Orissa High Court
Balabhadra Pradhan And Another vs Agadi Bewa After Her By L.R. Belasini ... on 18 August, 2014
Author: R. Dash
Bench: Raghubir Dash
ORISSA HIGH COURT: CUTTACK
S.A. NO.287 OF 1991
From the judgment and decree dated 13.08.1991 and 29.08.1991,
respectively, passed by Sri P.K. Tripathy, District Judge, Puri in Title
Appeal No.36 of 1989 reversing the judgment and decree dated
25.02.1989 and 21.03.1989, respectively, passed by Sri D. Rout,
Sub-Judge, Khurda in O.S. No.68 of 1986.
__________
Balabhadra Pradhan and another ...... Appellants
Versus
Agadi Bewa (Dead) after her ...... Respondents
by L.R. Belasini Sahoo and others
For Appellants : M/s. A. Mukherjee, G. Mukherjee,
& P.K. Khuntia
For Respondents : M/s. Dayanidhi Mohanty, T.N
Chaudhury, R.C. Ojha & A.K. Jena
For respondent No.1(a)
Mr. B. Sahoo
(For respondent Nos.2 and 3)
PRESENT :
THE HONOURABLE MR. JUSTICE RAGHUBIR DASH
Date of hearing : 25.07.2014 Date of judgment : 18.08.2014
R. DASH, J.Being aggrieved by the learned trial court judgment and decree dated 25.02.1989 and 21.03.1989, respectively, passed by the learned Sub-Judge, Khurda in O.S. No.68 of 1986 decreeing the suit for partition but refusing to grant the relief of repurchase under Section 4 of the Partition Act, the plaintiff preferred the First Appeal 2 before the learned District Judge, Puri in Title Appeal No.36 of 1989 and the First Appeal being allowed vide judgment and decree dated 13.08.1991 and 29.08.1991, respectively, the stranger purchasers, who were defendant Nos.1 and 2 in the suit have preferred this Second Appeal.
2. The original respondent No.1-Agadi Bewa is the plaintiff in the suit. Consequent upon her death during pendency of this Second Appeal, her daughter has been substituted and arrayed as R-1(a). The plaintiff's co-sharers, who have transferred their shares/interest in the suit dwelling house, are D-3 and D-4 in the suit and they are R-2 and R-3 in this Second Appeal.
3. For the sake of convenience and to avoid possible confusion, reference to the parties here-in-after in this judgment will be as per their nomenclature in the plaint cause-title.
4. Facts which are either admitted or not disputed are that the suit land with the building standing thereon is the ancestral dwelling house of the plaintiff and proforma defendant Nos.3 and 4 in which each of them has got 1/3rd share and that D-3 and D-4 have sold away their respective shares in the suit property to defendant Nos.1 and 2. It is also not in dispute that D-1 and D-2 are strangers to the family qua the dwelling house and that in the year 1975, after the alienation made by D-3 and D-4 in favour of D-1 and D-2, the plaintiff had filed a suit bearing O.S. No.17 of 1975 in the court of 3 Munsif, Khurda for permanent injunction to restrain D-1 and D-2 from coming over the suit property which was decreed in favour of the plaintiff. Title Appeal as well as Second Appeal against that decree preferred by D-1 and D-2 were, admittedly, dismissed.
5. Further case of the plaintiff is that despite of the decree passed in the earlier suit D-1 and D-2 forcibly entered into the suit premises and occupied some of the rooms therein. Since the suit house is the undivided ancestral house, she filed the present suit claiming partition and allotment of 1/3rd of suit property to her share and for a direction to D-1 and D-2 to execute a sale deed in her favour in respect of the shares of D-3 and D-4 which they have purchased, calling upon her to pay the same price as D-3 and D-4 had paid to their vendors.
6. D-1 and D-2 in their joint written statement have taken the stand that there was already a partition of the suit property long before they had purchased the shares of D-3 and D-4 and in terms of that partition the plaintiff, D-3 and D-4 had been in exclusive possession of specific portions of the suit premises. Their further plea is that much prior to the plaintiff filing the earlier suit, more specifically, on the date they had purchased the shares of D-3 and D- 4, they got delivery of possession of their purchased portions of the suit premises. They claim that plaintiff's plea that despite of the 4 decree passed in the earlier suit D-1 and D-2 forcibly entered into the suit land is false.
On the maintainability of the suit they have pleaded that the subsequent suit is hit under the provisions of Or.2 R.2 of the C.P.C. and that in the facts and circumstances of the case plaintiff is not entitled to the rights available under Section 4 of the Partition Act.
