The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.258 of 2019 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 26.07.2019 & learned District Judge, 06.08.2019 Dhenkanal, in R.F.A. No.16 of 2017 setting aside the judgment & decree dated 07.01.2017 and 19.01.2017 respectively passed by the learned Civil Judge, Senior Division, Dhenkanal in C.S. No.12 of 2016. respectively passed by the ---- Niranjan Samal …. Appellant -versus- Hina Samal and Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondents -
Legal Reasoning
Mr.G.N. Mishra, Advocate CORAM: MR. JUSTICE D.DASH Date of Hearing : 21.02.2023 : Date of Judgment:28.02.2023 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 decree dated 26.07.2019 & 06.08.2019 respectively passed by the learned District Judge, Dhenkanal, in R.F.A. No.16 of 2017. By the same, the judgment & preliminary decree dated 07.01.2017 and 19.01.2017 respectively passed by the learned Civil Judge, Senior Division, Dhenkanal in C.S. No.12 of 2016 has been RSA No.258 of 2019 Page 1 of 7 {{ 2 }} modified with regard to the allotment of shares over the suit land to the parties. The Respondents, as the Plaintiffs, had filed the suit for partition of the properties described in Schedules-A & B of the plaint. The Trial Court decreed the suit preliminarily, allotting 6/15th share of Respondent No.4 (Plaintiff No.1) and the Appellant (Defendant) each and Respondent Nos.1, 2 & 3 (Plaintiff Nos.2, 3 & 4) each have been allotted 1/15th share from Schedule-A property excluding the property under Khata No.96 and further entitling the Respondent No.4 (Plaintiff No.1) and Appellant (Defendant) to half share each over Schedule-B property and equal 1/5th share from the land under Khata No.96. The Appellants (Plaintiff Nos.2, 3 & 4), being aggrieved by the judgment and preliminary decree passed by the Trial court, having carried the First Appeal under Section 96 of the Code, have been unsuccessful when the First Appellate Court has passed the preliminary decree allotting 1/5th share the Appellant (Defendant) and to Respondents (Plaintiffs). The Appellant (Defendant) thus being aggrieved by the judgment and preliminary decree passed by the First Appellant in that First Appeal preferred by the Respondents 1 to 3 (Plaintiff Nos.2 to 4), has filed this Second Appeal. 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. The Plaintiffs’ case is that Plaintiff No.1 and the Defendant are the sons of Arakhita Samal and Plaintiff Nos.2 to 4 are the daughters of Arakhita. The widow of Arakhita, namely, Jambu is dead. Arakhita and his wife Jambu, during their life time, had acquired landed properties in RSA No.258 of 2019 Page 2 of 7 {{ 3 }} Village-Chandrasekharpu and Bandhanuagaon. They have also sold some landed properties to outsiders and the rest land under Schedule-A was under their possession. It is stated that Plaintiff No.1 and the Defendant, while in joint mess and estate, have also acquired some landed properties in those two mouzas, which have been described in that Schedule-A of the plaint and those have also been recorded in their names jointly in the Hal Settlement record of right in the year 1986. The Plaintiff Nos.2 to 4, being married, are living in their in-law’s house. After the death of their father, Plaintiff No.1 and the Defendant got separated and began to live separately. It is stated that they have been possessing and cultivating the suit land separately for convenience without any partition in metes and bounds. The dissension arose amongst the members of the family and thereafter, when there was a failure to amicable resolve the dispute, the suit has been filed for partition. 4. The Defendant, in his written statement, has pleaded that there could not have been the advancement of the prayer for partition since the parties are possessing the land separately. It is next stated that the Plaintiffs have knowingly omitted the names of the vendees, who had purchased some land out of the suit property and the forcible possessors to be arraigned as parties to the suit. It is next stated that purposefully, the land appertaining to Khata No.167 under Plot No.1974 measuring an area of Ac.0.440 decimals of Mouza-Bandhanuagaon and the land under Khata No.173 an area of Ac.4.220 decimals at Mouza- Chandrasekharpur have been recorded in the name of Plaintiff No.1, but those properties have been purchased from out of the income of the joint family. The Plaintiff No.1 was an unemployed man having no source of earning to purchase the property and as such, he was managing the Page 3 of 7 RSA No.258 of 2019 {{ 4 }} family affairs at the time of purchase and thereafter. It is stated that the Plaintiff No.1, taking advantage of his assignment to look after the landed properties of their father, without the knowledge of Plaintiff Nos.2 to 4 and the Defendant, has purchased the above landed property in his name. The Plaintiff No.1 knowingly and purposefully omitted the said two khatas in Schedule-A which he ought to have added for being partitioned amongst the parties. It is next stated that the Plaintiff No.1 and the Defendant each are entitled to 6/15th share and Plaintiffs Nos.2 to 4 each are entitled to 1/5th share over Schedule-A property and the Plaintiff No.1 and the Defendant are entitled to get half share each over Schedule-B property. 