Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.117 of 1994 In the matter of an appeal under Section 100 C.P.C, 1908. *** Bata Krishna Mohanty … Appellant. -VERSUS- Pitambar Mohanty & Others … Respondents. Counsel appeared for the parties: For the Appellant : Mr. S.P. Mishra, Senior Advocate assisted by Ms. M. Mishra, Advocate For the Respondents : None. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Dates of Hearing : 14.08.2024 :: Date of Judgment : 06.09.2024 ANANDA CHANDRA BEHERA, J.— JUDGMENT 1. This 2nd Appeal has been preferred against the confirming Judgment. S.A. No.117 of 1994 Page 1 of 14 2. The appellant in this 2nd Appeal was the plaintiff before the Trial Court in the suit vide T.S. No.131 of 1981 and appellant before the First Appellate Court in the 1st appeal vide T.A. No.33 of 1984.
Legal Reasoning
The respondents in this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.131 of 1981 and respondents before the First Appellate Court in the 1st Appeal vide T.A. No.33 of 1984. The suit of the plaintiff (appellant in this 2nd Appeal) vide T.S. No.131 of 1981 before the Trial Court against the defendants (respondents in this 2nd Appeal) was a suit for partition simpliciter. 3. The suit properties are Ac.0.46 Decimals of Sabik Plot No.2375 under Sabik Khata No.473 in Mouza-Sipura under Mahanga Police Station in the district of Cuttack, which corresponds to Hal plot No.2770 under Hal Khata No.365. According to the plaintiff, they (parties) are Hindus and guided and governed by Mitakshara School of Hindu of Law. Their common ancestor was Bidyadhar Mohanty. The said Bidyadhar Mohanty died leaving behind his two sons i.e. Suratha Mohanty & Gadadhara Mohanty. Suratha Mohanty died leaving behind his only son Gajendra Mohanty. Gajendra Mohanty died leaving behind his only son Bata Krishna Mohanty (plaintiff). S.A. No.117 of 1994 Page 2 of 14 The 2nd son of Bidyadhar Mohanty i.e. Gadadhara Mohanty died leaving behind his two sons i.e. Rajiba Mohanty & Sadhu Charan Mohanty. Rajiba Mohanty died issueless. Sadhu Charan Mohanty died leaving behind his two sons i.e. Krishna & Balakrishna. Krishna died issueless. Balakrishna died leaving behind his widow wife Nabi Bewa, two sons and two daughters i.e. Pitambar Mohanty (defendant No.1), Dibakar Mohanty (defendant No.2), Gokhani Dei (defendant No.9) and Charu Dei (defendant No.10). The aforesaid family pedigree of the plaintiff and defendant Nos.1, 2, 9 & 10 is depicted hereunder for an instant reference: GENEALOGY Bidyadhar Mohanty Suratha Gadadhar Gajendra Rajiba Sadhu Batakrishna (plaintiff) Krishna Balakrishna Nabi Bewa (wife) Pitambara Dibakar Gokhani Charu (d-9) (d-10) (d-1) (d-2) 4. The suit Sabik Khata No.473 was recorded jointly in the names of Suratha Mohanty son of Bidyadhar Mohanty eight Anna share and Rajiba S.A. No.117 of 1994 Page 3 of 14 Mohanty S/o Gadadhara Mohanty, Krushna Mohanty & Balakrishna Mohanty sons of Sadhu Charan Mohanty eight Anna share. When Rajiba Mohanty and Krishna Mohanty died issueless, then their shares in the suit properties devolved upon their only successor i.e. Balakrishna Mohanty. The sabik recorded tenants of the suit properties i.e. Suratha, Rajiba, Krishna and Balakrishna had distributed the suit properties between their two branches equally without any metes and bound partition. After the death of Rajiba & Krishna, when, Balakrishna died in the year 1935, his half share in the suit properties devolved upon his widow wife Nabi Bewa and two minor sons i.e. Pitambar (defendant No.1) and Dibakara (defendant No.2). While defendant Nos.1 and 2 were minors, their widow mother i.e. Nabi Bewa being the mother guardian of the defendant Nos.1 and 2 sold the entire Ac.0.46 Decimals of suit sabik plot No.2375 to one Sadia Dei wife of Iswara Sahu through Registered Sale Deed dated 16.12.1940. The said Sadia Dei died leaving behind the defendant Nos.3,4 & 5 as her successors. After the death of Sadia Dei, the defendant Nos.3 to 5 being her successors, they (defendant Nos.3,4 & 5) sold the suit properties to the defendant Nos.6 to 8 on dated 30.10.1981. Though, the plaintiff has title and possession as a co-owner (co-sharer) of the suit properties, which has been devolved upon him after the death of his grand father and his father i.e. Suratha Mohanty & Gajendra Mohanty, but, the defendants S.A. No.117 of 1994 Page 4 of 14 managed to create the aforesaid sale deeds dated 16.12.1940 & 30.10.1981 illegally in respect of the entire properties of suit sabik plot No.2375 without having their title over the entire properties of suit Sabik Plot No.2375. For which, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.131 of 1981 against the defendants praying for partition of his half share from the suit properties. 