Orissa High Court
Lakhana Nayak And Anr. vs Basudev Swamy And Ors. on 3 July, 1990
Equivalent citations: AIR1991ORI33, AIR 1991 ORISSA 33
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. Defendants 1 and 2 in a suit for partition are the appellants.
2. Plaintiff alleged that when the temple for the Deity was constructed sometimes in 1962, the raiyats of the village were required to render help for the purpose of seva puja and bhog of the Deity. The villagers agreed to give Schedule-A lands for the purpose. A trust deed was created and possession of lands was surrendered and plaintiff being the President of the trust remained in possession of the lands and the usufructs of the lands were being utilized for the purpose of seva puja. The villagers were earlier managing the affairs of these Koth lands through a committee selected by them and the committee had the authority to make alienations in case of necessity. The said committee alienated 66 cents out of plot No. 568 to Magata Nahak and said Magata Nahak had been in possession of the same. The villagers also had alienated some lands to village schools as mentioned in Schedule-C and had set apart lands covered by Schedule-B for the common purpose and, therefore, those lands are not liable to be partitioned. So far as plot No. 99 is concerned, according to the plaint though it is recorded as 3.48 acres but the koth was in possession of only 2.00 acres and remaining 1.48. acres of land belongs to other raiyats and does not belong to the Koth. It is also alleged that some of the lands were given to Deity Raghunath Swamy and the said lands are also not liable to be partitioned. It is the further case that there were 38 shares in respect of the koth lands and 60 persons had been recorded, but by virtue of transfers made to different persons 47 persons owned 38 years (sic) in the koth property. Therefore, leaving the plaintiff 37 other shares were enjoyed by 43 persons. It is also alleged that Ramachandra Nayak who had initiated a proceeding under S. 145, Code of Criminal Procedure, though had been declared to be in possession of land appertaining to plot No. 99, but in fact, he was not in possession of the same and the said decision of the Magistrate is not binding on the plaintiff. In paragraph 12 of the plaint, it is alleged that the suit is being filed under Order 1, Rule 8, Code of Civil Procedure. It was prayed that a preliminary decree be passed dividing the suit property into 38 shares and delivering l|/2 shares to defendants 1 and 2 and rest to the plaintiff and defendants 3 to 9 as all other shareholders have transferred their shares in favour of the plaintiff.
3. Defendants 1 and 2 contested the suit and denied the allegations made in the plaint. According to their written statement their father Ramachandra and one Khetra got themselves separated from the villagers taking survey No. 99 measuring 3.48 acres towards their share about 30 years prior to the filing of the written statement and possessed the same separately. In a subsequent partition between Ramachandra and Khetra, Ramachandra got 1.60 acres while Khetra got the remaining portion of plot No. 99. It was also averred that villagers had donated their lands to the plaintiff Deity creating a trust deed on 21-11-1963 whereafter the plaintiff was possessing the lands through bhag tenants. So far as the lands covered by Schedules-B and C are concerned, the plaint case was admitted, but according to the defendants survey No. 99 was correctly recorded in the Record-of-Rights and their possession in respect of survey No. 99 declared by the Magistrate was legal and justified. It was also pleaded that they being in exclusive possession of the land had perfected their title by adverse possession. In the written statement a positive stand had been taken that the suit was bad for nonjoinder of necessary parties since some of the raiyats had not executed any document of gift in favour of the Deity and yet they had not been made parties to the suit for partition, the raiyats being Patta Debi, Rahas Debi and Chakrapani Sahu.
4. The learned Trial Judge framed only 2 issues, namely (i) if there was a prior partition of the suit properties? If so, if the survey No. 99 fell to the share of defendants 1 and 2? and (ii) to what relief, if any, is the plaintiff entitled? On issue No. 1, the learned Trial Judge came to the conclusion that the plea of partition set up by defendants 1 and 2 was a myth having no legs to stand upon. In the self-same issue he also came to hold that the plea of adverse possession set up by defendants 1 and 2 had not been established. In view of the aforesaid findings on issue No. 1, the learned Trial Judge in issue No. 2 held that defendants 1 and 2 would be entitled to their due share in the suit property and, therefore, directed for partition. Hence the present appeal.
5. The learned counsel for the appellants raises three contentions in assailing the judgment and decree of the learned Trial Judge:--
(i) The suit being one under Order 1, Rule 8, Code of Civil Procedure, and the requirements of the said provision not having been complied with, the suit must fail;
(ii) In view of the positive stand of the defendants in the written statement with regard to non-joinder of necessary parties, an issue should have been struck and parties should have led evidence and the Court should have considered the same. The suit must fail on that score also; and
(iii) The finding of the learned trial Judge on the question of previous partition is contrary to the evidence on record and accordingly cannot be sustained.
It is not necessary for me to go into the third question since this appeal can be disposed of on consideration of the first and second contentions. _
6. There cannot be any manner of dispute that when a suit is filed invoking the provision of Order 1, Rule 8 of the Code of Civil Procedure, the said provision must be fully complied with. In view of the contention raised by the earned counsel for the appellants, I carefully examined the order-sheet of the lower Court and find sufficient force in the contention of the learned counsel. On examining the order-sheet as welt as the records of the case, I find that though by order No. 9, dated 1-10-1975, the Court had directed for publication of the notice in Weekly Nabina, but there has been no material threafter either in the order-sheet or in the record to indicate that such notice had in fact been published. Since the notice has not at all been published, question of further finding out whether there has been due compliance of the provision of Order 1, Rule 8, Code of Civil Procedure, cannot be gone into. In the absence of any material that the notice was published as directed by the learned trial Judge, there is no other option than to hold that the provisions contained in Order1, Rule 8, Code of Civil Procedure have not been complied with and consequently, the subsequent proceedings including disposal of the suit must be held to be bad in law. The judgment of the learned trial Judge is liable to be set aside on this ground alone.
7. Coming to the question of non-joinder of necessary parties, 1 also find sufficient force in it. In paragraph 14 of the written statement, such a plea has been definitely taken, but unfortunately, the learned trial Judge has not framed any issue on that score and as a result of that the matter has not been gone into at all. If the defendants establish that there has been non-joinder of necessary parties, the suit will obviously fail. In view of my conclusion on the question No. 1, since the suit is going to be remanded to the trial Court, I would further direct that after complying with the provisions of Order 1 Rule 8, Code of Civil Procedure, the learned trial Judge would frame an additional issue as to whether the suit is bad for non-joinder of necessary parties and will permit the parties to lead evidence on that score. It is, however, made clear that it would be open for the plaintiff to ask the Court for impletion of those persons who are alleged to be necessary parties to the suit and on such a petition being filed, appropriate orders will be passed by the learned trial Judge.
8. In the premises, as aforesaid, I do not think it necessary to consider the evidence on the question of prior partition as the impugned judgment cannot be sustained and the suit will now be relegated to the stage of due compliance of Order 1, Rule 8, Code of Civil Procedure.
9. In the result, the impugned judgment and decree of the learned trial Judge are set aside. The suit in question is remanded to the learned trial Judge who will dispose of the same in accordance with law after first complying with the provisions of Order 1, Rule 8, Code of Civil Procedure. This appeal is accordingly allowed, but there will be no order as to costs.