The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.76 of 2020 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 29.11.2019 and 06.12.2019 respectively passed by the learned District Judge, Nayagarh in RFA No.5 of 2018 in confirming judgment and decree dated 28.02.2018 and 14.03.2018 respectively passed by the learned Senior Civil Judge, Nayagarh in C.S. No.07 of 2012. ……… M/s. Lakshya Suppliers LLP (formerly Lakshya Suppliers Pvt. Ltd.) :::: Appellant -:: VERSUS ::- Kuntala Sahoo & Another :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- … Mr. Manoj Mishra, Sr. Advocate For Appellant Mr. T. Mishra, Advocate For Respondents … Mr. B.P. Tripathy, Advocate (R.1) Mr. A.K. Dora, Advocate (R.2) ------ CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 15.02.2024 :: Date of Judgment:29.02.2024 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and preliminary decree passed by the learned District {{ 2 }} Judge, Nayagarh in RFA No.05 of 2018 by which the judgment and preliminary decree passed by the learned Senior Civil Judge,
Legal Reasoning
Nayagarh in Civil Suit No.07 of 2012 have been confirmed. The Respondent No.1 as the Plaintiff has filed the suit for partition of the suit properties described in schedule ‘A’ and ‘B’ of the plaint entitling her to half share over the same in side by side declaring the registered sale deed executed by Respondent No.2 (Defendant No.2) in favour of the Appellant (Defendant No.2) on 11.02.2011 as illegal and void and for recovery of possession as also permanent injunction. The suit stood decreed by the Trial Court with the following order:- “ The suit be and the same is decreed preliminary in part on contest against the Defendants and it is hereby declared that the Plaintiff and Defendant No.1 are to get ½ share each over suit Scheduled-A & B land. However, the parties are instructed to effect mutual partition among themselves within two months hence, failing which, any of them may seek to make the decree final and to carve out his share, through a survey knowing Civil Court Commissioner as per law. However, while making the partition and allotment, the said Civil Court Commissioner shall take into consideration the convenience and equities of the parties and shall make adjustments as would be legal and proper and would give due respect to the admitted possession of the parties. Properties, if any, sold by any of the parties would be adjusted from their respective shares. The costs of the final decree proceeding shall be borne by the parties in proportion to their that is respective shares. further ordered It Page 2 of 14 {{ 3 }} Defendant No.2 is directed to deliver vacant possession of the suit Schedule-A property, failing which Plaintiff is entitled to recover the same by the process of law and further Defendant No.2 is restrained from entering upon suit land till the suit and properties partitioned Defendant No.1 by metes and bounds” among Plaintiff The Appellant being the aggrieved Defendant No.1 having the carried the Appeal under section 96 of the Code has been unsuccessful. Hence the present Second Appeal is at the instance of the Appellant (Defendant No.2) who has suffered from the judgments and preliminary decrees passed by the Courts below. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiff’s case is that the land described in schedule ‘A’ of the plaint measuring Ac.0.75 dec. stood recorded in the name of Guria Bewa wife of Ladu Sahu who happens to be the mother of the Plaintiff and Defendant No.2 as per the Sabik Settlement record. In the Hal settlement record, said land has been recorded in the name of Guria Bewa for a reduced area of Ac.0.62 dec. The property in schedule ‘B’ of the plaint stands recorded in the name of Guria, the mother of the Plaintiff and Defendant No.1 (Plaintiff is the daughter of Guria and Ladu) whereas Defendant No.1 is their son. On the death of Guria and Ladu, the Plaintiff and Defendant No.1 became Page 3 of 14 {{ 4 }} the owners in possession of the property in schedule ‘A’ and ‘B’. They jointly possessed the land having 50% share each over the same. On 09.11.2011, the Defendant No.2 with the help of some local muscle man tried to dispossess the Plaintiff from the suit land and put up some construction over the same. At that time, the Plaintiff came to know that schedule ‘A’ has been illegally and fraudulently alienated by her brother-Defendant No.1 in favour of Defendant No.2 by registered sale deed dated 11.02.2011. The Plaintiff, therefore, approached her brother-Defendant No.1 for partition of the land. The Defendant No.1 since did not pay any heed to the said request, the Plaintiff was compelled to file the suit seeking the relief as afore-stated. It be stated here the Plaintiff’s later on his projected the case that during pendency of the suit, he has been dispossessed from the land in schedule ‘A’ by the Defendant No.2. 