Orissa High Court
Sri Pitambar Kar (Dead) After Him Smt. ... vs Sri Trilochan Kar And Ors. on 6 December, 2002
Equivalent citations: 95(2003)CLT6, AIR 2003 ORISSA 104, (2003) 8 ALLINDCAS 405 (ORI), 2003 (8) ALLINDCAS 405, (2003) 2 CIVILCOURTC 261, (2003) 95 CUT LT 6, (2003) 3 RECCIVR 204
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Plaintiff is the appeal is the appellant against a confirming a judgment.
The suit was filed for partition of the joint family properties as described in Schedule 'Kha' of the plaint by metes and bounds and for relief under Section 4 of the Partition Act as well as for permanent injunction.
2. The case of the plaintiff is that the 'Kha' Schedule properties as per current settlement correspond to 'Ga' Schedule properties as described in Major Settlement. The plaintiff and the defendants 1 to 5 are the decendants of common ancestor Raghu and the 'Kha' Schedule properties are their ancestral properties Raghu had two sons namely, Rama and Bidyadhar. Ram had one son namely. Mani and Bidyadhar had four sons namely. Banamali, Hari, Kusa and Bhikari, Plaintiff and the defendant No. 1 are the sons of Bhikari. Defendant No. 2 is the daughter of Bidyadhar. Defendants 3 and 4 are the sons of Banamali and defendant No. 5 is the grand-son of Banamali through his son Narayan who is dead, Defendants 9 to 30 are the sons and daughters of plaintiff and defendant Nos. 1 to 5. Defendants 31 to 33 are the daughters of one Makardhwaja Mohapatra who had pre-deceased her mother defendant No. 7 Haramani. Defendant No. 6 Budhiram is in no way related to the family of the parties but a stranger to the family. After current settlement operation Mani and the four sons of Bidyadhar were sep'arated by mess and residence and separately possessed the different parcels of land as described in Schedule 'Kha' by amicable settlement and convenience. Further, it is specifically pleaded that there was no partitfon by metes and bounds. Hari died in jointness with his other brother in the year 1947 leaving behind his only daughter Haramani defendant No. 7 who is dead now. Thereafter, Kusa died while in jointness in the year 1951 leaving behind his daughter Suka Dibya defendant No. 8. After death of Hari and Kusa, their shares devolved on their other two brothers Banamali and Bhikari by survivorship. In the year 1964 Bhikari and Banamali separated in mess and residence and were separately possessing different parcels of 'Kha' Schedule properties as per their proportionate shares without any division by metes and bounds. Further case of the plaintiff is that though there was no division of properties by metes and bounds, the Settlement Authorities have arbitrarily prepared the Major Settlement Record separately in the names of co-sharers in respect of some of the joint family properties. It is also alleged that the defendant No. 6 who is stranger to the family obtained a fraudulent sale deed without payment of consideration from Mani in respect of some portion of the suit land and has been trying to forcibly take over possession of the same and also attempting to put fence around the joint family pond and crematory with a view to block the passage of the other co-sharers. On 15.4.1984 the plaintiff requested the defendants for partition by metes and bounds but some defendants including defendant No. 6 did not agree for the same as a result which the suit had been filed.
3. Defendant No. 6 who is alleged to be a stranger to the family filed written statement denying the plaint allegations and his alleged status as stranger to the family. According to him, he is the son of Mani's sister having been brought up by Mani from his child-hood. His specific case is that in the year 1950 there was division of properties by metes and bounds in between Mani and the sons and grand-son of Banamali. The said partition was also reduced into writing in a Panchayat Patra with signatures of the co-sharers and a copy of the Panchayat Patra was retained by Mani and other copy was retained by Hari. On 9.4.1955 Mani sold his entire share to defendant No. 6 under a registered sale deed and also executed one Seva Samarpana Patra in respect of his share and the property of their family deity authorising him to worship the deity and possessed the property of the deity which came to his share. By virtue of such Patra, defendant No. 6 is in possession of the properties which fell to the share of Mani and he is in such possession within the family with other co-sharers. The further case of the defendant No. 6 is that the properties kept joint have been given in Schedule '3' of his written statement which comprises of four plots measuring total extent of land Ac. O.047 decimals. The southern portion plot No. 168 is not joint Rasta and southern portion plot No. 171 is also not a joint cremation ground. According to defendant No. 6. Plot No. 168 is his exclusive homestead and plot No. 171 is his exclusive cultivable land. His further case is that plot No. 163 is exclusively possessed by him in which he has dug a pond with own income and has also grown fruit bearing trees. Being jealous of the development made in the aforesaid plots, the plaintiff in collusion with the defendants 1 to 5 has filed the suit for partition.