5. Having been noticed from the Trial Court in the suit vie T.S. No.131 of 1981, the defendant Nos.1,2,9 & 10 filed their joint written statement supporting the case of the plaintiff. But, whereas the defendant Nos.6 to 8 filed their joint written statement challenging the suit of the plaintiff taking their stands inter alia therein that: The sale deed executed by Nabi Bewa on dated 16.12.1940 in respect of the entire properties of suit Sabik plot No.2375 in favour of Sadia Dei was valid and proper and accordingly, the said Sadia Dei was possessing the entire suit properties and when Sadia Dei died leaving behind her LRs i.e. defendant Nos.3 to 5 as her successors, then, they (defendant Nos.3 to 5) sold the same to them i.e. to the defendant Nos.6 to 8 through Registered Sale Deeds dated 30.10.1981, for which, they (defendant Nos.6 to 8) are the ownwers and in possession over the entire suit properties. In which, the plaintiff has no interest. For which, the suit of the S.A. No.117 of 1994 Page 5 of 14 plaintiff is liable to be dismissed against them (defendant Nos.6 to 8) with cost. 6. 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.131 of 1981 and the said issues are: ISSUES 1. 2. 3. 4. 5. 6. 7. Is the suit maintainable? Has the plaintiff any cause of action to file the suit? Is the suit barred by law of limitation? Is the suit property valud properly and proper court fees has been paid? Is the suit bad for non-joinder and mis-joinder of necessary parties? Is there jurisdiction of the civil court to try the suit? To what relief, if any, the plaintiff is entitled? 7. In order to substantiate the aforesaid relief i.e. partition sought for by the plaintiff against the defendants, he (plaintiff) examined three witness from his side including him as P.W.1 and relied upon the document vide Ext.1 (Sabik R.o.R. of suit sabik Khata No.473). On the contrary, in order to defeat/nullify the suit of the plaintiff, they (contesting defendant Nos.6 to 8) examined 6 witnesses on their behalf including defendant No.6 as D.W.3 and relied upon the documents vide Ext.A & K. 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 plaintiff and in favour of the defendants and basing upon the findings and observations made by the Trial Court in the issues Page 6 of 14 S.A. No.117 of 1994 against the plaintiff and in favour of the defendants, the Trial Court dismissed the suit of the plaintiff vide T.S. No.131 of 1981 on contest against the defendants as per its Judgment and Decree dated 09.03.1984 and 11.02.1984 respectively assigning the reasons that, when in Para No.6 of the pleadings of the plaintiff, he (plaintiff) has stated that, prior to 1940, the suit properties along with other properties were partitioned between the members of the branch of the plaintiff and defendant Nos.1 & 2 and the entire suit properties had fallen in the share of the members of the branch of defendant Nos.1 & 2, for which, the members of the branch of defendant Nos.1 and 2 were the co-onwers of the entire suit properties and they were possessing the same. So, after purchasing the entire suit properties i.e. the properties of the sabik Plot No.2375 through registered sale deed dated 16.12.1940 (Ext.E) from Nabi Bewa (mother of defendant Nos.1 & 2) by the mother of the defendant Nos.3 to 5 i.e. Sadia Dei, she (Sadia Dei) was possessing the same and thereafter, the successors of Sadia Dei i.e. defendant Nos.3 to 5 sold the same to the defendant Nos.6 to 8 through Registered Sale Deed dated 30.10.1981 vide Exts.B,C & D and accordingly, after purchasing the entire properties of suit Sabik plot No.2375, they (defendant Nos.6 to 8) are in continuous possession over the same since the time of their vendors. For which, even if it will be assumed for a moment that, the plaintiff had 8 Anna share in the suit properties, still then, due to S.A. No.117 of 1994 Page 7 of 14 long and continuous possession of the defendant Nos.6 to 8 over the suit properties for more than 40 years since the time of their vendors, they (defendant Nos.6 to 8) have acquired their title over the entire suit properties of suit sabik plot No.2375 by way of adverse possession and accordingly, they (defendant Nos.6 to 8) have perfected their title over the entire properties of suit sabik plot No.2375 through adverse possession. Therefore, the plaintiff has no interest in the suit properties. For which, the plaintiff is not entitled for the decree of partition of the suit properties. 9. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiff vide T.S. No.131 of 1981 passed by the Trial Court, he (plaintiff) challenged the same by preferring the 1st Appeal vide T.A. No.33 of 1984 being the appellant against the defendants arraying them (defendants) as respondents. After hearing from both the sides, the First Appellate Court dismissed that 1st Appeal vide T.A. No.33 of 1984 of the plaintiff (appellant) on contest as per its Judgment and Decree dated 27.01.1994 & 11.02.1994 respectively concurring/accepting the findings and observations made by the Trial Court for the dismissal of the suit of the plaintiff. 10. On being aggrieved with the aforesaid Judgment and Decree of the of the dismissal of the 1st Appeal vide T.A. No.33 of 1984 of the plaintiff, he S.A. No.117 of 1994 Page 8 of 14 (plaintiff) challenged the same by preferring this 2nd Appeal being the appellant against the defendants arraying them (defendants) as respondents. 11. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. Whether the findings and observations made by the Trial Court & First Appellate Court that, the suit properties were partitioned previously prior to the filing of the suit vide T.S. No.131 of 1981 between the plaintiff and defendant Nos.1 & 2? 12. I have already heard from the learned counsel for the appellant (plaintiff) only, as, none appeared from the side of the respondents (defendants) to participate in the hearing of the appeal. 13. It is the undisputed case of the parties that, the Sabik R.o.R of the suit Khata No.473 vide Ext.1 was published in the year 1929 jointly in the names of Suratha Mohanty (Grand Father of the plaintiff) indicating his share therein as eight Annas along with Rajiba Mohanty, Krishna Mohanty & Balakrishna Mohanty (predecessor of the defendant Nos.1 and 2) indicating their joint share therein as eight Anna. So, as per the aforesaid Sabik R.o.R vide Ext.1 as well as the pleadings of the parties and findings of the Trial Court and First Appellate Court, the plaintiff’s branch had 50% share and the branch of the defendant Nos.1 and 2 had 50% share in the suit properties. S.A. No.117 of 1994 Page 9 of 14 The plaintiff has stated in Para No.6 of his plaint that, as per amicable partition to the suit sabik plot No.2375 equally between the members of their aforesaid two branches i.e. between the members of the branches of the plaintiff and defendant Nos.1 & 2 without any metes and bounds partition, they were possessing the suit properties half and half. It is the undisputed case of the parties that, the members of the branch of the defendant Nos.1 and 2 had sold the entire properties of suit Sabik plot No.2375 Ac.0.46 decimals to the mother of the defendant Nos.3 to 5 i.e. Sadia Dei through Registered Sale Deed dated 16.12.1940 vide Ext.E. But, there is no indication in the sale deed dated 16.12.1940 (Ext.E) about the falling of the entire suit plot No.2375 in the share of the members of the branch of defendant Nos.1 & 2. 14. When the Sabik R.o.R of suit plot No.2375 under Sabik Khata No.473 was recorded jointly in the name of the predecessor of the branch of the plaintiff and the predecessors of the branch of the defendant Nos.1 and 2 as 50% share of each branch and when in the sale deed vide Ext.E dated 16.12.1940 executed by the mother of defendant Nos.1 and 2 i.e. Nabi Bewa in favour of the predecessor of the defendant Nos.3 to 5 i.e. Sadia Dei, there is no whisper/indication at all about the falling of the entire properties of suit plot No.2375 in the share of their branch through metes and bounds partition, then, at this juncture, on the basis of the joint R.o.R. vide Ext.1, it S.A. No.117 of 1994 Page 10 of 14 is held that, the sale/transfer of entire properties of suit sabik Plot No.2375 by Nabi Bewa in favour of Sadia Dei through sale deed dated 16.12.1940 (Ext.E) shall remain valid only to the extent of 50% share thereof, but not more than that. Because, the share of the members of the branch of Nabi Bewa in the suit properties was only 50%. On this aspect the propositions of law has already been clarified in the ratio of the following decisions: I. II. 2010 (II) OLR (SC) 126:Shanti Budhiya Vesta Patel & Othes Vrs. Nirmala Jayprakash Tiwari & Others— T.P. Act 1882—Section 54—No person can confer on another a better title than he himself has. (Para No.28) 2005 (II) OLR 330:Pragnya Rout Vrs. Hemaprava Ray & Others—T.P. Act 1882—Section 54—A person can alienate only the right which he possesses over the property and the purchasers acquire only that right. (Para No.15) III. IV.