4. The Defendant No.1 in his written statement has denied to have sold entire ‘A’ schedule land by executing registered sale deed on 11.02.2011 in favour of the Defendant No.2. It is stated that taking advantage of his illiteracy, fraud having been practaised, the Defendant No.2 has obtained the sale deed from him in respect of entire schedule ‘A’ land, which even covers the land over which the Plaintiff was having her share. He, therefore, did not raise any Page 4 of 14 {{ 5 }} objection for partition of the properties as prayed for by the Plaintiff. The Defendant No.2 coming to contest the suit asserted to be having the right, title, interest and possession over schedule ‘A’ land which he claims to have lawfully purchased from the Defendant No.1 who had executed the sale deed on 11.02.2011 to that effect on receipt of the valuable and agreed consideration. It is stated that the Defendant No.2 being the exclusive owner of the said property when has sold the same as per law, the claim of the Plaintiff for partition of that patch of land has no basis. 5. On the above rival pleading, the Trial Court framed the following issues:- ”(i) Whether the suit is legally maintainable? (ii) Whether there is cause of action to file such a suit? (iii) Whether the Plaintiff is entitled for a decree of partition and if so, what is her share? (iv) Whether the RSD bearing no.11411100196 dtd.11.02.2011 be declared as void or illegal? (v) Whether the suit is hit under the provisions of law of acquiescence? (vi) Whether the Plaintiff is entitled for a decree of permanent injunction as against the Defendant No.2? Page 5 of 14 {{ 6 }} (vii) Whether the Plaintiff is justified in not including all the family properties in the partition sought? (viii) Whether the suit is maintainable without all the properties of the family being included in the hotchpotch of the suit? (ix) Whether the Plaintiff is not entitled to any share in the joint family properties for she being not a coparcener? (x) Whether the Plaintiff is entitled for relief of recovery of possession? (xi) Whether the suit is bad for non-joinder of necessary party that is M/s. PAN TIME FINANCE LTD.?” 6. The Trial Court having taken up, Issue Nos.3,7,8 and 9 together upon examination and evaluation of the evidence in the backdrops of the rival pleadings has come to a conclusion that the land in schedule ‘A’ and ‘B’ are liable to be partitioned. The other issues having also been answered in favour of Defendant No.1, the suit has been decreed preliminarily. The First Appellate Court being moved by the Defendant No.2 has again reiterated the findings of the Trial Court and the judgment and preliminary decree passed by the Trial Court have been confirmed. 7. It would be pertinent to mention here that when the Trial Court first disposed of the suit on 25.10.2014, the Defendant No.2 Page 6 of 14 {{ 7 }} had preferred the First Appeal, i.e., R.F.A. No.9 of 2015 which came to be disposed of on 27.01.2016. The First Appellate Court then directed the Trial Court to frame some issues and decide the suit afresh. It is only after remand, the Plaintiff amending the plaint brought schedule ‘B’ property under Khata Nos.333, 336 measuring Ac.0.37 dec. and Plot No.1406 measuring Ac.0.16 dec. 8. The present Appeal has been admitted to answer the following substantial question of law:- “(a) Whether in view of admission of the Plaintiff- P.W.1 in his deposition to the effect that she has filed the suit for partition of the suit property under ‘B’ Schedule pertaining to Hal Khata No.333 to an extent of Ac.0.53 decimals out of which Ac.0.16 decimals is homestead and Ac.0.37 decimals when cashew plants are grown, the Courts below are justified in granting preliminary decree of partition of the entire suit land? (b) Whether in view of admission of the Plaintiff- P.W.1 in his deposition to the effect that she has no claim over Plot No.68 under Khata No.129 to an extent of Ac.0.62 decimals of Mouza Bent sold to the Defendant No.2, the courts below are justified in granting the relief to the Plaintiff in respect of the same?”
