Civil Suit No. 07/533 of 2015 · The High Court · 2022
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.322 OF 2022 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 30th August 2022 and 12th September 2022 respectively passed by the learned 1st Additional District Judge, Baripada in R.F.A. No.24 of 2021 confirming the judgment and decree dated 27.10.2021 and 10.11.2021 respectively passed by the learned 2nd Additional Senior Civil Judge, Baripada in Civil Suit No.07/533 of 2015/2020. ---- Sangita @ Sangeeta Behera …. Appellant -versus- Minaketan Behera & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ================================================= For Appellant - For Respondents -
Legal Reasoning
Mr. B.K. Sharma, Advocate. ------------------------- CORAM: MR. JUSTICE D. DASH Date of Hearing : 20.12.2023 :: Date of Judgment: 08.01.2024 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 decree dated 30th August 2022 and 12th September 2022 respectively passed by the learned 1st Additional District Judge, Baripada in R.F.A. No.24 of 2021. RSA No.322 of 2022 Page 1 of 5 {{ 2 }} The Appellant as the Plaintiff had filed Civil Suit No.07/533 of 2015/2020 and for partition. The suit having been dismissed, as the unsuccessful Plaintiff, she had carried Appeal under section-96 of the Code which too has been dismissed. Hence, the present Second Appeal is at the instance of the Appellant(Plaintiff) who has remained unsuccessful in both the Courts below being non-suited. 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 Plaintiff’s case is that the Defendant No.1 is her father, whereas the Defendant No.2 is her sister. She has no brother. It is stated that they were living in undivided coparcenery family (quoted). It is stated that the suit land and other lands are the ancestral joint family properties which originally belonged to the grandfather of the Plaintiff namely, Akhay. In a partition which took place between Defendant No.1 and his brothers in Title Suit No.25 of 1995; the suit land was allotted to the share of the Defendant No.1. It is further stated that at the time of marriage of the Plaintiff, the Defendant No.1 had orally partitioned the suit property between him and his two daughters which include the Plaintiff. He had kept the land under Plot No.355 appertaining to Khata No.142/88 measuring Ac.0.22 decimals and allotted the land under Plot No.530 RSA No.322 of 2022 Page 2 of 5 {{ 3 }} appertaining to Khata No.142/97 measuring an area of Ac.0.20 decimals to the Plaintiff and another land which had been purchased at Similiguda in the District of Koraput to Defendant No.2 in the name of her husband in addition to payment of a sum of Rs.3,95,000/- towards her share. The Plaintiff’s claim is that after getting the suit land, she with her husband have spent a sum of Rs.2,80,000/- and developed the suit land in the year 2005 by putting up a market complex wherein the shop rooms are being rented out to different tenants. The dispute started when the Defendant No.1 wanted to bring one widow as his caretaker-cum-second wife, during the lifetime of the first wife and he wanted to transfer all the property to that stranger widow. The Plaintiff when opposed to that, the Defendant No.1 forcibly disposed the Plaintiff from the shop rooms with the help of local goondas which compelled the Plaintiff to file the suit for partition. 4. The Defendant No.1 in his written statement claims to have got the suit land in his share in a partition suit i.e. C.s. No.25 of 1995; wherein the final decree has been passed. He, therefore, claims the suit property to be his separate and exclusive property over which, he denies any sort of claim of the Plaintiff. The Defendant No.2 claims to have developed the suit land at his own cost and constructed the shop rooms and earning by renting out those by inducting different persons as tenants therein. The Defendant No.1 was an employee of NALCO and after retirement that is the only source of income for him. It is stated that the Defendant No.1 while in Page 3 of 5 RSA No.322 of 2022 {{ 4 }} service had entrusted the house of the Plaintiff to looking after the shop rooms and collected rents; but he committed breach of trust. The Defendant No.1 has made certain other allegations as to how and in which ways he was being harassed by the Plaintiff and her husband which have absolutely no relevance for the suit. 5. The Trial Court on the admitted case dismissed the suit holding the Plaintiff, married daughter of the Defendant No.1 to be having the right over the suit property so as to claim partition during the lifetime of her father i.e. the Defendant No.1. The First Appellate Court has affirmed the above view taken by the Trial Court. 6. Mr. B.K. Sharma, learned Counsel for the Appellant (Plaintiff). I have perused the judgments passed by both the Courts below. 7. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 8. The Plaintiff is the married daughter of the Defendant No.1. Indisputably, in partition suit i.e. C.S. No.25 of 1995 in which the final decree has been sealed and signed, the Defendant No.1 has been allotted with the suit land towards his share. The status of the joint family, constituting the Defendant No.1 and other co-sharers had ceased at least Page 4 of 5 RSA No.322 of 2022 {{ 5 }} from the time of institution of the suit, if not before. The suit land having fallen in the share of the Defendant No.1, it remained in his hand as his separate property. On the anvil of the well settled law as decided in the catena of decisions, the Plaintiff during the lifetime of Defendant No.1 has no right over the property so as to claim partition. On this ground alone, the Plaintiff’s suit is liable to be dismissed which have rightly been so held by the courts below. 9. In the wake of aforesaid, this Court is of the considered view that there arises no such substantial question of law meriting admission of this Appeal. 10. In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 12-Jan-2024 15:25:57 RSA No.322 of 2022 Page 5 of 5