Legal Reasoning
1974 (I) CWR 222:Ganapath Sahu and Another Vrs. Smt. Bulli Sahu and Others—T.P. Act 1882—Section 44 & 54—Transfer of property more than transferor’s interest in land jointly held with others is not invalid in toto. It would be valid and operative to the extent to transferor’s interest in the lands. (Para 10) 1998 (II) OLR 543: Smt. Rebati Dei Vrs. Kunja Bihari Mohapatra—T.P. Act 1882—Section 54—Out of three co-sharers, one co-sharer transferred the entire property. Held, sale is valid for 1/3rd share. (Para Nos.3 to 5) V. AIR 1995 (S.C) 1377:Nagar Palika, Jind Vrs. Jagat Singh, Advocate—T.P. Act 1882—Section 54— No co- sharer can convey title to a specific part of joint property. 15. When, in view of the propositions of law enunciated in the ratio of the (Para 6) aforesaid decisions the transfer/sale through sale deed dated 10.12.1940 (Ext.E) was valid only to the extent of 50% share in suit plot No.2375, the S.A. No.117 of 1994 Page 11 of 14 subsequent transfer/sale made by the defendant Nos.3 to 5 in favour of the defendant Nos.6 to 8 through Registered Sale Deeds dated 30.10.1981 (Exs.B,C & D) on the basis of the previous sale deed dated 16.12.1940 (Ext.E) cannot create title in respect of more than 50% of the properties of suit plot No.2375. 16. So, as per the discussions and observations made above, it is held that, the purchasers of suit plot No.2375 i.e. the defendant Nos.6 to 8 have only 50% share in the properties of suit Sabik plot No.2375 corresponding to Hal Plot No.2770, but they (defendant Nos.6 to 8) are not the owners of the entire properties of suit plot No.2375. When, the defendant Nos.6 to 8 have purchased the shares of the branch of the defendant Nos.1 and 2, then, as per law, the defendant Nos.6 to 8 have become the co-shares (co-owners) of the suit properties in place of their sellers i.e. defendant Nos.1 & 2 with the plaintiff. On this aspect the propositions of law has already been clarified in the ratio of the following decision: i. JBR Vol.XVII (1982) Part-II Page 43:Sudam Das Vs. Krushna Mahakur. When one of the co-sharers sells his share, the purchaser will become the co-sharer in place of the seller. If he wants to record some particular plot in his name, he has to make partition suit. No particular plot of land can be mutated in his name, unless other co-sharers consent to it or a decree from the Civil Court is obtained indicating his share. S.A. No.117 of 1994 Page 12 of 14 When, it is held that, the defendant Nos.6 to 8 are the co-sharers (co- owners) of the suit properties with the plaintiff, then, at this juncture, the Trial Court as well as the First Appellate Court should not have dismissed the suit for partition of the plaintiff, but both the courts should have decreed the suit of the plaintiff for partition of his half share from the suit properties. For which, there is justification under law for making interference with the Judgments and Decrees of the dismissal of the suit of the plaintiff passed by the Trial Court and First Appellate Court through this 2nd Appeal filed by the appellant (plaintiff). 17. Therefore, there is merit in the appeal of the appellant (plaintiff). The same must succeed. 18. In result, the 2nd Appeal filed by the appellant (plaintiff) is allowed on merit, but without cost. 19. The Judgments and Decrees passed by the Trial Court in T.S. No.131 of 1981 & First Appellate Court in T.A. No.33 of 1984 are set aside. 20. The suit be and the same vide T.S. No.131 of 1981 filed by the plaintiff is decreed preliminarily for partition on contest against the defendant Nos.1,2 & 6 to 8 on contest and ex parte against other defendants, but without cost. 21. Out of the suit properties, the plaintiff alone is entitled to get half share and the defendant Nos.6 to 8 are jointly entitled to get half share, but S.A. No.117 of 1994 Page 13 of 14 other defendants are not entitled for any share, because, they (other defendants) are the vendors/sellers of the defendant Nos.6 to 8. 22. The parties i.e. plaintiff and defendant Nos.6 to 8 may amicably affect the partition of the suit properties in proportion to their respective shares as indicating above within a period of 3 months hence, failing which, any one of the parties among the plaintiff and defendant Nos.6 to 8 may apply the Trial Court for making the decree final. 23. In the final decree proceeding, the Civil Court Commissioner to be appointed by the Court shall make division of the suit properties amongst the plaintiff and defendant Nos.6 to 8 by allotting their respective shares in their favour in accordance with the apportionments made above and while so partitioning, he shall respect to the possession and convenience of the plaintiff and defendant Nos.6 to 8 with stipulation that, the alienations if any made by them i.e. plaintiff and defendant Nos.6 to 8 in the meanwhile from the suit properties, the same shall be adjusted from their respective shares. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 06 .09, 2024// Rati Ranjan Nayak Sr.Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 06-Sep-2024 16:04:42 S.A. No.117 of 1994 Page 14 of 14