Bhikari Charan Rout vs Biswanath Lenka And Others on 16 May, 2025

[Cites 4, Cited by 0]

Orissa High Court

Bhikari Charan Rout vs Biswanath Lenka And Others on 16 May, 2025

This is an appeal by the plaintiff against a reversing judgment. The suit filed by the plaintiff for injunction against defendant Nos. 1 and 2 was decreed by the trial court but was reversed and dismissed in appeal. Page 1 of 14

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The case of the plaintiff, briefly stated, is that the suit schedule property belonged to one Bhajani in one branch and Puna, Guri and Muli, sons of late Madan in another branch, whose names were recorded in the sabik ROR of 1930 settlement. In an amicable partition between them in 1940, the sabik plot No.632 measuring Ac. 0.09 decimals and Plot No. 633 measuring Ac.0.032 decimals of Khata No.304 were allotted to Puna, Guri and Muli and they, being members of the joint family, constructed their dwelling house, excavated tank and planted trees. While they were in joint possession, Guri died in 1958 leaving his wife Jhumpei and daughter Chanda. Puna died in 1979 leaving behind the plaintiff-Bhikari as his only son. He had two daughters, Malati and Ratnamani. Malati died prior to Puna in 1963 leaving behind her sons and daughter, who were arrayed as defendant Nos. 8 to 14. Ratnamani was arrayed as defendant No.7. Muli died in 1982, leaving behind Babaji and Kusuma, his son and daughter respectively. As a portion of the dwelling house Page 2 of 14 was demolished during 1982 flood, the plaintiff was residing in another portion using the rest portion as his Bari and was growing vegetables. The cause of action arose when defendant Nos.1 and 2 forcibly stacked building materials over a portion of the suit land and tried to construct a fence. On protest by the plaintiff, they gave out that they have purchased the property along with tank and house from Muli, father of defendant Nos. 3 and 4. The plaintiff therefore, filed the suit originally for partition and repurchase of the share of Muli purchased by defendant Nos.1 and 2 and for permanent injunction.

4. Defendant Nos. 1 and 2 contested the suit by filing written statement, while other defendants were set ex parte. The defendants contended that in the 1930 settlement, suit sabik Plot No.632 was recorded as 'Gohira' and 633 was recorded as 'Biali Dofasali' and were not homestead lands. In the remarks column of the ROR, the names of Puna, Guri and Muli were recorded indicating their possession. During their lifetime, the three brothers partitioned their joint family properties along with the suit land by metes and bounds. Guri died in the Page 3 of 14 year 1951 and after his death, his wife-Jhumpei sold his share in both the sabik plots to Muli vide RSD dated 19.12.1970 and delivered possession. Muli, after purchase constructed a house over the suit land and started residing there. Puna resided in his ancestral dwelling house and Muli shifted to the suit land after purchase from Jhumpei. The ancestral dwelling house of the plaintiff was not on the suit land at any point of time. While Muli was in possession of Ac. 0.28 decimals, out of the suit schedule properties, being the karta of the family, he sold Ac.0.14 decimals for legal necessity from both the plots to defendant No.2 vide RSD dated 06.04.1981 and Ac.0.14 decimals from both the plots to defendant No.1 vide RSD dated 07.04.1981 for consideration and delivered possession. Since then, defendant Nos. 1 and 2 are in peaceful possession of the suit land. Guri having died in 1951, his daughter Chanda had no interest over the suit property but had filed the suit on the ill advise of outsiders.

5. Be it noted that the trial Court framed 11 issues. After considering the oral and documentary Page 4 of 14 evidence, the suit was preliminary decreed. The matter was however carried in appeal before the Additional District Judge, Jagatsinghpur in T.A. No.113 of 1997. By judgment dated 31.03.2001, the appeal was allowed by setting aside the decree of the trial Court and remanding the suit for fresh disposal to decide Issue Nos.7, 8, 9 and

10. After remand however, the plaintiff amended his plaint to confine his prayer only to the relief of permanent injunction against defendant Nos.1 and 2. Under such circumstances, the trial Court, upon remand, considered Issue No.6 for determination, which is reproduced bellow:-

"Whether there was any partition of the ancestral joint family properties of the plaintiff and the defendant Nos. 3 to 9 between Puna, Guri and Muli, three sons of Madan."