Legal Reasoning
9. Mr. Manoj Mishra, learned Senior Counsel for the Appellant submitted that the Trial Court by going to pass the preliminary decree in respect of schedule ‘B’ land has gone to grant the relief to the Plaintiff which she had not pressed into service during trial by giving go bye to her claim as laid in the plaint. He further submitted Page 7 of 14 {{ 8 }} that the Courts below when have held the case of the Defendant No.1 that he had not actually sold the land measuring Ac.0.62 dec. as described in schedule ‘B’ and the deed has been fraudulently obtained from him by the Defendant No.2 has not at all been made out and the sale deed thus having been genuine and valid that should have been given due regard keeping in view the evidence of the Plaintiff to herself. He further submitted that in view of the evidence of the Plaintiff to which he had drawn the attention of this Court, the Courts below ought to have held that it was an arrangement between he (Plaintiff) and brother (Defendant No.1) and, therefore, ought to have held the Plaintiff alone as entitled to schedule ‘A’ property leaving schedule ‘B’ property to be adjusted being the land sold by the Defendant No.1 towards his share as according to him, in an arrangement, it does not stand as the rigid consideration to be given respect only when the extent of the shares of the parties is strictly adhered to but not with the deviation. 10. Mr. B.P. Tripathy, learned counsel for Respondent No.1 (Plaintiff) submitted all in favour of the finding given by the Courts below and their ultimate decision. According to him, the Courts below have rightly refused to give much stress upon the stray statement of the Plaintiff who is an old woman when at a subsequent stage she has gone to explain as to under what circumstance such a statement had been given. He further submitted that the location of the property in schedule ‘A’ and ‘B’ Page 8 of 14 {{ 9 }} being different and when admittedly the Defendant Nos.1 and 2 have half share each over both the items of the properties, it would not have been permissible for the courts below to accept the sale deed standing in favour of the Defendant No.2 being executed by the Defendant No.1 for the total extent of land as indicated therein which is in schedule ‘B’. 11. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have perused the plaint and written statement and have gone through the evidence let in by the parties. 12. At the cost of repetition, it be stated that the Plaintiff has filed the suit for declaring the registered sale deed dated 11.02.2011, executed by Defendant No.1 in favour of Defendant No.2 as illegal and void and for recovery of possession and permanent injunction and also for a preliminary decree allotting half share to the Plaintiff over the suit land. The suit land as described in the schedule of the plaint is the land covered under Plot No.1381/1433 pertaining to Khata No.681 measuring an area of 75 decimal, which is said to be corresponding to the land recorded under Hal Khata No.129 Plot No.68 measuring 62 decimals. The Trial Court preliminarily decreed the suit declaring half share of the Plaintiff over the suit land with further stipulation that the property sold by the parties would be adjusted from their respective shares. The share holders in respect of Page 9 of 14 {{ 10 }} the properties are the Plaintiff and Defendant No.1. The Plaintiff has accepted said preliminary decree wherein her prayer to declare the registered sale deed dated 11.02.2011 as void was not allowed. The Defendant No.2 having carried the First Appeal, in that First Appeal, the Plaintiff has not filed any Cross Appeal or Cross Objection as to such denial of the relief of declaration of that registered sale deed dated 11.02.2011 executed by Defendant No.1 in favour of Defendant No.2 as invalid and illegal. The Defendant No.2 from the very beginning, having asserted his right, title, interest and as such possession over the suit land on the basis of the registered sale deed dated 11.02.2011 executed by Defendant No.1 in his favour, had objected that the Plaintiff is not entitled to any of the reliefs claims including the preliminary decree for partition allotting half share over the suit property in her favour. In the present Second Appeal, the Plaintiff simply supports the preliminary decree for partition allotting half share to her over the suit property, which has been passed by the Courts below. 13. The Defendant No.2, in order to thwart the suit is banking upon the evidence of the Plaintiff examined as P.W.1. The Plaintiff examined as P.W.1 has stated on oath that the land under Khata No.333 Plot No.336 is used as bari and land under plot no.1406 is used as Gharabari where residential house is standing. So she has said that no partition is required in respect of said land. Next she has stated in paragraph 37 of her cross-examination that her father had Page 10 of 14 {{ 11 }} given her the share in plot no.336 in respect of an area of 37 decimal. Having said so, it has been further stated by her that she has no claim in respect of the land covering measuring Ac 0.62 decimal sold by Defendant No.1 in favour of Defendant No.2. The Courts below have negated the claim of the Defendant No.1 that the sale deed had been taken from