Orissa High Court
Kabita Acharya vs Basanta Kumar Layak And Others on 1 May, 2017
Equivalent citations: AIR 2017 ORISSA 83, (2017) 175 ALLINDCAS 575 (ORI) (2017) 124 CUT LT 1007, (2017) 124 CUT LT 1007
Author: A.K.Rath
Bench: A.K.Rath
1
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.781 of 2015
In the matter of an application under Article 227 of the Constitution of
India.
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Kabita Acharya .... Petitioner
Versus
Basanta Kumar Layak and others .... Opposite parties
For Petitioner -- Mr.Soumya Mishra,
Advocate
For Opposite parties -- Mr.Manoranjan Mishra
Advocate
(For OP No.1)
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
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Date of Hearing:19.4.2017 & Date of Judgment:1.5.2017
Dr.A.K.Rath, J.This petition challenges the order dated 27.4.2015 passed the learned Civil Judge (Senior Division), Keonjhar in Execution Case No.32 of 2010, whereby and whereunder, the learned trial court allowed application of the plaintiff under Sec.4 of the Partition Act and directed defendant no.13/J.Dr. no.12, petitioner herein to execute the registered sale deed in respect of the suit schedule property in favour of the plaintiff at the prevailing market price and to bear the registration cost.
22. Shorn of unnecessary details, the short facts of the case is that opposite party no.1 as plaintiff instituted T.S.No.90 of 2000 in the court of the learned Civil Judge (Senior Division), Keonjhar for partition impleading opposite parties 2 to 14 as well as the petitioner as defendants. The petitioner was defendant no.13. The suit was decreed preliminarily on 3.5.2003 by declaring 1/8th share of each of the plaintiff and defendant nos.1-6 with a further declaration of partition and that the inter se transfers and the extent of such transfers shall be adjusted from the respective shares of the plaintiff and defendants 1 to 6. There was a further direction that the interest of the purchasers and donees shall be restricted to the extent of specific share of land of their respective vendors. The preliminary decree was made final on 4.10.2010. Thereafter defendant nos. 3 and 7 levied Execution Case No.32 of 2010 for delivery of possession of their allotted landed property as per the final decree. While the matter stood thus, the plaintiff filed an application under Sec. 4 of the Partition Act praying for a direction to defendant no.13/J.Dr.12 (petitioner herein) to re-transfer the property, which was purchased from D.Hr. No.1 by means of a registered sale deed dated 10.4.1990 in his favour on the consideration fixed by the court. It is stated that defendant no.13 was impleaded as a party to the suit, since she has purchased a part of the suit property from defendant no.3. The defendant no.3 levied execution case. The property purchased by defendant no.13 has been included in the share of defendant no.3. The same is a homestead and is a part and parcel of the joint family residential property of the plaintiff. The property has the potentiality of being used as the residential property and dwelling house of the family of the plaintiff. The plaintiff had filed an application for making the preliminary decree final. A Civil Court Commissioner was deputed for 3 effecting physical partition of the properties. Accordingly, the Civil Court Commissioner had conducted field enquiry, prepared allotment sheets along with sketch map separately allotting different part of the suit properties in favour of the plaintiff and the defendants. In the said allotment, the property purchased by defendant no.13 has been allotted in her favour under khata no.58, plot no.508/5 area A0.015 dec. After the said allotment, defendant no.3 levied execution case for delivery of possession of the properties allotted in his favour. As the preliminary decree stipulates that the interest of the purchasers shall be restricted to the extent of the respective shares of land of their respective vendors, the prayer for execution of the final decree has the effect of his purchaser i.e. defendant no.13 seeking for physical partition of her purchased property and taking separate delivery of possession of the same from the entire suit property. The J.Dr.12 transferee filed objection stating therein that the plaintiff has not challenged her title and possession. The petition has been filed to protract the litigation. The suit land is Gharabari and a house is standing thereon. Thus, the question of preemption does not arise. The plaintiff was silent from the date of sale deed and delivery of possession knowing fully well about the sale of the suit land and admitting her title and possession over the same. After engorssment of final decree in stamp papers, the property is not the joint family property. The learned trial court, placing reliance on a decision of the apex Court in the case of Ghantesher Ghosh v. Madan Mohan Ghosh and others, AIR 1997 SC 471, allowed the application.
3. Heard Mr.Soumya Mishra, learned Advocate for the petitioner and Mr.Manoranjan Mishra, learned Advocate for opposite party no.1. None appeared for opposite parties 2 and 3.
44. Mr. Soumya Mishra, learned Advocate for the petitioner submitted that the application filed by the plaintiff is thoroughly misconceived inasmuch as the learned executing court has committed a patent error in allowing the application of the plaintiff under Sec. 4 of the Partition Act. He further submitted that Sec.4 of the Partition Act can be pressed into service provided the stranger transferee sues for partition. In the instant case, the petitioner is a stranger transferee. She has not filed the suit for partition. He further submitted that the learned trial court has failed to take into consideration of the subsequent developments of the suit. The suit for partition has been decreed and the same has been culminated in the final decree. The learned trial court misread and misinterpreted the decision of the apex Court in the case of Ghantesher Ghosh (supra).
