The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.300 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 4th March, 2016 and 19th March, 2016 respectively passed by the learned District Judge, Nayagarh in R.F.A. No.18 of 2014 confirming the judgment & decree dated 28th February, 2013 passed by the learned Civil Judge (Senior Division), Nayagarh in C.S. No.48 of 2005. Jhari Muduli & Others ---- -versus- Mahadev Muduli & Another …. …. Appellants Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.S.B.Mohanty and S.Mohapatra. (Advocates) For Respondents - Mr.R.Mohanty (Advocate for R.1) Mr.A.K. Nayak (Advocate for R.2) CORAM: MR. JUSTICE D.DASH Date of Hearing :21.09.2023 : Date of Judgment:09.10.2023 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment & decree dated 4th March, 2016 and 19th RSA No.300 of 2016 Page 1 of 14 {{ 2 }} March, 2016 respectively passed by the learned District Judge, Nayagarh in R.F.A. No.18 of 2014.
Legal Reasoning
The Appellants, as the Plaintiffs, had filed the suit numbered as C.S. No.48 of 2005 in the Court of the learned Civil Judge, Senior Division, Nayagarh seeking partition of the landed properties measuring Ac.1.91 decimals better described in Schedule-A of the plaint arraigning the Respondents as the Defendants. The suit, having been dismissed, they had carried the First Appeal under section 96 of the Code, which too has been dismissed. 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 Suit. 3. Plaintiffs’ case is that the properties, which form the subject matter of the suit, was the self-acquired property of common ancestor Bishnu Muduli, who died some time in or about the year 1989-1990 leaving behind two sons, namely, Mahadev (Defendant No.1) and Balabhadra, the predecessor-in-interest of the Plaintiffs. During life time of Bishnu, Mahadev, Balabhadra and Kaincha, who happens to be the daughter of Balabhadra, were in joint family. After the death of Bishnu, there was a separation between Mahadev and Balabhadra and they cultivated the suit property separately for convenience. They had also constructed RSA No.300 of 2016 Page 2 of 14 {{ 3 }} their separate houses over the piece of land under Plot No.328 measuring Ac.0.26 decimals. They were paying rent separately in respect of the property under their possession. It is, however, stated that all such arrangements were for convenience and there was never any partition amongst them in respect of the property in meets and bounds. The property has been recorded in the name of Bishnu in the Hal Settlement Record of Right published in the year 1987. The Plaintiffs, therefore, prayed for passing of a preliminary decree for partition of the property in the suit entitling them to 1/3rd share each. 4. The Defendant No.2, in her written statement, supported the claim of the Plaintiffs. 5. The Defendant No.1 contested the suit by asserting that the suit property was not the self-acquired property of Bishnu nor it was the ancestral property. He claimed that the suit land had long since been partitioned amongst the brothers during the life time of Bishnu and several transactions stretching over the period have taken place whereby the lands have been alienated to many outsiders. It is also stated that the genealogy presented by the Plaintiffs is not correct. As per his case, one Panchu was the common ancestor, who was jointly possessing Ac.11.28 decimals of land with his co-sharers in Village-Indipata and Katiapada. RSA No.300 of 2016 Page 3 of 14 {{ 4 }} After the death of Panchu, his sons, namely, Punia and Bishnu inherited the said land with other co-sharers and they had effected partition amongst them, in which Ac.3.00 decimals of land in Village-Indipata and Katiapada had fallen to the share of Bishnu. When the family was in joint, Bishnu spent money for the education of children and for marriage of Defendant No.2 by selling several areas of land. It is further stated that Balabhadra had married Plaintiff No.1 thirty years before. The marriage was not successful. So, Plaintiff No.1 created disturbances in the family and went away to her father’s place. The marriage between Balabhadra and Plaintiff No.1 stood dissolved as she did not agree to return. She, at that point of time, had given birth to a son (Babulirathi Muduli). After the dissolution of the marriage, Balabhadra married Sombari for the second time and through her, a son, namely Pradeep and a daughter named Tikina were born. So, it is said that said Sombari, being a necessary party, has not been impleaded as such in the suit. It is the further case of Defendant No.1 that after above dissolution of the marriage, when Bishnu was alive, Plaintiff No.1 sought separation from the family seeking the share of paddy and movables and by agreement dated 25.03.1975, separation was made. However, in