5. The Trial Court, on the above rival pleadings, framed seven issues. Answering the crucial issues with regard to the nature of properties under Khata Nos.167 & 173 of Mouza-Bandhanuagaon and Chandrasekharpur respectively being not brought within the purview of the suit for partition as also the dealing with the properties, prior partition and the share of the parties over the suit property as of their entitlement; upon detail examination of the evidence and their analysis, the following order has been passed:- “The suit be and the same is decreed preliminarily on contest against the defendant, but without cost. The plaintiff No.1 and the defendant are entitled for 6/15th share and plaintiff nos.2 to 4 each are entitled to get 1/15th share each from ‘A’ schedule property excluding Khata No.96 (Ext.2). The Plaintiff No.1 and the defendant both are entitled for half share each form ‘B’ schedule property and equal 1/5th share from Khata No.96. The parties are directed to effect an amicable partition in respect of the properties described in plaint-schedule in accordance with the above defined shares, within a period of two months hence, failing which they are at liberty to approach this court for actual division of the lands and allotment of specific parcels out of the same in RSA No.258 of 2019 Page 4 of 7 {{ 5 }} accordance with the above declared shares through the process of the court. Pleader fee as per contested scale.” 6. The First Appellate Court, being moved by the aggrieved Plaintiff Nos.2 to 4, upon re-appreciation of evidence and on going through the provisions contained in Hindu Succession Act, 1956, as it stands after the Amendment of 2005, has passed the following order:- “There is good ground for the appeal to succeed and hence the appeal is, hereby, allowed. The impugned judgment and decree passed by the learned trial court is set aside as regards to allotment of 6/15th share in favour of the plaintiff no.1 and defendant and 1/15th share in favour of plaintiffs no.2 to 4 over suit schedule ‘A’ land except khata no.96 and consequently, the impugned judgment and decree modified to the extent that the plaintiffs and defendant are entitled to get 1/5th share each over ‘A’ schedule property by keeping all other terms and conditions intact. Xx xx xx xx” 7. Learned counsel for the Appellant submitted that the First Appellate Court has committed an error in holding Schedule-A property to be the separate property of the father, Arikhita and not the coparcenary/ancestral property. He further submitted that the First Appellate Court, despite finding the property to be not the self-acquired property, ought to have held the property to be ancestral and accordingly the shares of the parties as had been allotted by the Trial Court, ought not to have been modified. He, therefore, urged for admission of this Appeal by framing the above as the substantial question of law. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 9. It is not in dispute that the property under Khata Nos.15 & 23, stand recorded in the name of Arikhita as is evident from Ext.A and Page 5 of 7 RSA No.258 of 2019 {{ 6 }} Ext.5 and the land under Khata No.96 as reflected in Ext.2 is recorded in the name of Jambu, the mother of the parties. The Plaintiffs claim that Schedule-A property is the self-acquired property of their father and, therefore, the settlement record of right has been prepared. On the other hand, the Defendant asserts that the property in suit is their ancestral properties. The Courts below, upon detail examination of the evidence and their discussion, have concurrently found that there was no prior partition of the properties amongst the parties and that separate possession was for convenience. There is no such specific pleading as to partition and separate allotment of land to all the parties indicating the extent. There is also no evidence of any more for separate recording and rent is also not stated to have been paid separately. The partition as pleaded and stated in evidence is quite vague. Therefore, this court finds no such perversity with the said finding so as to interfere. Therefore, the challenge to the maintainability of the suit for partition has rightly been negated. The Hal record of right (Ext.1 & Ext.5) published in the year 1984 is clear that the property thereunder has been recorded in the name of Arakhita Samal and some properties in the name of the mother of the parties under Ext.2. The dispute is with regard to the nature of property whether it is ancestral in the hands of Arikhita or self-acquired in his hand in the present case is found to be of no significance in view of the provision contained in section 6 of the Hindu Succession Act, as it stands after the amendment in the year 2005 wherein the daughters have been deemed to the coparceners having the right by birth. The conclusion of the First Appellate Court in determining the shares of the parties, who are the sons and daughters of Arakhita is thus found to be free from any infirmity. RSA No.258 of 2019 Page 6 of 7 {{ 7 }} For all those aforesaid, the submission of the learned counsel for the Appellant that the Appeal merits admission to answer the substantial questions of law as pointed out above cannot be countenanced with. 10. Accordingly, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash), Judge. Basu RSA No.258 of 2019 Page 7 of 7