Orissa High Court
Shanti Bewa And Others vs Sudarsan Maharana (Dead) And on 13 March, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.259 of 1991
(In the matter of an appeal under Section 100 of the Code of Civil Procedure)
Shanti Bewa and others .... Appellants
-versus-
Sudarsan Maharana (dead) and .... Respondents
another Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. D.P. Mohanty,
Advocate.
For Respondents - Mr. S. R. Patnaik,
Advocate.
Ms. P. Jena, Adv.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :06.03.2024 :: Date of Judgment :13.03.2024 A.C. Behera, J. This Second Appeal has been preferred against the reversing judgment.
2. The appellants of this Second Appeal were the defendants before the Trial Court in the suit vide T.S. No.88 of 1980-I and they were the respondents before the First Appellate Court in the First Appeal vide T.A. No.22 of 1985.
The respondents of this Second Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.88 of 1980-I and they were the Page 1 of 16 S.A. No.259 of 1991 appellants before the First Appellate Court in the First Appeal vide T.A. No.22 of 1985.
3. The suit of the plaintiffs (those are the respondents in this Second Appeal) before the Trial Court in the suit vide T.S. No.88 of 1980-I against the defendants (those are the appellants in this Second Appeal) was a suit for partition.
4. On the basis of the averments made by the plaintiffs in their plaint, the family pedigree/genealogy of the plaintiffs and defendants is depicted hereunder for an instant reference.
Genealogy
Late Bhagabata Maharana
Kanhei Narana Late Alekha
Sudarsana Kangali
(plaintiff No.1) (plaintiff No.2)
Ugrasen
Madha
=Shanti-defendant No.1 (Ka)-wife
Bijay Jharana Khulana
Defendant No.1 (Kha) Defendant No.1 (Ga) Defendant No.1 (Gha)
Page 2 of 16
S.A. No.259 of 1991
As per the story narrated in the plaint, the suit properties are two sabik plots i.e. Plot No.1522 Ac.0.13 decimals & Plot No.1523 Ac.0.04 decimals, both are under sabik Khata No.402 (Ext.C).
The sabik Plot No.1522 corresponds to Hal Plot No.1469 Ac.0.03 decimals, 1470 Ac.0.10 decimals and 1471 Ac.0.02 decimals under Hal Khata No.366 (Ext.B).
Likewise sabik Plot No.1523 corresponds to Hal Plot No.1472 Ac.0.04 decimals under the same Hal Khata No.366 (Ext.B).
The sabik Khata No.402 vide Ext.C was recorded jointly in the names of the three brothers as per the above genealogy i.e. in the names of Kanhei, Narana and Alekha.
Accordingly, three brothers i.e. Kanhei, Narana and Alekha had 1/3 share each in sabik suit plot Nos.1522 & 1523 under sabik Khata No.402.
The above three brothers i.e. Kanhei, Narana and Alekha were possessing the suit properties by distributing the same amicably between them without any metes and bounds partition. As per such amicable distribution, Narana Maharana and Alekha Maharana were possessing sabik suit Plot No.1522 Ac.0.13 decimals and Kanhei Maharana was possessing sabik suit Plot No.1523 Ac.0.04 decimals. Page 3 of 16 S.A. No.259 of 1991
The plaintiffs are the successors of Kanhei's branch. The defendants are the successors of Narana's Branch.
Alekha Maharana sold Ac.0.06½ decimals out of Ac.0.13 decimals from sabik Plot No.1522 to the plaintiffs by executing and registering a sale deed on dated 26.07.1950 (Ext.1) and some years thereafter Alekha Maharana died issueless.
Accordingly, the members of plaintiffs' branch possessed Ac.0.06½ decimals of sabik Plot No.1522 along with Ac.0.04 decimals of sabik Plot No.1523 i.e. in total Ac.0.10 ½ decimals of land from the suit properties.
During Hal settlement, the Hal R.o.R. of the suit properties was published jointly in the names of the plaintiffs and defendants under Hal Khata No.366 (Ext.B). Though, out of the suit properties, the plaintiffs were possessing Ac.0.10 ½ decimals and the defendants were possessing less than that, but the defendants created disturbances in the possession of the plaintiffs over the suit properties. For which, the plaintiffs approached the civil Court by filing the suit vide T.S. No.88 of 1980-I against the defendants praying for partition of their Ac.0.10 ½ decimals of land from sabik suit Plot Nos.1522 & 1523 under Sabik Khata No.402.