spite of separation so effected under the agreement after dissolution of the marriage of Jhari with Balabhadra, she again came and created disturbances in the RSA No.300 of 2016 Page 4 of 14 {{ 5 }} family. So, it was decided to affect a partition complete in every respect. In pursuance of the same, in presence of the then Sarpanch and local gentries, on 30.11.1995 an amicable partition was affected amongst them in meets and bounds. In that partition, entire ancestral properties including the homestead land and house, jointly purchased land of Mahadev and Balabhadra and other movables were equitably partitioned in three equal shares; one for the father and mother one each for the two sons. The partition was accepted by all. In the said partition, the homestead land and agricultural lands were described by their local names. There were two RCC rooms and two thatched rooms, which was the ancestral residential house in Kumbhar Sahi in Village-Indipata, which too had been partitioned. Accordingly, out of the said four rooms, when the father and mother were allotted with two RCC rooms, the two sons Balabhadra and Mahadeba were allotted with one thatched room each. In the said partition, cultivable land of Ac.0.26 decimals of Village-Indipata had been divided into two half with allotment of Ac.0.13 decimals to each. In the said partition as total land of Ac.3.62 decimals were subjected to division and as the result of the partition, the parents were allotted with Ac.1.62 decimals and out of rest, the Defendant No.1 got Ac.1.01 decimals and the rest Ac.0.99 decimals was allotted in favour of Balabhadra. The partition so effected was reduced into writing and the RSA No.300 of 2016 Page 5 of 14 {{ 6 }} Memorandum of Partition had been prepared where the parties and the gentlemen present had lent their hands. After the partition was effected, one Udayanath Rana of Village-Indipata created disturbances in respect of the land of Kaitha Kiari measuring Ac.0.26 decimals staking a claim that Balabhadra had mortgaged said land to him by mortgage deed dated 01.04.1975 having borrowed a sum of Rs.700/-. So, due to intervention of local gentlemen, the partition was reopened on 01.06.1979 and as at that time, Balabhadra was not in a position to repay the loan dues with interest to Udayanath, it was decided that Defendant No.1 would repay the loan dues and take the entire land measuring Ac.0.26 decimals and Balabhadra would subsequently take the entire ancestral land situated in Vilage-Indipata. Pursuant to the said decision, the Defendant No.1 completed the construction of kachha house at Kaithi and shifted to the said newly constructed house vacating the ancestral house to be occupied by Balabhadra. It was then decided that the old parents, during their lifetime, would remain in the ancestral house. The Defendant No.1, following such a decision, paid the amount borrowed by Balabhadra from Udayanath and got the land released. After the said partition, Bishnu sold Ac.0.39 decimals of land in parts to Mayadhar Das, Jharia Swain, Bholei Swain, Budhia Swain, Biswanath Mishra and Dayanidhi Muduli. The RSA No.300 of 2016 Page 6 of 14 {{ 7 }} Defendant No.1 also sold land out of his share to Pitabas Barik, Hari Behera, Nabina Barik, Kalandi Muduli, Balabhadra Muduli. He also sold some lands of his share to Biswanath Mishra, Siba Behera, Janardan Behera and Rajkishore Das and then, some other lands even to Defendant No.1. During those sale transactions, the father and two brothers had given their consent in all the sale deeds in respect of their separate shares as the Record of Right was still in the name of Bishnu. All those vendees after their respective purchases have been in possession of their purchased land and paying rent to the State. It has also been stated by Defendant No.1 that their father Bishnu, towards the end of the life, had incurred loans, which he could not pay. He died in the year 1984 and thereafter, the mother expired in the year 1986. So, for their Sudhi Kriyas, Mahadev and Balabhadra had borrowed loan from outside and in order to repay the same, both Balabhadra and Mahadev jointly sold Ac.0.17 decimals of land to one Sanatan Maharana, Ac.0.10 decimals to one Budhia Swain. It is further averred by Defendant No.1 that during the Hal Settlement Operation, the partition was, however, not accepted by the Settlement Authority for want of any registered document in support of the same and, therefore, the property continued in the name of Bishnu Muduli in the record of right. Be that as it may, the Settlement Authority, basing on the registered sale RSA No.300 of 2016 Page 7 of 14 {{ 8 }} deeds, recorded the suit land in the name of Mahadev. Having pleaded all these facts, the Defendant No.1 pressed for dismissal of the suit. 6. The Trial