First Appellate Court noted above, this Court finds no reason to differ from the same. Moreover, despite claiming that the allotment sheet of the Final Decree was tampered, the plaintiffs have not come forward to indicate much less prove as to who had caused the interpolation, if at all. In any case, as rightly held by the First Appellate Court, Hanifa being the sister of Didar validly succeeded to his half share of the suit property as per the Final Decree. 14. As regards the compromise decree in the subsequent suit i.e., O.S. No. 146/1988, it has been forcefully argued by learned Senior Counsel for the plaintiffs that the so called compromise has no sanction of law for the reason that she not having signed in the petition, the Page 16 of 19 compromise cannot be used against her. Learned Senior Counsel has referred to the following judgments in support of his contention. Sanyasi Jena & Ors. vs. Mina Jena & Ors.1 and Gupreet Singh vs. Chatur Bhuj Goel2 15. There is no quarrel with the proposition of law in the cited judgments, but on facts, this Court finds that Hanifa during her lifetime never came forward to challenge the compromise decree on the ground of not being a party to it. On the contrary, the plaintiffs themselves claim to have been bestowed with the property by way of gift by Hanifa from her allotted share. This appears to be a contradictory stand taken by the plaintiffs, which obviously cannot be accepted. 16. In the case of Sanyasi Jena (supra) it was held that a compromise of partition suit would be ineffectual unless all the necessary parties to the action having interest in the property and likely to be prejudicially affected by the compromise join in it. Same has also been decided in 1 AIR 1983- ORI- 213 2 (1988 ) 1 SCC 270 Page 17 of 19 Gupreet Singh (supra). According to the plaintiffs, Hanifa was prejudicially affected by the compromise but then it is for the Hanifa to come forward and say so, which she has not. So, if Haifa herself does not come forward and claim prejudice, the plaintiffs cannot say so purportedly on her behalf. 17. It was further urged that the finding of the First Appellate Court that the ingredients necessary to constitute a valid gift under the Mohemmedan Law are absent is factually erroneous. Reading of the impugned judgment reveals that the First Appellate Court has scanned the evidence meticulously particularly that of one of the substituted plaintiffs, Sk. Sabaktulla, P.W.-1, who admitted to have no direct knowledge about the oral gift. The donor and the donee being dead, the plaintiffs could not demonstrate through evidence the factum of delivery of possession of the property of Hanifa on the strength of the so called gift. This being essentially a question of fact and there being nothing brought Page 18 of 19 on record to show as to how such finding, based on evidence, is wrong, this Court finds no reason to interfere therewith. 18. In the above factual premises, the First Appellate Court reversed the judgment and decree of the trial Court by holding that the suit property belongs to Hanifa exclusively and the so called gift of said property to the plaintiff was not established. 19. Thus, from a conspectus of the analysis of facts, law, contentions raised and the discussion made, this Court finds no reason to interfere with the impugned judgment. The substantial questions of law framed are answered accordingly. 20. In the result, the appeal fails and is therefore, dismissed but in the circumstances without any cost. ………….…………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 29th July, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Jul-2025 11:08:47 Page 19 of 19