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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.251 of 2004 (From the judgment and decree dated 06.2.2004 and 17.2.2004 passed by learned Ad hoc Addl. District and Sessions Judge (Fast Track Court), Jajpur Road in T.A. No.21/59 of 1997) A.F.R. Harihar Mohanta … Appellant -versus- Raj Kishore Mohanta and others … Respondents Advocates appeared in the case through hybrid mode: For Appellant : Mr.S.P.Mishra, Sr. Advocate with Ms. Manisha Mishra -versus- For Respondents : Mr. S.B.Mohanta, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26.07.2024. Sashikanta Mishra,J. This appeal is preferred by the Defendant No.5 against a confirming judgment. Impugned is the judgment dated 06.2.2004 followed by decree passed R.S.A. No.251 of 2004 Page 1 of 16 by the learned Ad hoc Addl. District and Sessions Judge, Fast Track Court, Jajpur, in T.A. No.21/59 of 1997, whereby the judgment passed on 12.12.1996 followed by decree by the learned Addl. Civil Judge (Jr.Division), Jajpur Road, in T.S. No.26/1991 was confirmed 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. Before adverting to the case of the parties, it would be useful to refer to the following genealogy,
Legal Reasoning
which shows the relationship between the parties; G E N E A L O G Y Govinda Mohanta Chandramohan (D-5) =Wife Ghasini Mohanta (D-6) Satrughana Harihara Khirod Dinabandhu Chanchala Asalata D-1 D-2 D-3 D-4 Rajkishore Kusadwaja Sabitri Damayanti Pltf.1 Pltf.2 Pltf.3 Pltf.4 R.S.A. No. 251 of 2004 Page 2 of 16 4. The plaintiffs filed the suit for partition of the schedule properties. Their case is that their father Govinda Mohanta had three sons namely, Chandramohan, Satrughana and Harihar. Defendants 1 and 2 are the sons and Defendant Nos.3 and 4 are the daughters of Chandramamohan. Plalintif Nos.1 and 2 are the sons and Plaintiff Nos.3 and 4 are the daughters of Satrughana. Defendant No.6 is the wife of Chandramohan. It is claimed by the Plaintiffs that three brothers Chandramohan, Satrughana and Harihara purchased the suit land in the year 1951 and possessed it jointly appropriating 1/3rd share each. The Defendants subsequently attempted to deprive the Plaintiffs from their claim over the suit property and on 10.7.1991 they were not allowed to cultivate their share. The Plaintiffs asked for partition which the Defendants did not agree. Hence the suit. 5. Defendants 1 to 4 were set ex-parte. Defendants 5 and 6 alone contested the suit by filing written R.S.A. No. 251 of 2004 Page 3 of 16 statements on the same lines. It is the case of the said defendants that the ancestral properties situate in Keonjhar and Mayurbhanj Districts along with the suit property were amicably partitioned between three brothers in 1959 and as such the suit property fell to the share of Harihara and Chandramohan while the remaining property fell to the share of the Plaintiffs. After death of Chandramohan, Defendants 1 to 4 and 5 are in possession. It is stated that the Plaintiffs have no share over the suit property. Alternatively, it was claimed that the defendants had acquired title by adverse possession. 6. The trial Court framed the following issues for determination; “(I) Is the suit maintainable? (2)Has this Court pecuniary jurisdiction to try the suit ? (3) Is there any prior partition between parties in the year 1959 ? (4) Have the plaintiffs any cause of action to bring this suit ? R.S.A. No. 251 of 2004 Page 4 of 16 (5) Are the plaintifgfs entitled to 1/3rd share from the suit land ? (6) Have the defendants preferred their right, title, interest and possession in respect of the suit land by way of adverse possession due to ouster? (VII) Whether the plaintiffs are entitled for a decree of permanent injunction against the Defendants No.4 to 11?” 7. Issue No.3, being the material issue, was taken up for consideration at the outset. The trial court observed that according to the Plaintiffs the suit land was purchased from one Baisnab Sethi on 15.3.1991 vide R.S.D. marked Ext.1. The Defendants, however, claimed that there was partition in relation to the entire property on 20.3.1959, whereby the suit land fell to the share of Satrughana. Subsequently i.e. on 23.3.1959 the earlier partition was cancelled and another partition was made in which Satrughana was allotted the ancestral properties and the suit land fell to the share of Chandramohan and Harihar. The defendants filed an unregistered partition deed marked Ext.B in support of their claim of prior partition. The R.S.A. No. 251 of 2004 Page 5 of 16 trial Court after examining Ext.B and the oral evidence adduced by the parties held that the same cannot be acted upon. It was thus held that the suit land was not partitioned by metes and bounds. On Issue No.6, the Trial Court held that the plea of adverse possession advanced on behalf of a co-sharer is not maintainable. On such findings on the main issues, the