Page 4 of 16 S.A. No.259 of 1991
5. Having been noticed from Trial Court in the suit vide T.S. No.88 of 1980-I, the defendants contested the suit of the plaintiffs by filing their written statement jointly denying the averments made by the plaintiffs in their plaint by taking their stands therein that, the suit of the plaintiffs is not maintainable against them. The suit of the plaintiffs is bad for non-joinder of necessary parties. The specific case of the defendants was that, Bhagbat Maharana was their common ancestor. Bhagbat Maharana died leaving behind his three sons, namely, Kanhei Maharana, Narana Maharana and Alekha Maharana. Kanhei Maharana died forty years back leaving behind his two sons i.e. Sudarsan Maharana and Kangali Maharana (those are plaintiff Nos.1 and 2) and one daughter, namely, Buli. But, Alekha Maharana died issueless.
After the death of Alekha Maharana, his undivided share in sabik suit plot No.1522 devolved half::half equally upon the members of the branches of Kanhei Maharana and Narana Maharana i.e. upon the members of plaintiffs' branch and defendants' branch. The transfer of the share of Alekha Maharana to the plaintiffs as stated by the plaintiffs in their plaint on dated 26.07.1950 is false one. Because, Alekha Maharana was not legally competent to alienate any portion of the suit properties to any person from the sabik suit plot No.1522 without the Page 5 of 16 S.A. No.259 of 1991 consent of his other co-sharers. The alleged sale deed dated 26.07.1950 relied by the plaintiffs in their favour is invalid and inoperative.
Further case of the defendants was that, an oral and amicable partition was effected between the plaintiffs and defendants in respect of the sabik suit plot No.1522, as Alekha died issueless. So, after the death of Alekha Maharana, his undivided share in sabik suit plot No.1522 devolved upon the plaintiffs and defendants equally. As per amicable partition between the plaintiffs and defendants, Ac.0.10 decimals of land out of Ac.0.13 decimals of sabik suit plot No.1522 remained under the possession of the defendants. For which, the possession of the defendants were noted in the Hal R.o.R. in respect of Ac.0.10 decimals of Hal Plot No.1470, which corresponds to part of sabik Plot No.1522. So, according to the separate possession of the plaintiffs and the defendants, separate note of possession in respect of the Hal Plot Nos.1469, 1471 and 1472 were indicated. The Settlement Authorities have correctly noted the possession of the defendants in respect of Hal Plot No.1470 Ac.0.10 decimals and Hal Plot No.1472 Ac.0.04 decimals and as such, they (defendants) are the owners and in possession over the aforesaid two Hal Plots vide Plot Nos.1470 & 1472 on the basis of their above earlier partition. For which, the question of making partition of Page 6 of 16 S.A. No.259 of 1991 the suit properties again through this suit filed by the plaintiffs does not arise. Therefore, the suit of the plaintiffs is liable to be dismissed.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, the Trial Court framed altogether 7 (Seven) numbers of issues in the suit vide T.S. No.88 of 1980-I and the said issues are:-
Issues
1. Is the suit maintainable?
2. Is the suit bad for non-joinder of necessary parties?
3. Are the settlement record of rights in respect of the suit properties valid, genuine and legal?
4. Are the plaintiffs entitled to the reliefs claimed?
5. Have the plaintiffs cause of action to file this suit?
6. Whether the sale deed dated 26.07.1950 is valid, genuine and the plaintiffs have acquired right, title, interest and possession over the purchased land by virtue of that sale deed?
7. Whether an oral and amicable partition was effected between the plaintiffs and Madha and whether as per that partition Madha remained in exclusive possession of Ac.0.10 decimals of lands of plot No.1522?
7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, they (plaintiffs) examined two witnesses from their side including the plaintiff No.1 as P.W.2 and relied upon two documents vide Exts.1 and 2 on their behalf.
But, on the contrary, in order to nullify/defeat the suit of the plaintiffs, they (defendants) examined three witnesses on their behalf Page 7 of 16 S.A. No.259 of 1991 including the defendant No.1(Ka) as D.W.3 and relied upon three documents from their side vide Exts.A, B and C.
8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues against the plaintiffs and in favour of the defendants and basing upon the findings and observations made by the Trial Court in the issues, the Trial Court passed the judgment and decree of the suit vide T.S. No.88 of 1980-I on dated 24.08.1985 and 04.09.1985 respectively and dismissed the suit of the plaintiffs vide T.S. No.88 of 1980-I on contest against the defendants assigning the reasons that, as per the note of possession made in the Hal R.o.R., the suit properties have already been partitioned between the predecessor of the plaintiffs and the predecessor of the defendants and on the basis of such earlier partition between the parties, there is noting of separate possession of the parties in respect of the suit plots in the Hal R.o.R. vide Ext.B.