Defendants 3, 4 and 5 have filed a joint written statement supporting the plaintiff's case.
The minor defendants 9 to 17, defendants 28, 32 and 33 represented by the G.A.L. have filed a separate written statement stating that there was no partition of the joint family properties by metes and bounds though the co-sharers have been enjoying the different parcels of land as per their convenience. It is further case of the aforesaid minor defendants that while allotment of shares among the co-sharers, the interest and convenience of the minor defendants have not been taken note of .
4. On the pleadings of the parties, the learned Sub-judge, Balasore framed seven issues. Issue No. 2 relates to the question as to whether there was previous partition of the properties by metes and bounds and as to whether the plaintiff is entitled to a decree for partition. While answering the issue, the learned Sub-Judge on consideration of the evidence found that Mani and Bidyadhar were enjoying separate parcels of lands as per convenience and that the sons of Bidyadhar were separated in mess and status by amicable a arrangement and were enjoying different parcels of land since long. He also found that there was severance of status between Mani and Bidyadhar prior to 1930 and that there appears to be partition from the time of Mani and Bidyadhar. The entries in the R.O.R. also indicate the intention of Mani and Bidyadhar to disrupt their joint status before 1930 and the partition among the sons of Bidyadhar appears to have taken place atleast from 1963. With regard to the question as to whether there was a partition by metes and bounds, the learned Sub-Judge on consideration of the entire evidence on record held that the homestead properties of the members of the family had in fact been partitioned by metes and bounds. While answering the issue No. 3 as to whether the defendants 7 and 8 who are daughters of Hari and Kusa respectively are entitled to any share or not the learned Sub-Judge found that Hari and Kusa having died after 1956. The defendants 7 and 8 are entitled to share in the properties. While answering issue Nos. 5 and 6 relating to the right of the defendant No. 6 vis-a-vis the right of the plaintiff under Section 4 of the partition Act, the learned Sub-judge held that the allegation of fraudulent registered sale deed by Mani in favour of defendant No. 6 is not acceptable and defendant No. 6 was never in joint possession with other co-shares of the family as their properties had been partitioned by metes and bounds. On the above findings the suit having been dismissed. The plaintiff filed the appeal before the learned District Judge, Balasore. After a thread bare discussion of the evidence on record, the lower appellate Court dismissed the appeal giving rise to the present second appeal at the instance of the plaintiff.
5. At the time of admission this Court formulated the following substantial questions of law :
(1) Whether the courts below are justified in holding that there was a previous partition in the year 1950 in the absence of the so-called Panchayat Patra and in the absence of any contemporaneous oral or documentary evidence to establish the alleged partition particularly when the homestead properties of the parties have been recorded jointly in the present major settlement records ?
(2) Are the courts below justified in holding partition by metes and bounds merely on the basis of sham gift deed marked Ext. Q which is a self-serving document, and the separate note of possession in the C.S. Record of Rights which cannot in any way establish previous partition by metes and bounds ?