Trial Court decreed the suit by holding the Plaintiffs to be entitled to the 1/3rd share of the suit land. 8. Defendant No.5 alone carried the matter in appeal to the District Court. In course of hearing, an application under Order 41, Rule 27 was filed by the Defendant-Appellant for adducing additional evidence. Certain sale deeds were sought to be admitted into evidence which, according to the defendants proved the plea of prior partition. The First Appellate Court found that the crux of the suit is whether there was prior partition in the year 1959. The documents sought to be admitted as additional evidence were examined individually. It was found that the same do not support R.S.A. No. 251 of 2004 Page 6 of 16 the plea of prior partition and therefore, are not relevant for the purpose of the suit. The petition was thus dismissed. As regards the so-called partition deed marked Ext.B, the First Appellate Court did not accept the same as a valid document as the same had not been registered. The plea of adverse possession was also held to be without merit. On such findings the appeal was dismissed. 9. Being further aggrieved the Defendant No.5 has filed the Second Appeal, which was admitted on the following substantial questions of law; “(i) Whether the rejection of the petition for additional evidence by the lower appellate court is contrary to the mandate of Order 41, Rule 27 C.P.C. ? (ii) Whether the courts below have misconstrued the evidence available on record to accept the plea of jointness when the defendants have established severance of status and prior partition ?”
Legal Reasoning
10. Heard Mr. S.P.Mishra, learned Senior counsel assisted by Ms. Manisha Mishra, learned counsel for the Appellant. None appeared for the Respondents R.S.A. No. 251 of 2004 Page 7 of 16 despite repeated calls. Be it noted that notice on the respondents had been validly served. 11. Mr.Mishra would argue that the First Appellate Court committed an illegality in rejecting the petition under Order 41, Rule 27 without considering the fact that the documents sought to be admitted as additional evidence would have had a material bearing on the outcome of the case and therefore, it would have enabled the Court to pass a proper judgment. Mr.Mishra further submits that both the courts below have committed manifest error in treating Ext.B as a partition deed even though it was nothing but a family memorandum indicating allotment of shares and did not by itself create or extinguish any right. As such, the document was not compulsorily registrable under Section 17(1)(e) of the Registration Act. It is further submitted that had the sale deeds sought to be admitted as additional evidence been considered, it would have shown severance of joint status thereby acting as estoppel against the Plaintiffs. That apart, R.S.A. No. 251 of 2004 Page 8 of 16 the Plaintiffs suppressed the existence of ancestral properties at Keonjhar and Mayurbhanj, which amounts to partial partition and as such, the suit was not maintainable. Several judgments have been relied upon by Mr.Mishra, which would be referred to at the appropriate place later. 12. After considering the submissions of learned counsel for the Appellant, this Court finds that the first question that falls for consideration is, whether the First Appellate Court committed any error in rejecting the petition filed by the Defendants for adducing additional evidence. From the copies of the petitions filed by the Defendants in the court below, it is seen that as many as 8 documents as per list were proposed to be filed. All these documents are registered sale deeds executed at different points of time. The First Appellate Court considered each of such documents and found that the same have no relevance to the suit inasmuch as none of them indicates that there was prior partition as claimed. The only thing that could be R.S.A. No. 251 of 2004 Page 9 of 16 established from the documents was that there was severance of joint status, but not partition by metes and bounds. This Court finds that the First Appellate Court made a meticulous examination of the documents in question to arrive at the conclusion that the same are not required for proper adjudication of the suit. After going through the reasons cited by the First Appellate Court as regards each of the documents, this Court finds nothing wrong therein so as to be persuaded to interfere. 