9. On being aggrieved with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.88 of 1980-I passed on dated 24.08.1985 and 04.09.1985 respectively by the Trial Court, they (plaintiffs) challenged the same by preferring the First Appeal vide T.A. Page 8 of 16 S.A. No.259 of 1991 No.22 of 1985 being the appellants against the defendants by arraying them (defendants) as respondents.
10. After hearing from both the sides, the First Appellate Court allowed that First Appeal vide T.A. No.22 of 1985 of the appellants (plaintiffs) and set aside the judgment and decree dated 24.08.1985 and 04.09.1985 respectively passed by the Trial Court in T.S. No.88 of 1980-I and decreed the suit of the plaintiffs (appellants) vide T.S. No.88 of 1980-I preliminarily for partition entitling the plaintiffs to get Ac.0.04 ½ decimals in Hal Plot No.1469, Ac.0.02 decimals in Hal Plot No.1471 and Ac.0.04 decimals in Hal Plot No.1472 and entitling the defendants to get Ac.0.06 ½ decimals from Hal Plot No.1470 as per its judgment and decree dated 10.07.1991 and 07.08.1991 respectively.
As per the above judgment and decree dated 10.07.1991 and 07.08.1991 respectively passed in T.A. No.22 of 1985, out of the suit properties, the plaintiffs were entitled for Ac.0.10 ½ decimals in total and the defendants were entitled for Ac.0.06 ½ decimals from the suit properties. As such, when the plaintiffs were entitled to get full plots vide Hal Plot Nos.1469, 1471 & 1472, the defendants were entitled to get part of Hal Plot No.1470.
Page 9 of 16 S.A. No.259 of 1991
11. On being aggrieved with the aforesaid judgment and decree passed by the First Appellate Court in T.A. No.22 of 1985 in decreeing the suit of the plaintiffs vide T.S. No.88 of 1980-I after setting aside the judgment and decree of the dismissal of that suit of the plaintiffs vide T.S. No.88 of 1980-I, they (defendants, those were respondents in the First Appeal) challenged the same only on the ground of inadequacy of distribution of the shares in the suit properties in their favour being the appellants by preferring this Second Appeal against the plaintiffs by arraying them (plaintiffs) as respondents.
12. This Second Appeal was admitted on formulation of following substantial question of law i.e.:-
Whether the judgment and decree passed by the First Appellate Court allowing T.A. No.22 of 1985 filed by the appellants (defendants) making the allotment of shares between the parties after setting aside the judgment and decree of the dismissal of the suit vide T.S. No.88 of 1980- I passed by the Trial Court is sustainable under law?
13. I have already heard from the learned counsels of both the sides.
14. It is the undisputed case of the parties that, the suit sabik Plot Nos.1522 & 1523 under sabik Khata No.402 (Ext.C) corresponds to Hal Plot Nos.1469, 1470, 1471 & 1472 under Hal Khata No.366 (Ext.B). Page 10 of 16 S.A. No.259 of 1991
The sabik R.o.R. vide Ext.C i.e. sabik Khata No.402 was published jointly in the name of three brothers i.e. Kanhei, Narana and Alekha.
The Hal R.o.R. vide Ext.B i.e. Hal Khata No.366 has been published jointly in the names of the members of two branches i.e. the members of the branches of Kanhei and Narana, as the branch of Alekha had extinct by the time of publication of Hal R.o.R. The above continuous joint recording of the suit properties in the sabik and Hal R.o.R. itself is going to show that, the suit properties are still joint between the members of two branches i.e. between the members of the branches of Kanhei and Narana and the same has not been partitioned between them through metes and bounds partition.
The plaintiffs are the members of the branch of Kanhei. The defendants are the members of the branch of Narana.
15. The First Appellate Court in paragraph 8 of its judgment and decree has specifically held that, the sale deed dated 26.07.1950 vide Ext.1 executed by Alekha in favour of the plaintiffs for selling the properties covered under the suit sabik plot No.1522 is valid. The said findings and observations made by the First Appellate Court about the validity of sale made by Alekha in favour of the plaintiffs through the Page 11 of 16 S.A. No.259 of 1991 sale deed vide Ext.1 have already been reached in its finality, as there is no challenge to that findings on behalf of the defendants.
16. Therefore, after purchase of the share of Alekha Maharana through the sale deed vide Ext.1 on dated 26.07.1950 by the members of plaintiffs' branch, the share of the plaintiffs' branch over the suit properties became 1/3 + 1/3 = 2/3 share. The share of the defendants' branch in the suit properties is as it is as 1/3rd share.
