The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.359 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and preliminary decree dated 07.09.2022 & 14.09.2022 passed by the learned District Judge, Malkangiri in R.F.A. No.09 of 2019 confirming the judgment and decree dated 25.11.2019 & 28.11.2019 respectively passed by the learned Senior Civil Judge, Malkangiri in C.S. No.28 of 2019. ---- Chintu Mandal (Since Dead) by his LRs, namely, Smt.Sobharani Mandal & Others …. Appellants -versus- Smt. Jayanti Mandal & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s. Dipti Ranjan Swain, M.M. Swain Advocates For Respondents - -------
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing: 11.01.2024 :: Date of Judgment : 16.01.2024 D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have challenged R.S.A. No.359 of 2023 Page 1 of 6 {{ 2 }} the judgment and preliminary decree dated dated 07.09.2022 & 14.09.2022 passed by the learned District Judge, Malkangiri in R.F.A. No.09 of 2019. The Respondent No.1 to 3 as the Plaintiffs had filed Civil Suit No.28 of 2019 in the Court of Senior Civil Judge, Malkangiri. The suit is for partition of the properties described in the plaint by allotting 1/3rd share in their favour and for separate possession. The present Appellant and Respondent No.4 were the Defendants in the said suit. The suit having been decreed preliminarily allotting 1/3rd share from out of the suit land in favour of the Respondent No.1 to 3 (Plaintiffs) and each of the Appellant as well as Respondent No.4 (Defendants) to 1/3rd, the present Appellant (Defendant No.2) being aggrieved by the same, had carried an Appeal under section 96 of the Code. The Appeal 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. The Plaintiffs are the legal heirs of late Badal Mandal. The Defendant No.1 and 2 are the brothers of late Badal Mandal. The father of Badal Mandal and the Defendants having come from Bangladesh has settled in that area. Sudhanya Mandal is the father of the Defendant and their brother Badal whereas Felani is their mother. Page 2 of 6 R.S.A. No.359 of 2023 {{ 3 }} All of them were settled at MV-79 by the Central Government under DMK Project in the year 1967. The DMK Authorities allotted landed properties in Mouja Lachhipeta which was prior to the Survey Settlement Operation of 1991-92. After Survey Settlement Operation, the Record of Right was jointly issued in the name of the Defendants and Badal, who is the predecessor in interest of the Plaintiffs. Badal died on 16.03.2011 leaving behind his widow Plaintiff No.1 and two sons Plaintiff No.2 and Plaintiff No.3. The three brothers were living in separate mess and cultivating some land each on mutual consent. It is stated that the suit land has never been partitioned in metes and bounds. The Plaintiffs claimed that after the death of Badal, the Defendants started creating disturbance and did not allow for partition of the suit land as per the entitlement. A meeting had been called in the village for the purpose for amicable settlement and partition. The Defendants, however, did not turn up. So, the Plaintiffs had to file the suit for partition. 4. The Defendant No.1 in his written statement submitting that they are governed by the Dayabhaga School of Hindu Law, admitted that the suit land was given by the Central Government under DMK Project for rehabilitation of the family. It is however stated that Sudhanya Mandal and Badal Mandal died and as such after Survey Settlement Operation, the Record of Right of the entire suit land stood jointly in the name of the Defendants and Badal. This Defendant No.1 Page 3 of 6 R.S.A. No.359 of 2023 {{ 4 }} admitted that there was never any partition of the properties in metes and bounds. The Defendant No.2 however, contested the suit in submitting that Sudhanya Mandal and his wife Felani had four daughters, namely, Bhanumati, Shanti, Bedana and Mayarani and three sons. It is stated that the Plaintiffs are the heirs of late Badal. The Defendant No.2 mainly asserted that there was mutual partition of the properties among themselves and, therefore, further partition as prayed for by the Plaintiffs is not permissible in the eye of law. 5. The Trial Court on the above rival pleadings, has framed five issues. Rightly coming to answer the crucial issue as to the issues regarding the maintainability of the suit for partition in view of the opposition from the side of the Defendant No.2 as also the non- joinder of necessary parties, upon examination of the evidence and their evaluation, the answer has been rendered in favour of the Plaintiffs. Accordingly, the suit was preliminarily decreed. The Defendant No.2 being aggrieved by the judgment and preliminary decree, passed by the Trial Court, carried the First Appeal. The First Appellate Court addressing the contentions raised by the Defendant No.2 as the Appellants therein has again returned the findings in favour of the Plaintiffs and against the Defendant No.2. Accordingly, the judgment and preliminary decree passed by the Trial Court stood confirmed. R.S.A. No.359 of 2023 Page 4 of 6 {{ 5 }} 6. Learned counsel for the Appellant (Defendant No.2) submitted that the finding of the courts below even though is concurrent on the point that there had been no previous partition of the properties amongst the parties and as such the suit for partition at the instance of the Plaintiffs is maintainable; the same is the outcome of perverse appreciation of evidence. He submitted that on the face of the overwhelming evidence as to separate living of the parties being separated mess in separate enjoyment of the properties in specific parcels stretching over quite a long period, the Courts below ought to have held that there was a complete partition of the properties amongst the parties. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 7. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 8. In the absence of any documentary evidence in support of the partition, on the face of oral evidence on record that the parties are in separate possession of some parcels of land and they are staying separately under separate mess, when the Record of Right relating to suit land stands joint and rent is accordingly paid, the Courts below in my considered view having returned the finding that there being no proof of the factum of completed partition of the suit properties amongst the parties, the present suit filed by the Plaintiffs for partition is maintainable, did commit no mistake. Page 5 of 6 R.S.A. No.359 of 2023 {{ 6 }} 9. In that view of the matter, it is seen that there surfaces no such perversity in the above conclusion against the partition. The Defendant No.2 having taken the plea of completed partition was carrying the burden of proof of discharging said fact by the leading evidence, which he has failed to do. Therefore, the suit filed by the Plaintiffs having been rightly decreed preliminarily allotting them 1/3rd share and each of the Defendants to 1/3rd over the suit properties, there surfaces no such substantial question of law for being answered meriting admission of this Appeal. 10. In the result, the Appeal stands dismissed. There shall be, however, no order as to cost. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 17-Jan-2024 11:37:54 R.S.A. No.359 of 2023 Page 6 of 6