5. Per contra, Mr.Manoranjan Mishra, learned Advocate for opposite party no.1 submitted that admittedly the suit property is a homestead. The defendant no.3 has alienated his undivided interest in the property to the petitioner. In objection, the petitioner took a specific plea that the plaintiff was aware of execution of sale deed and delivery of possession and the plaintiff admitted the title and possession of defendant no.13. Application under Sec.4 of the Partition Act can be filed at any stage of the suit.
6. There were divergent views of different High Courts including this Court in the case of Alekha Mantri v. Jagabandhu Mantri and others, AIR 1971 Orissa 127 with regard to scope and ambit of Sec. 4 of the Partition Act. The same has been set at rest by the apex Court in the case of Ghantesher Ghosh (supra). The apex Court held thus:-
5"A mere look at the aforesaid provision shows that for its applicability at any stage of the proceedings between the contesting parties, the following conditions must be satisfied:
(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein;
(2) The transferee of such undivided interest of the co- owner should be an outsider or stranger to he family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-
emption by undertaking to buy out the share of such transferee; and (5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house".
It was further held that the terminology "suing for partition"
would not necessarily mean filing of a suit in the first instance by the transferee. If a transferee seeks to execute any final decree for partition in favour of his transferor co-owner, he can be said to have initiated a legal action for redressal of his decretal right as a stranger transferee. Any legal action taken by anyone for getting redressal from a law court 6 and for vindicating his legal right on which such action is based can be said to have sued in a court of law. Section 4 of the Act has also advisedly used the terminology "sues for partition" and has not confined it only to suits filed by stranger transferee for applicability of Sec.4 of the Act.
7. In Alekha Mantri (supra), the alienee of undivided share of a co-owner in a joint family house was already defendant no.1 in the suit for partition filed by the plaintiff. The question arose before this Court as to whether alienee from the co-owner, who was already defendant no.1 could be subjected to proceedings under Sec. 4 of the Partition Act. A further question arose whether a person who had brought the suit for partition was himself not the stranger purchaser, but one who was a member of the family and when is seeking to purchase the share of the vendee from the co-owner alienating his share in favour of a stranger purchaser and when such a vendee was himself a party to the suit as defendant no.1, could make such a vendee defendant answerable under Sec. 4 of the Partition Act. This Court held that Sec. 4 of the Partition Act would also be applicable where the suit for partition was brought by a member of the undivided family against the stranger transferee and that is not necessary that the latter should have filed the suit. He being a defendant could have specifically claimed a share in the residential house.
8. In Babulal v Habibnoor Khan (Dead) by L.Rs. and others, AIR 2000 SC 2684, the apex Court taking a cue from Ghantesher Ghosh (supra) held that one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the Section is that the stranger/transferee must sue for partition and 7 separate possession of the undivided share transferred to him by the co- owner concerned. It is, of course, true that in the said decision it was observed that even though the stranger transferee of such undivided interest moves execution application for separating his share by metes and bounds it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger transferee. All the same, however, before Section 4 of the Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased. It was further held that if the ratio of Alekha Mantri (supra) 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 (supra) and to that extent it must be treated to be overruled.
9. On the anvil of the decisions cited (supra), the instant case may be examined. Admittedly, defendant no.3 had alienated the undivided interest in favour of defendant no.13. The same is a dwelling house. It is not disputed that the petitioner is a stranger transferee. The assertion of the petitioner is that the plaintiff was aware of the execution of sale deed so also the possession delivered to her by the vendee, and the plaintiff admits her title and possession of the suit land. In the final 8 decree proceeding, an Amin Commissioner was deputed. He submitted the report allotting an area 0.015 dec. appertaining to Khata no.588/5 in favour of the petitioner.
10. As held by Babulal (supra), one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the Section is that the stranger/transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It was observed that even though the stranger transferee of such undivided interest moves execution application for separating his share by metes and bounds it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger transferee. All the same, however, before Section 4 of the Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other co- owner which he would have purchased. The aforesaid condition is totally lacking in the instant case. The stranger purchaser has not filed any application for separating her share from the dwelling house, either at the stage of preliminary decree or final decree or in execution proceeding. Merely because the Amin Commissioner allotted a share in her favour, the same is not per se a ground to file application under Sec. 4 of the Partition Act. The Court has not accepted the said report. Till the stranger transferee moves an application for separating her share, Sec.4 of Partition Act cannot be pressed into service. The inescapable conclusion is that the application filed by the plaintiff in the execution petition is not maintainable.
911. In the wake of the aforesaid, order dated 27.4.2015 passed the learned Civil Judge (Senior Division), Keonjhar in Execution Case No.32 of 2010 is quashed. The petition is allowed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 1st May, 2017/CRB.