7. D-3 and D-4 have jointly filed a separate written statement taking almost identical stand as taken by D-1 and D-2.
8. Learned trial court refused to grant the relief of pre- emption on the ground that no court-fee for enforcing the right of repurchase was paid and that the suit was not valued for any relief other than for partition. In the First Appeal, learned District Judge overruled the contention taken by D-1 and D-2 that the relief under Section 4 of the Partition Act in the subsequent suit is not available to the plaintiff because, in the earlier suit she could have, but did not seek for that relief. Allowing the relief of pre-emption, the learned appellate court observed that at the stage of Final Decree the trial court should fix the valuation of the property sought to be repurchased by the plaintiff.
9. In this Second Appeal the following substantial questions of law are to be answered:
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(i) Whether the lower appellate court erred in rejecting the appellants' contention that the plaintiff's prayer under Section 4 of the Partition Act was barred by the principles of Or.2 R.2 of the C.P.C.? and,
(ii) Whether the relief sought under Section 4 of the Partition Act was barred by limitation?
10. Learned counsel for the appellants argues that the cause of action for the earlier suit and the present suit being the same and the parties to both the proceedings being the same and, as on the date of institution of the earlier suit, the cause of action for the remedy sought for in the present suit was available, the present suit is hit under Or.2 R.2 of the C.P.C. On the contrary, it is argued by the learned counsel for the respondents that the cause of action for the earlier suit is quite different from that of the present suit and that learned courts below have rightly answered in negative the issue as to whether the present suit is hit under Or.2 R.2 of the C.P.C.
11. Both the courts below have answered in negative the issue as to whether the suit is hit under Or.2 R.2 of the C.P.C. The consistent plea of D-1 and D-2 is that the plaintiff could have asked for partition of the suit property and for repurchase of the shares of the D-3 and D-4 in the earlier suit in which her only prayer was for permanent injunction. Learned trial court has observed that in the earlier suit it was not necessary for the plaintiff to ask for the relief 6 for partition and repurchase. Learned lower appellate court observed that the earlier suit was filed when the stranger purchasers made attempt to enter into the dwelling house and for that cause of action the suit was filed for permanent injunction without seeking for any other relief, whereas in the present suit the cause of action is the forceful entry of the stranger purchasers into the suit building/house despite of a decree for injunction against them. Learned lower appellate court observed that in the facts and circumstances it cannot be held that the cause of action for both the suits was the same.
12. For the purpose of ready reference Or.2 R.2 of the C.P.C. is reproduced hereunder:
"Suit to include the whole claim-(1) Every suit shall include the whole of the claim which the plaintiff is selected to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim -
Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
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Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
Or.2 R.2 of the C.P.C. is just like the principle of res judicata. It is based on the cardinal principle that all disputes must be settled once for all and no person ought to be vexed twice for one and the same cause. The rule makes it clear that on the self-same cause of action there should not be multiple litigations. One cause of action may give rise to a more than one claim and the plaintiff is to sue for the whole of the claim or he may sue for a part thereof and relinquish the rest part. When a part of the whole of the claim is either relinquished or omitted unintentionally, then the plaintiff will be debarred from filing another suit for that part of the relief.
13. Here in this case, when the plaintiff found that after purchasing the shares of D-3 and D-4 in the suit dwelling house, D-1 and D-2 disturbed the plaintiff's possession and threatened to enter into the dwelling house, she filed the earlier suit seeking the remedy of permanent injunction to prevent them form entering into the suit house. At that time the plaintiff could have sought for the partition of the dwelling house with the right to repurchase the shares of D-3 and D-4. On the other hand, having purchased the shares of D-3 and D-4 in the dwelling house, D-1 and D-2 could have sought for 8 partition of the dwelling house. Instead of doing so they tried to get forcible entry into the dwelling house. That was the cause of action that drove the plaintiff to file a suit to prevent their forceful entry into the suit land. In respect of that cause of action she was not bound to sue for partition and repurchase of the shares of D-3 and D-4. She was entitled to such reliefs only in a suit for partition. When stranger purchasers did not file any suit for partition and on the other hand forcefully entered into the dwelling house despite of the permanent injunction against them, a distinct cause of action arose which entitled the plaintiff to seek for partition of the dwelling house and in that partition suit she also asked for a direction for the sale of the share of the transferees (D-1 and D-2). Thus, the cause of action in both the suits is not one and the same. The plaintiff in the earlier suit could have included the cause of action in respect of which the present suit has been filed to include her claim for partition and for repurchase of the transferees' shares with the remedy of permanent injunction. But Or.2 R.2 of the C.P.C. does not require that every suit shall include every claim or every cause of action which the plaintiff may have against the defendants. No doubts both the suits arise from the same transaction, i.e., the sale transaction made by D- 3 and D-4 under Registered Sale Deed dated 15.01.1975 alienating their respective share in the suit dwelling house. But different cause of action arose from the same transaction for which the plaintiff filed 9 separate suits. Or.2 R.2 of the C.P.C. does not require that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit. No doubt, the cause of action for a suit for partition as well as repurchase had already accrued when the sale transactions took place. But the plaintiff did not opt to join both the causes of action when he filed the earlier suit. The Rule-2, Order-2 does not require that when several causes of action arise from one transaction the plaintiff should sue for all of them in one suit. Therefore, there is no force in the contention that the plaintiff's prayer under Section 4 of the Partition Act is barred by the principles contained in Or.2 R.2 of the C.P.C.
