Orissa High Court
Muchu Munda And Another vs Dasarath Munda on 16 April, 2018
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.72 of 1989
From the judgment and decree dated 3.11.1988 and 11.11.1988
respectively passed by Shri B.N. Mishra, learned Additional District
Judge, Sambalpur in T.A. No.9/7 of 1985-88 reversing the judgment
and decree dated 29.11.1984 and 6.12.1984 respectively passed by
Shri A.C. Mohanty, learned Subordinate Judge, Sambalpur in T.S.
No.50/18 of 1982-83.
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Muchu Munda and another .................... Appellants
---versus--
Dasarath Munda ..................... Respondent
For Appellants : Mr. Budhiram Das, Advocate
For Respondent : Mr. D.P. Mohanty, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :05.04.2018 │ Date of Judgment:16.04.2018
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Dr. A.K. Rath, J.Defendants are the appellants against a reversing judgment.
2. Plaintiff-respondent instituted the suit for partition. The following genealogy would show the relationship of the parties.
Ganga Munda (dead)
Lengda Munda (dead) Tura Munda (dead)
Muchu Munda Dasarath Munda
(D-1) (Plaintiff)
The case of the plaintiff was that one Ganga Munda was the common ancestor of the plaintiff and defendant no.1. He died leaving behind him two sons, namely, Lengda and Tura. Plaintiff is the son of Tura. Defendant no.1 is the son of Lengda. They 2 constituted a joint Hindu family. The suit property is their ancestral property. After death of Legda and Tura, plaintiff and defendant no.1 succeeded to the properties. The suit property had been jointly recorded in the last settlement. There is no partition by metes and bounds, although they have been in separate possession of different parcels of land by amicable arrangement. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
3. The defendants filed written statement stating inter alia that Tura, father of the plaintiff, was adopted by one Goutam. After adoption of Tura, Goutam was blessed with a son. Thereafter, Goutam gave four acres of land to Tura on 15.2.30. The land was recorded in the name of Tura. In 1931-32, the father of defendant no.1 gave three acres of land to Tura after partition of the property. Since then, Lengda and Tura remained in separate possession of their respective shares. In 1942, Tura again claimed the entire Jamduli land which was possessed by the plaintiff and defendant no.1. The matter was compromised. The entire Jamduli land was allotted to Tura by means of an agreement dated 24.4.42. In the said agreement, plaintiff's father acknowledged previous partition during life time of Ganga. After death of Tura, the plaintiff succeeded to the properties. Plaintiff is not a member of the joint family. Plaintiff and defendant no.1 remained in separate possession of their respective shares having separate dealings and transactions. Defendant no.1 sold some plots to defendant no.2. In 1961, the plaintiff also sold one plot to defendant no.2. In view of the completed prior partition, the suit was not maintainable.
4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court came to 3 hold that defendants had failed to prove that Tura was adopted by Goutam. There was prior partition of the joint family property of the parties. Held so, it dismissed the suit. The plaintiff appealed before the learned District Judge, Sambalpur which was subsequently transferred to the court of the learned Additional District Judge, Sambalpur and renumbered as T.A. No.9/7 of 1985-88. Learned lower appellate court allowed the appeal holding inter alia that there was no prior partition of the suit properties.
5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.D, E and F of the appeal memo. The same are:
"(D) Whether any separate possession, separate dealings of properties and separate transactions by parties prove jointness of status ?
(E) Whether the learned lower appellate court is justified in reversing the findings of the learned trial court as regards completed prior partition without discussing the findings of the learned trial court without assigning any cogent reasonings ? (F) Whether Ext.D can be interpreted as a document to prove completed prior partition between parties or a document to prove jointness of status between parties ?"
6. Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellants, submitted that there was prior partition of the suit schedule properties by metes and bounds.
7. Per contra, Mr. D.P. Mohanty, learned counsel, on behalf of Mr. B.H. Mohanty, learned Senior Advocate for the respondent, submitted that learned lower appellate court is quite justified in coming to a conclusion that there is no partition. There is no perversity in the said finding.
48. Learned lower appellate court held that except evidence of D.W.1, there is no evidence on record with regard to prior partition. The suit property had been jointly recorded in the R.O.R. vide Ext.A. They used to pay rent vide Ext.B series. In case there was completed partition of the suit property by metes and bounds, there was no reason why the parties could not get their names mutated in respect of their respective shares or get their shares of land recorded in their names separately in the current settlement. According to D.W.1, the plaintiff's father was given 2 ½ acres of land, whereas his father got six acres of land, which is evidently unequal. From Ext.D, it is difficult to come to the conclusion of completed prior partition in the absence of any clear and cogent evidence of partition of the suit property by metes and bounds. The defendants have also not proved the sale deeds in which the defendant no.1 and the plaintiff sold the land to the defendant no.2. Merely because the parties are in long separate possession of different parcels of land, it does not rebut the presumption of jointness. It came to hold that there was no partition of the suit schedule land. There is no perversity in the said finding. The substantial questions of law are answered accordingly.
9. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 16th April, 2018/Basanta