As per the discussions and observations made above, though it is held that, the shares of the members of plaintiffs' branch in total is 2/3rd share and the shares of the members of defendants' branch in total is 1/3rd share in the suit properties, but the First Appellate Court through its judgment and decree passed in T.A. No.22 of 1985 has passed the preliminary decree for partition of the suit properties allotting Hal Plot Nos.1471, 1472 in full along with Ac.0.04 ½ decimals of Hal Plot No.1469 in favour of the plaintiffs, although the total area of that Hal Plot No.1469 is Ac.0.03 decimals and allotting Ac.0.06 ½ decimals out of Ac.0.10 decimals of Hal Plot No.1470 in favour of the defendants without allotting rest Ac.0.03 ½ decimals of that total Hal Plot No.1470 in favour of any of the parties.
Page 12 of 16 S.A. No.259 of 1991
The above preliminary decree passed by the First Appellate Court in the suit for partition vide T.S. No.88 of 1980-I allotting excess area of suit Plot No.1469 then its existing areas in the record without allotting Ac.0.03 ½ decimals of land in Plot No.1470 to any party and allotting full plots in favour of the plaintiffs is not inconformity with law. Because, the First Appellate Court has exceeded its jurisdiction in passing the preliminary decree in the suit vide T.S. No.88 of 1980-I. <Because, as per law, in a partition suit, each and every parties are both plaintiffs and defendants.
A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties.
The prayer relating to actual division by metes and bounds and allotment of specific portion/item of the suit plots and as well as specific suit plots left for being completed under the final decree proceedings.= On this aspect, the propositions of law has already been clarified by the Hon'ble Courts in the ratio of the following decision:-
1 (2016) Civil Law Times-504 (Tripura)--Anjali Deb and others Vrs. Jitendra Chandra Deb and others--(Paragraph
21)4 Preliminarily vis-à-vis final decree in a suit for partition <A preliminary decree for partition only identifies the properties to be subjected to partition defines and declares the shares/rights of the parties.
That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings=.
17. When the First Appellate Court has exceeded its jurisdiction in passing the preliminary decree in the suit for partition at hand vide T.S. Page 13 of 16 S.A. No.259 of 1991 No.88 of 1980-I allotting some full plots to the plaintiffs and allotting excess area of one plot vide Plot No.1469, though the recorded area of that plot No.1469 is less than the allotted area and without allotting Ac.0.03 ½ decimals of land of Plot No.1470 to any party jumping to the next stage of the preliminary decree i.e. to the stage of final decree without carving out the shares of the parties in the suit properties and without any physical measurements of the suit properties at the spot by the Civil Court Commissioner for distribution of the same between the parties according to their shares therein, then at this juncture, such type of distribution of suit properties between the parties by the First Appellate Court in a preliminary decree for partition cannot be sustainable under law. For which, there is justification under law for making interference with the said nature of preliminary decree passed by the First Appellate Court in T.A. No.22 of 1985 through this Second Appeal filed by the appellants (defendants). Therefore, the Second Appeal filed by the defendants must succeed.
18. In the result, this Second Appeal filed by the appellants (defendants) is allowed in part, but without cost. The judgment and decree dated 10.07.1991 and 07.08.1991 respectively passed by the First Appellate Court in T.A. No.22 of 1985 is modified/altered entitling the Page 14 of 16 S.A. No.259 of 1991 members of plaintiffs' branch to get 2/3rd share jointly in total and entitling the members of defendants' branch to get 1/3 rd share jointly in total from the suit properties, but without cost.
19. Therefore, the suit be and the same vide T.S. No.88 of 1980-I filed by the respondents (plaintiffs) is decreed preliminarily for partition on contest against the defendants (appellants of this Second Appeal), but without cost.
Out of the suit properties vide sabik plot Nos.1522 and 1523 corresponding to Hal Plot Nos.1469, 1470, 1471 and 1472, all the members of the plaintiffs' branch are jointly entitled to get 2/3rd share and all the members of defendants' branch are jointly entitled to get 1/3rd subject to adjustment of any sale, if any, made by the members of the plaintiffs' branch and defendants' branch, from their respective shares.
20. The parties of the above two branches may amicably effect partition of the suit properties in proportion to their respective shares of their respective branches as indicated above within a period of three months hence, failing which, any one of the parties may apply the Trial Court for making the decree final.
In the final decree proceeding, the Civil Court Commissioner to be appointed by the Trial Court shall make the division of the suit Page 15 of 16 S.A. No.259 of 1991 properties amongst the parties by allotting their respective shares in their favour in accordance with the apportionments made above and while so partitioning, he/she shall respect to the possession and convenience of the parties.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
13th March, 2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Mar-2024 16:08:00 Page 16 of 16 S.A. No.259 of 1991