14. The second contention is that the sale transaction in favour of the strangers having taken place in the year 1975, the present suit filed in the year 1986 is beyond the period of limitation as prescribed in Article 97 of the Limitation Act. This is a suit for partition of an undivided dwelling house for which no period of limitation is prescribed. So long as the property is not shown to have been divided by meets and bounds, a suit for partition of the property by a co-sharer would be maintainable. Unless a suit for partition is filed in a civil court the claim for buying the share of a stranger purchaser cannot be raised under Section 4 of the Partition Act. This being a suit for partition in which the share of the stranger purchaser 10 is sought to be repurchased Article 97 of the Limitation Act is not applicable.
15. Learned lower appellate court granted the relief under Section 4 of the Partition Act relying on the decision reported in AIR 1971 Orissa 127 (Alekha Mantri -Vs.- Jagabandhu Mantri and Ors.).
In course of argument learned counsel for the appellant has submitted that the decision in Alekha Mantri's case (supra) having been held to be not good law by the Apex Court in a decision reported in AIR 2000 SC 2684 (Babulal -Vs.- Habibnoor Khan (Dead) by L.Rs. and others), the present suit for partition at the instance of a co-owner/co-sharer in respect of the suit property is not maintainable.
In Alekha Mantri's case (supra) this Court has held that Section 4 of the Partition Act is equally applicable to all cases where a partition suit is brought and a stranger transferee is already there as a party to the suit and that it is immaterial whether the suit is brought by the transferee himself or he is arrayed as a defendant in the suit. A careful reading of the judgment of the Apex Court in Babulal's case (supra) makes it crystal clear that the aforementioned view taken by this Court has not been overruled. In the case before the Hon'ble Supreme Court, though it was a suit for partition, the stranger purchaser was not a party to that suit. Still the learned 11 Single Judge of Madhya Pradesh High Court applied the ratio in Alekha Mantri's case to conclude that even in the absence of the stranger transferee as a party in the partition suit a member of the family could buy out the stranger transferee. The Apex Court observed that in the absence of the transferee as a party to the suit for partition it could not be said that the transferee stranger purchaser of co-owners' interest in the joint property was suing for partition either as a plaintiff or even as a defendant in the suit for partition. The Apex Court then made the following observation on which learned counsel for the appellants places reliance:
"If the ratio of the aforesaid decision is held to take the view that a stranger purchaser who does not move for partition of joint property against the remaining co-owners either as a plaintiff or even as a defendant in the partition suit claiming to be as good as the plaintiff nor even as a successor of the decree holder seeks execution of partition decree, can still be subjected to Section 4 of the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh's case (1996 AIR SCW 3858 : AIR 1997 SC 471) (supra) and to that extent it must be treated to be overruled."
Hon'ble Apex Court made a hypothetical observation stating that if the ratio of the decision in Alekha Mantri's case is held to take the view that even in the absence of a stranger purchaser as a party to the partition suit, relief under Section 4 of the Partition Act can be granted, then to that extent it shall be treated as overruled. In 12 Alekha Mantri's case there is no such observation that even in the absence of the stranger transferee as a party to the partition suit, principle laid down in Section 4 of the Partition Act would be applicable. What is clearly observed in Alekha Mantri's case is that even if the stranger purchaser himself has not filed the suit claiming partition but he or she is arrayed as a defendant in the suit for partition, then the stranger purchaser shall be deemed to have brought the suit for partition and Section 4 of the Partition Act would be applicable to such a suit. The observation in Babulal's case does not render this view overruled. Since the stranger purchasers (D-1 and D-2) are parties to the suit for partition out of which this Second Appeal arises and other conditions for the application of Section 4 of the Partition Act having been satisfied, the learned lower appellate court has rightly granted the relief under Section 4 of the Partition Act.
16. In the result, the Second Appeal is found devoid of merit and as such the same is dismissed but, in the facts and circumstances, without any cost. Judgment and decree passed in the T.A. are confirmed.
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R. Dash, J.
Orissa High Court, Cuttack The 18th August, 2014/D. Aech, Sr. Steno