Court, on the above rival pleadings, framed as many as four (4) issues. The crucial issue, being issue no.3 as regards the entitlement of the Plaintiffs to the relief of partition of the property in suit, upon examination of the evidence and their evaluation, it has been found that there was prior partition of the properties and that has all through been acted upon. Practically, the answer to the above issue has resulted the dismissal of the suit. 7. The Plaintiffs thus, being non-suited, having carried the Appeal under section 96 of the Code, have failed in that move. 8. The present Appeal has been admitted to answer the following substantial question of law:- “Whether there was previous partition effected between the parties and non-framing the specific issue in that regard, had any impact on the adjudication of the suit.” 9. Learned counsel for the Appellants (Plaintiffs) submitted that the concurrent findings of the Courts below that there was previous partition and, therefore, the Plaintiffs are not entitled to seek the relief of partition of the properties afresh is the outcome perverse appreciation of the evidence. It was submitted that the Page 8 of 14 RSA No.300 of 2016 {{ 9 }} Courts below, on the face of the Record of Right standing in the name of Bishnu, ought to have ignored the other evidence and effected the partition as prayed for. He further submitted that before giving answer to that issue, the Trial Court was under the legal obligation to specifically frame an issue as regards previous partition, as has been pleaded by Defendant No.1 and that having not been done, there has not been proper appreciation of the evidence by the Courts below, which has definitely impacted the decision in the suit.
Legal Reasoning
10. Learned counsel for the Respondent No.2 (Defendant No.2), when reiterated the submission of the learned counsel for the Appellants (Plaintiffs); learned counsel for the Respondent No.1 (Defendant No.1) submitted all in favour of the findings of the Courts below that there was a previous partition and thus, the conclusion that the Plaintiffs are not entitled to seek partition of the properties afresh in the present suit. He submitted that in view of the overwhelming evidence on record as to the long standing conduct of the parties and their dealing with the properties creating interest over the properties of the family in favour of third party-strangers, who are not parties to the suit, the Courts below are right in concurrently finding that there was a previous partition. He submitted that when nothing surfaces on record to show that such finding suffers from the vice of RSA No.300 of 2016 Page 9 of 14 {{ 10 }} perversity, the substantial question of law on that score is required to be answered in the negative. He further submitted that when Defendant No.1, in clear terms, has pleaded all those fact in support of the previous partition including the transactions made, the dealing with the properties by the parties and accordingly, the parties have led evidence at length, the Courts below, having taken those into account in returning a finding of previous partition, non-framing of a specific issue on that score of previous partition has no impact on the adjudication of the suit as that stands covered under the umbrella issue as regards entitlement of the Plaintiffs to seek partition. 11. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties. 12. It is the settled position of law that separate possession of portions of joint family property, division of the income of the joint family property, definement of the shares in revenue records independent dealings with joint family property, which include the sale transactions of the properties in favour of the third parties-strangers as well as amongst the parties are good evidence in support of drawal of a conclusion of previous partition of the family properties amongst the parties. RSA No.300 of 2016 Page 10 of 14 {{ 11 }} 13. The Trial court, analyzing the evidence on record, in answering that issue, has discussed the evidence as under:- “On perusal of Ext.1, it reveals that properties under Khata No.223 stands recorded in the name of Bishnu Muduli, But P.W.1 in para-18 of her cross-examination has stated that it is a fact that on 26.11.2007 she has executed a sale deed in favour of Sabitri Behera in respect of Ac.0.03 decimals of land of Sala Ghara in the Sub-Registrar’s Office, Daspalla, Sabitri Behera has been possessing that land and paying rent. She has also stated that in the said sale deed, she has mentioned that the said land fallen to the share of her late husband and she is selling the same as the heir of her husband. She has also admitted in para-19 of her cross-examination that a major portion of the ancestral land have been sold away. She does not