6. After analyzing the oral and documentary evidence, the trial Court disbelieved the claim of the contesting defendants regarding partition of the suit property and held that the same is joint family property of Puna, Guri and Muli. It was also held that there was a residential house over Hal Plot No. 809 measuring Ac.0.14 decimals, while Hal plot Nos. 807 and 808 are used as Bari lands. All these plots correspond to sabik Plot Nos. Page 5 of 14 632 and 634 being recorded as 'Gohira' and 'Biali Dofasali'. The plots were converted to homestead plots and residential house was constructed besides digging a well and raising fruit bearing trees. The claim of the defendants of Guri having died in the year 1958 was disbelieved. On such finding, the trial Court, on remand, decreed the suit by permanently restraining defendant Nos. 1 and 2 in respect of the suit property.

7. Defendant Nos. 1 and 2 preferred appeal before the 1st Appellate Court. After re-appreciating the oral and documentary evidence in detail, the 1st Appellate Court found that in the C.S. ROR (Ext.2), C.S. Plot No. 632 Ac.0.9 decimals was recorded as 'tank' and 633 measuring Ac.0.32 decimals was recorded as 'Biali Dofasali'. As such, the suit land was not homestead land but cultivable land and a tank situated far away from the ancestral dwelling house of the plaintiff and other defendants. The finding of the 1st Appellate Court was also based on the admission of the plaintiff in his cross- examination that the suit land was in a different place. The 1st Appellate Court therefore, was not inclined to Page 6 of 14 accept that the suit land constituted joint dwelling house of the plaintiff and other co-sharers. The plaintiff not having proved that the nature of the land was converted to homestead land as per Section 8 of the OLR Act, the same would not be covered under the purview of Section 4 of the Partition Act or Section 44 of the T.P. Act. Basically on such finding, the 1st Appellate Court having found that the ingredients required to justify the claim of pre- emption/repurchase by co-sharer to be absent and no relief of partition having been sought for by the defendant Nos. 1 and 2, such right could not be granted. Moreover, in the absence of evidence regarding existence of dwelling house/homestead land, the contesting defendants also could not be injuncted from the suit land, which they were also held to have purchased validly from Defendant Nos.3 and 4. The appeal was thus allowed and the judgment and decree passed by the trial Court was set aside.

8. Being further aggrieved, the plaintiff has filed the present appeal, which was admitted on the following substantial questions of law:

"Whether simple suit for injunction is maintainable against a stranger purchaser of the Page 7 of 14 undivided dwelling house belonging to the joint family?

Whether the co-sharer of the undivided dwelling house can sue for partition and opt for pre-emption when the stranger -purchaser failed to seek relief of partition of his purchased land in the undivided dwelling house?"

9. Heard Mr. J. Bhuyan, learned counsel for the plaintiff-appellant and Mr. D.P. Mohanty, learned counsel for the defendant Nos. 1 and 2-respondents.

10. Mr. Bhuyan would argue that the 1st Appellate Court committed manifest error in not treating the suit land as dwelling house in view of the fact that the expression 'dwelling house' includes not only actual building where the family members reside but also other structures, adjacent buildings, garden, courtyard, orchard etc. The 1st Appellate Court ignored the fact that the nature of the land as existing in 1930 had changed by efflux of time, in view of the mentioned thereof as 'Ghara' and 'Gharabari' in the 1985 ROR. As such, defendant Nos. 1 and 2 being stranger purchasers have no right to possess any portion of the suit land. Even if a co-sharer had alienated his share in the dwelling house, a stranger purchaser can only file a suit for partition but cannot Page 8 of 14 claim possession along with other family members. The plaintiff being a co-sharer can seek the relief of pre- emption, which was not considered by the 1st Appellate Court. Since 1st Appellate Court was himself not satisfied with the evidence regarding possession he should not have reversed the findings of the trial Court.

11. Per contra, Mr. D.P.Mohanty would argue that even accepting that the suit land was recorded as 'Gharabari', the same, ipso facto does not make it a 'dwelling house' within the meaning of Section 4 of the Partition Act or Section 44 of the T.P. Act. Homestead only means that the land is capable of being converted to residential house but unless there is clear evidence of existence of dwelling house, mere recording of the nature of the land as homestead cannot persuade the Court to grant the desired relief. The plaintiff singularly failed to prove the necessary ingredients for exercise of the claim of pre-emption for which the 1st Appellate Court rightly reversed the finding of the trial Court.