13. The next question that falls for consideration is, the effect of the document marked Ext.B. Perusal of the document, which purports to be the partition deed shows the same to have been prepared on 23.3.1959. The document is executed by Satrughana Mohanta and signed by his brothers Chandramohan Mohanta and Harihara Mohanta. It is said to have been executed on 23.3.1959. Law is well settled that a mere memorandum of a family arrangement is not required to be compulsorily registered. Several judgments have R.S.A. No. 251 of 2004 Page 10 of 16 been cited by Mr. Mishra in this regard. It is needless to refer to all the judgments so cited save and except the one rendered by the Supreme Court in the case of Kale and others vs. Deputy Director of Consolidation and others,1. In the said case, the Supreme Court referred to the Halsbury’s Laws of England Vol.17, wherein the following was observed with regard to a family arrangement; “A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing but it is more usual to embody or to effectuate the arrangement in a deed to which the term "family arrangement” is applied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what the broadest view of the matter is most for the interest of families, and has regard to considerations which, dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.” in 1 (1976) 3 SCC 119 R.S.A. No. 251 of 2004 Page 11 of 16 Further, as regards the binding effect and the essentials of a family settlement in a concretised form, the following was observed; “(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family: (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary: (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some me interest even a antecedent possible claim is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement family fair and equitable which the property which title, claim or the is, in is R.S.A. No. 251 of 2004 Page 12 of 16 arrangement is final and binding on the parties to the settlement.” 14. In all the other cases cited, the principle laid down is that when a document creates a right or interest in immovable property, it becomes compulsorily registrable under Section 17 of the Registration Act. However, a mere memorandum of understanding/family arrangement without by itself creating or extinguishing any right in immovable property is not required to be compulsorily registered under Section 17(1)(e) of the Registration Act. There is no quarrel with the proposition of the law as referred above, but the question is, if the document marked Ext.B is a family arrangement or purports to create rights of the parties in the properties. As already stated, the document was executed by Satrughana Mohanta on 23.3.1959, it refers to a previous partition effected 3 days before i.e. on 20.3.1959. The subsequent document purports to invalidate the previous partition by specifically stating so in its recitals. This, according to the considered view of this R.S.A. No. 251 of 2004 Page 13 of 16 Court is highly significant to determine the real nature and character of the document. Had it been a rearrangement of the shares already allotted in the previous partition, the matter would have been different. But here, as already stated, the document specifically nullifies the previous document and makes it invalid. It further purports to grant specific shares in the ancestral properties as well as the suit properties. The entire claim of the defendants of deriving title over the suit property is based on this document. Therefore, as rightly held by both the courts below, if this document is to be otherwise accepted as having been actually executed, the same not having been registered can have no legal sanctity. Further, the document is conspicuously silent as regards the particulars of the properties sought to be partitioned. Further, if the document was executed as far back as in the year 1959, why did the co-sharers not mutate the same in their names as per the deed? The Courts below have also found that there is evidence of sale of ancestral properties by both parties, which proves that R.S.A. No. 251 of 2004 Page 14 of 16 the ancestral properties were divided between the 3 branches, but there is no such evidence of independent dealing by any of the co-sharers of the suit properties. For the reasons aforesaid, this Court fully concurs with the view that Ext.B cannot be treated as an acceptable proof of prior partition as claimed by Defendant No.5. 15. As regards the plea of adverse possession, the First Appellate Court found that Defendant No.5 had himself not taken such plea in his written statement though Defendant No.6 had. Since prior partition could not be proved, the possession of one co-sharer can only be treated as being on behalf of the other co- sharers. Therefore, as has been rightly held by the First Appellate Court, the plea of adverse possession, as raised, is not worthy of acceptance. 16. For the foregoing reasons therefore, this Court finds that none of the grounds raised by the Defendant-Appellant to question the correctness of the R.S.A. No. 251 of 2004 Page 15 of 16 findings rendered by the Courts below are valid so as to persuade this Court to interfere therewith. 17. Resultantly, the appeal fails and is therefore, dismissed, but in the circumstances without any cost. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jul-2024 11:54:58 R.S.A. No. 251 of 2004 Page 16 of 16