Orissa High Court
Sankhali Dhal (And After Him), Gadadhar ... vs Nilamani Dei And Ors. on 22 March, 1994
Equivalent citations: AIR1994ORI298, AIR 1994 ORISSA 298
JUDGMENT S.C. Mohapatra, J.
1. Plaintiffs are appellants against dismissal of suit for partition.
2. Plaintiffs claim to be legal representatives of two daughters of Bana Samal who was admittedly the owner of the disputed properties. Relationship of parties as claimed by plaintiffs is as follows:
Bana Samal ________________________________________|____________________________________ | | | | | Gundi= Dinabandhu Gangu - Makha Mina W.Rodana W. Suka _________________|___________ ____ | | | | ______________________ Sankhali Raghunath Subern Balan | \ | \ | \ Nilamani= Radhamani= H. Musa H. Bamadev ______ __________ | | Kalandi Bigyan
3. Case of plaintiffs is that Bana had three sons and two daughters. One son Gundi died in 1927 leaving behind widow Rodana who having died in the year 1973 his line is extinct. Defendants are legal representatives of another son Gangu who died in the year 1945. Dinabandhu, another son died in the year 1975 without any legal representative of his own. Thus, plaintiffs being legal representatives of Makha and Mina, two daughters of Bana who had died in 1928 and 1925 respectively have equal share in the properties of Bana with the two daughters of Gangu for which the suit for partition has been filed.
4. Case of contesting defendants in short is that Makha and Mina are in no way related to Bana and have no interest in the properties of Bana. On death of Dinabandhu, Gangu's legal representatives are entitled to the entire ancestral properties of Bana.
5. Dinabandhu during his lifetime sold certain properties of Bana. Therefore, daughters of Gangu filed Title Suit No. 17 of 1974 for partition and for relief under Section 4 of the Partition Act. Alleging that Dinabandhu had executed a last will in favour of sons of Nilamani and Radhamani, daughters of Gangu, they filed a proceeding for probate of the last will which was registered as Title Suit No. 33 of 1977.
6. These three suits were heard together. Title Suit No. 17 of 1974 where appellants were defendants was treated to be the main suit with reference to which, one act of evidence of witnesses was recorded. Trial Court dismissed the probate proceeding in T.S. No. 33 of 1977 and no appeal having been filed the judgment has become final. On account of valuation of Title Suit No. 17 of 1974 an appeal was filed by the appellants in the court of the District Judge, Keonjhar, while this appeal was filed in this Court. Appellants filed an application for transfer of the appeal from Court of District Judge to this court for being heard together with this appeal. On the appeal being transferred was registered as First Appeal No. 43 of 1980 in this Court. Unfortunately, First Appeal No. 43 of 1980 was dismissed for non-compliance of a peremptory order. To recall the dismissal, an application was filed but presentation being defective the same was returned back for being properly presented. Thereafter, application not being presented again, dismissal of First Appeal No. 43 of 1980 became final.
7. Findings in two suits being one and appeal against decree in one suit having been dismissed, such finding between the parties would be res judicata. Therefore, at the beginning of the hearing of the appeal, Mr. Ashok Mukherjee, learned counsel for the appellants, fairly brought to my notice the circumstances under which the appeal was dismissed. He stated that while he was not a senior Advocate, he was acting on behalf of the appellants and got back the application for restoration to present it again. He handed over the application to his clerk. However, it is now found that the same has not been presented again. When he became a senior Advocate, he could not keep trace of the application and the Advocate's clerk is now dead. Thus such application remained unattended to be discovered while preparing this appeal for hearing. In such circumstances he prayed that permission may be accorded to appellants to present the application so that both the appeals can be heard together as appellants should not suffer in the circumstances indicated.
8. Considering submission of Mr. Mukherjee, I find there is sufficient cause for not filing an application for restoration of First Appeal No. 43 of 1980 afresh. However, before permitting him to file the same following the procedures relating to limitation and other steps, I called upon him to make submission on merits so that in case I am satisfied that there would be prima facie merit in this first appeal, I would consider to permit him to file the application as otherwise this appeal would be barred by res judicata on account of dismissal of First Appeal No. 43 of 1980. If there would be no merit, permission to appellants would be only of academic interest. Therefore, without giving importance to res judicata, I heard merits of this appeal.
9. Since appellants claim share in the properties of Bana Samal as legal representatives of daughters of Bana which is contested by defendants on the ground that Bana has no daughter and accordingly, the legal representatives are in no way connected with Bana's properties, main question for consideration is whether Makha and Mina are the two daughters of Bana. In case this is answered against appellants, suit for partition at their instance would fail.
10. For proving relationship of Makha and Mina with Bana as daughters, requirements of Section 50 of the Evidence Act are to be satisfied. Admittedly there is no document directly indicating that Makha and Mina are daughters of Bana Samal. Therefore, relationship would have to be found from oral evidence.
11. Trial court not having considered oral evidence properly, judgment became vulnerable. However, I can consider the same in appeal. In this regard, DWs 1 and 7 are the two material witnesses. Other witnesses like DWs 3 and 6 though speak about Sankhali as per the genealogy being nephew of Dina-bandhu, there is no indication in their evidence how they acquired the special knowledge about the relationship. Accordingly, their evidence would not be material. DW7 is Sankhali himself. His evidence is self-serving and as such should be accepted with caution by seeking corroboration. Mr. Mukherjee has put strong reliance on evidence of DW 1 who is a villager and neighbour of Bana. He is also aged 75 years old at the time of deposition- However, excepting that he is a neighbour and a co-villager, there is no relationship with Sana's family, his evidence to form opinion about relationship cannot be inferred in absence of some special circumstances under which he could form such opinion. No such special circumstance has been stated by him to influence me to accept his opinion. On independent consideration of evidence on record, I am not satisfied that Makha and Mina are daughters of Bana and as such conclusion of trial court is correct and called for no interference.
12. Mr. Mukherjee submitted that ACO-49 dec. of land in mouza-Tartara in Khata No. 81/2 had been gifted to Makha in the marriage altar. The said land has since been reduced to an area of 45 decimals which has been recorded in name of Sankhali and others as plot No. 20 in Khata No. 178. This land of Bana being in possession of Sankhali for much more than 12 years as of right from the time of Makha's marriage and having been recorded in names of Sankhali and others, defendants cannot make a claim over the same. As I find this area is not included in both the suits for partition although in the Written statement filed by the appellants, they have referred to the gift in the marriage altar. Said land not being subject matter of partition or relief under Section 4 of the Partition Act, right of appellants if any, would not be affected by decisions in these two suits and there would not be any res judicata against appellants to claim the land if there would be any dispute in respect of these properties in future. Same will be adjudicated on its own merits.
13. In view of the aforesaid discussion this appeal has no merit. Accordingly though there is merit in submission of Mr. Mukherjee that he should get opportunity to file the application to recall the peremptory order in first appeal No. 43 of 1980, I find that such permission would be of academic interest only for which I refuse permission at this stage.
14. In result, appeal is dismissed. There shall, however, be no order as to costs.