12. As already stated, the plaintiff upon remand, amended his plaint and confined it to the relief of Page 9 of 14 permanent injunction. The first question that arises for consideration is whether a suit for injunction simplicitor is maintainable without seeking declaration of title. It is borne out from the pleadings of the parties that the suit land was sold by defendant Nos. 3 and 4 to defendant Nos. 1 and 2. The plaintiff's case is that on such basis defendant No.1 and 2 attempted to come over the suit land. Thus, this is a case where the claim of title of the plaintiff over the suit land was in dispute. Since during hearing of the suit as well as the 1st Appeal, the claim was raised for granting the relief of pre-emption, this presupposes admission of the purchase of the suit land by defendant Nos.1 and 2. Under such circumstances, the plaintiff cannot simply seek the relief of permanent injunction against the lawful owner without seeking declaration of title.

13. Coming to the other ground raised, it is seen that the 1st Appellate Court meticulously analyzed the oral and documentary evidence adduced by the parties and took note of the fact that the suit plots were recorded as 'tank' and 'Biali Dofasali' in the sabik settlement. Thus, at Page 10 of 14 that time, one of the plots was recorded as a tank and the other was a cultivable land. The plaintiff has not adduced any evidence to show as to when he constructed a dwelling house over the suit land, if at all. Merely because the Hal ROR mentions the nature of the suit land as homestead does not ipso facto mean that a dwelling house exists over the suit land. Significantly, Shri Bhuyan has cited a judgment of this Court in the case of Bhim Singh Vrs. Ratnakar Singh (S.A. No. 335 of 1966, decided on 11.08.1970) to contend that a dwelling house includes all necessary appurtenances including homestead plots, bari and even tank attached to it. Therefore, the land being recorded as 'homestead' would partake the nature of dwelling house.

14. After carefully going through the judgment, this Court is unable to accept the above argument for the reason that in the said case each of the co-sharers had raised separate houses but were not living under a common roof. That apart, the Court referred to the meaning of 'dwelling house' as delineated in several previous judgments and held as follows:-

Page 11 of 14

"A family dwelling house consists of the house itself and all necessary appurtenances required for beneficial enjoyment of the house, neigbouring homestead plots including the bari and even a tank attached to the residential house in a compact manner have been included in the meaning of "dwelling house." On many occasions it has been held that even a vacant site upon which there used to be the family dwelling, but the same has been pulled down or has fallen, would continue to be dwelling house until parties have abandoned their intention to raise residential structures thereon."

15. It is evident that all necessary appurtenances attached to the family dwelling house would be included in the meaning of dwelling house. This obviously does not mean that the so-called appurtenances, neighbouring homestead plots, bari tanks etc. can independently or bereft of the family dwelling house, be treated as dwelling house, to wit, a tank attached to a house may form part of the house but a tank per se, in the absence of house, cannot be treated so. The cited case therefore, has no application to the present case. In the case at hand, the plaintiff failed to prove the existence of a dwelling house over the suit land. The 1st Appellate Court has taken note of the admission of the plaintiff in his cross- examination that his ancestral dwelling house was in Page 12 of 14 Ward No.11 while the suit land was located in Ward No.10. Further, his shop house was in Ward No.9 and his father had purchased the same twenty years ago and he was residing in their house. He also admitted that the ancestral dwelling house was at the upper end of the village while the suit land was at the other end. The 1st Appellate Court therefore, held and rightly so, that there was no evidence of existence of a joint dwelling house of the plaintiff and other co-sharers over the suit land. This Court fully concurs with such finding along with the finding that under such circumstances, neither Section 4 of the Partition Act nor Section 44 of the T.P. Act can be invoked. Moreover, the above finding is a finding of fact. Nothing has been demonstrated before this Court to show as to how such finding is perverse or otherwise erroneous. The 1st Appellate Court incidentally also held that the contesting defendants could not establish that the suit properties had been partitioned among the three brothers. Nevertheless, it was held that the title in respect of the suit land, had passed to the contesting defendants on the strength of the registered sale deeds executed in their Page 13 of 14 favour by their vendors, which had never been challenged by the plaintiff. Thus, in the absence of any evidence regarding existence of dwelling house over the suit property and scanty evidence regarding possession, the 1st Appellate Court rightly held that the relief of permanent injunction could not be granted. It was also held that the right of pre-emption, if at all, would arise only when the stranger purchaser files suit for a partition.

16. In view of the foregoing discussion, this Court finds no error in the findings of the 1st Appellate Court so as to be persuaded to interfere. Resultantly, the appeal is held to be devoid of merit and is therefore, dismissed. There shall be no order as to costs.

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Sashikanta Mishra, Judge B.C.Tudu, Sr. Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2025 13:16:54 Page 14 of 14

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Orissa High Court