6. Referring to the substantial questions of law as aforesaid, Shri Patnaik, learned counsel appearing for the appellants submitted that there is no dispute that there was a severance of status resulting in a separation among the co-sharers. It is also submitted by Shri Patnaik that even though the parties were living in separate mess and possession of different parcels of lands according to their convenience. There was no partition by metes and bounds and in absence of any material on record to show that there was a partition by metes and bounds. The courts below could not have dismissed the suit merely on the ground of severance of a joint status. According to Shri Patnaik. Ext. Q and other evidence available on record do not support such a finding and therefore, the courts below should have allowed the suit. Shri Mahakud, learned counsel appearing for the contesting respondents submitted that both the Courts having concurrently found that there was partition by metes and bounds and the same being a finding of fact, this Court in exercise of jurisdiction under Section 100, CPC should not disturb such concurrent finding of fact.
7. Admittedly there has been a severance of joint status among the co-sharers and admittedly the parties were in possession of lands separately according to their own convenience and were separate in mess. The question that arises for consideration is whether such separate possession of lands and separate living among the co-sharers indicate any partition by metes and bounds or not. It appears from the discussions made by both the Courts below and the evidence on record that there was a partition by metes and bounds. The case of the defendant No. 6 is that sometime before the current settlement operation in the year 1930 Mani and the sons of Bidyadhar had separated and in order to safeguard the interest of the defendant No. 6 the ancestral properties were again partitioned by metes and bounds by some local gentlemen in the year 1950 which was reduced to writing in the form of a Panchayat Patra. In absence of the Panchayat Patra before the Court, the learned Sub-judge did not accept such plea. However, on the basis of the oral evidence adduced on behalf of the parties as well as on consideration of the Record of Rights where separate possession and shares have been noted the learned Sub-Judge held that there was partition between Mani and the sons of Bidyadhar. It is also found from the discussions made by both the courts below that in the old settlement ROR the respective possession of the parties have been separately records in the names of individual persons with evidence of separate mess and residence for a long time. The learned Sub-Judge also took into consideration the evidence of the plaintiff who admitted that the entire suit land is homestead and defendant No. 6 has excavated a pond in M. S. Plot No. 163 and has planted trees on its embankment but he did not take any action against him. This conduct of the plaintiff or his other co-sharers weighed in the mind of the Court to hold that the plaintiff in fact had no objection with regard to the conduct of the defendant No. 6 remaining in possession of the portion of land purchased by him and excavating a tank thereon because there was a previous partition by metes and bounds. The lower appellate Court has also gone to the extent of considering some documents indicating transfers of shares between the co-sharers 'which could not have happened had there been no partition by metes and bounds. I do not find any infirmity or illegality in the findings of both the Courts below on the basis of such evidence available on record. In this connection, the learned counsel for the appellants referred to the decision of this Court in the case of Dukhi Dibya and others Vrs, Landi Dibya and another, reported in AIR 1978 Orissa 182. This Court in the aforesaid decision observed as follows :
"The features of separate living in the same village in different unconnected houses, joint record with specification of shares and separate payment of house taxes and the separation of money lending business, even when a cumulative view is taken, are compatible with separate living for convenience and would not necessarily lead to the conclusion of previous partition."
8. There is no dispute with regard to the aforesaid proposition of taw and mere possession of separate parcels of lands or living in separate mess for convenience do not necessarily prove partition by metes and bounds. But in the present case the evidence is otherwise. As observed by both the Courts below. The evidence led clearly indicate the long separation among the members of the joint family and not only a long separation is admitted but also there has been inter se transfer of properties between the co-sharers and no objection from the side of the co-sharers in relation to the possession of certain parcels of lands by defendant No. 6 by virtue of the sale deed has ever been raised.
9. Taking all the matters into consideration, in my view both the Courts were justified in holding that there was a previous partition by metes and bounds. The question as to whether there was a partition by metes and bounds will entirely depend upon the evidence placed before the Court and both the Courts on consideration of the oral and documentary evidence having come to a concurrent finding of fact that there was a partition by metes and bounds among the co-sharers, there is no reason for this Court to come to a different conclusion.
Accordingly, I do not find any merit in the appeal and the same stands dismissed.