remember how much of land is left after sale and she does not know about the sale made by here father-in-law. She cannot say how much of land in what Chaka the defendant no.1 has sold after separation. Hence, the plaintiff has admitted the fact of prior partition of the ancestral landed properties. Further, the plaintiffs have not made the purchaser of the portion of the suit properties as parties in the suit.” 14. The First Appellate Court, sitting over to rule upon the sustainability of the said finding of the Trial Court, at Paragraph- 20, has stated as under:- “The assessment made by the lower Court is based on the evidence recorded in the suit. On perusal of the evidence of appellant-plaintiff, P.W.1, this Court also finds that she has, in clear terms, admitted previous partition in the family during the life time of her RSA No.300 of 2016 Page 11 of 14 {{ 12 }} husband. The sale deeds executed on behalf of respondent marked Exts.A, D, G, K, U & V are ample proof of the fact that at different times father Bishnu as well as both the sons Mahadev (Respondent No.1) and Balabhadra (late husband of plaintiff-appellant no.1) have sold lands out of the family property to the outsiders asserting their right over the same basing on pa partition in the family. P.W.1 has also admitted in her evidence to have sold property of her husband’s share. The brothers have also given signatures in each others sale deeds acknowledging their consent for sale thereunder as the land had remained recorded in the name of Bishnu in revenue records. These instances of sale and possession cannot be ignored and it proves that the brothers were separately occupying and possession the joint family property since long. The respondent also has filed an allotment sheet which has been marked as Ext.T in which the properties of the family had been divided amicably between the parents and the two sons. When such an unregistered deed showing division of the property on amicable basis among the co-sharers is in existence and plaintiff no.1 has admitted the previous partition and has further conceded that she herself has sold property claiming herself to be separate owner thereof, there lies no further scope to admit a plea of no partition raised by the plaintiffs-appellants. So, the Court below is right in holding that there had been previous partition in the family and the plaintiffs-appellants were not entitled for a further partition. Hence, there is no scope to interfere and dislodge the impugned judgment in appeal.” 15. In course of hearing, learned counsel for the Appellants (Plaintiffs) had not been able to point out any such evidence on RSA No.300 of 2016 Page 12 of 14 {{ 13 }} record to have been overlooked by the Courts below so as to say that if those would have been taken into account in their proper perspective, the finding rendered would have been to the contrary. It was also not shown that the Courts below have taken some materials, which are wholly extraneous to the evidence on record into consideration and those have thus influenced the decision as has been rendered. This Court, on going through the discussion of evidence made by the Courts below, finds that there has been sound appreciation of same in the light of the settled principles of law holding the field and thus no such error appears to have been committed by the Courts below in returning the ultimate conclusion. The concurrent findings of the Courts below as regards the previous partition is seen to have been rendered on just and proper appreciation of the evidence and this Court is not in a position to take a view that the same is the outcome of perverse appreciation of evidence. As regards non-framing of the specific issue on previous partition, it being seen that Defendant No.2, in his written statement, has pleaded all such detail facts in support of the previous partition and parties have led evidence on that score at length, there was no surprise to the Plaintiffs as it was known to them that the fate of the suit would depend on the answers to the question of previous partition, which in turn, would decide the RSA No.300 of 2016 Page 13 of 14 {{ 14 }} entitlements to the relief of partition, as prayed for by them. Therefore, the decision in suit is found to have not been adversely impacted by such non-framing of issue. For all these aforesaid, the answer to the substantial question of law is returned in favour of dismissal of this Appeal by confirmation of the finding of the Courts below that the Plaintiffs, in view of the previous partition of the joint family property, are liable to be non-suited. 16.
Decision
In the result, the Appeal stands dismissed. There shall be no order as to cost. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Oct-2023 18:01:06 RSA No.300 of 2016 Page 14 of 14