him by practising fraud and taking advantage of his illiteracy. Said Defendant No.2 has not carried any First Appeal when his claim to that effect has been discarded nor in the First Appeal filed by Defendant No.1, he has filed any Cross Appeal or Cross Objection. The above is the admission of the Plaintiff on oath during cross-examination. P.W.1 has not been explained it in any manner. However, the Trial Court has said that no paper to support the same has been filed by any of the parties to the effect that the properties had earlier been separately allotted to her and her brother Defendant No.1. Such an approach is untenable. When the Plaintiff has admitted in her evidence, the Defendant No.2, in order to take advantage of the same or to press the same into service, was not at all required to give further proof. The Trial Court has stated that whatever is elicited from the mouth of P.W.1 is not to be taken into account and in view of the documentary evidence showing the recording of the suit land as joint is enough to decree the suit preliminarily. This conclusion is not legally supportable. 14. The Plaintiff in her evidence has stated to have filed the suit for 4 (four) manas of land and it is stated that out of this, 1.5 mana is Page 11 of 14 {{ 12 }} Gharabari and rest of 2.5 is Bari. Thereafter, it is her evidence that she does not want partition in respect of Gharabari land i.e. 1.5 mana. It has also been stated by her that she does not want partition in respect of plot no.336 i.e. bari land, which is 2.5 Mana. The Courts below have held on examination of evidence and their evaluation that the Defendant No.2 is in possession of schedule A land. But it has been said that since there was no partition between the Plaintiff and Defendant No.1, the Defendant No.2 is not entitled to the same. On the face of the admission of the Plaintiff (P.W.1) when the Plaintiff has not properly explained said admission that has withdrawn, the same is acceptable in the eye of law. At this stage, it is pertinent to mention that initially the suit had been filed describing the land under khata no.681 plot no.1381/1433 measuring Ac0.75 decimal corresponding to Hal Khata No.129 plot no.68 measuring Ac 0.62 decimal. But that having been preliminarily decreed for partition of the same allotting half share to the Plaintiff in the first round of First Appeal, the First Appellate Court had remanded the suit to the Trial Court to frame the following issues:- (i) Whether the Plaintiff is justified in not including all the family property in the partition suit? (ii) Whether the suit is maintainable without all the properties of the family being included in the hotchpotch of the suit? (iii) Whether the Plaintiff is not entitled any share in the joint family for she being not a coparcener? Page 12 of 14 {{ 13 }} 15. After the said remand, the Plaintiff amended the plaint and described the above land in schedule A while further describing the land appertaining to Khata no.333 plot no.336 measuring an area of 37 decimal and plot no.1406 an area of Ac 0.16 decimal. The Defendant No.2 after remand then claimed that the schedule B land be adjusted towards the share of the Plaintiff as the Defendant No.1 had already sold schedule A property to the Defendant No.2 and that is what as exactly been stated by P.W.1 in her evidence that her father had given her the share over the land under plot no.336 measuring Ac0.37 decimal. The Plaintiff having not brought the B schedule property to the hotchpotch at the initial stage, brought it within the purview of the suit after remand. Now when he claims that the property in schedule B measuring AC0.37 decimal had been given to her share and when the sale in respect of schedule A land as challenged by the Defendant No.1 on the grounds mentioned in his written statement has been upheld, this Court is of the considered view that the Courts below ought not to have granted preliminary decree for partition of the entire suit land in Schedule A and B and i having not held the sale made by Defendant No.1 in favour of Defendant No.2 in respect of schedule A land as the outcome of forgery etc., the suit filed by the Plaintiff ought to have been decreed declaring her right, title, interest over the land in schedule B of the plaint as to have fallen in her share and her possession in respect of that land ought to have been confirmed. Page 13 of 14 {{ 14 }} 16. The substantial questions of law are accordingly thus answered that the Courts below are not justified in granting the preliminary decree for partition of the entire suit land and the property in schedule A of the plaint ought to have been held to fallen in the share of Defendant No.1 which he has validly sold to Defendant No.2. 17. The Appeal is accordingly allowed. The suit filed by the Plaintiff is decreed declaring her right, title, interest over schedule B property and confirming her possession over the same and in case she is found to have been dispossessed in the hands of the Defendants, the possession of the same be recovered in her favour through the process of the Court. In the facts and circumstances of the case, no cost is however awarded. True Copy P.A. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 07-Mar-2024 19:58:03 S/d (D. Dash), Judge. Page 14 of 14