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Orissa High Court

Brajabihari Bharati vs Subash Bharati & Others on 5 November, 2021

Author: D. Dash

Bench: D.Dash

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                        R.S.A. No.329 of 2017
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment dated 11.07.2017 passed by the
learned Additional District Judge, Nimapara in R.F.A. No.185/128 of
2016/2014confirming the judgment and decree dated 28.08.2014 and
12.09.2014 passed by the learned Civil Judge (Junior Division),
Nimpara in Civil Suit No.237 of 2013.

     Brajabihari Bharati                   ....            Appellant

                                -versus-

     Subash Bharati & Others               ....         Respondents

Appeared in this case by Hybrid Arrangement Arrangement (Virtual/Physical Mode):

      For Appellant      -      Mr.B.K. Ragada, S. Mantry,
                                L.N. Patel, N.K. Das
                                U.C. Dora and H.K. Muduli
      For Respondents -

CORAM:
MR. JUSTICE D.DASH

Date of Hearing : 30.10.2021 :        Datge of Judgment :05.11.2021

D. Dash, J

1. The Appellant, by filing this Second Appeal under Section 100 of the Civil Procedure Code (for short, 'the Code') has assailed the judgment dated 11.07.2017 passed by the learned Additional District Judge, Nimapara in R.F.A. No.185/128 of 2016/2014.

By the said judgment and decree, the first Appellate Court while dismissing the Appeal filed by the present Appellant under section 96 of the Code has confirmed the judgment and decree dated 28.08.2014 and 12.09.2014 respectively passed by the learned Civil Judge (Junior Division), Nimapara in Civil Suit No.237 of 2013.

2. The present Appellant had filed the Suit as the Plaintiff for declaration, confirmation of possession and permanent injunction with the alternative prayer for partition over Schedule-'A' and 'B' properties.

The Suit having been dismissed, the present Appellant being the unsuccessful Plaintiff had carried the First Appeal, which has also been dismissed.

3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

4. The Plaintiff's case, in short, is that the suit property is the self- acquired property of one Bhalu Bharati, who was survived by his two sons, namely, Kulamani Bharati and Panu Bharati.

It is the stated that Kulamani and Panu had partitioned their property and in that amicable partition, the suit property was also the subject matter. It is further stated that the western side of the land described in Schedule-A and B as has been better described in Schedule- C of the sketch map when had been allotted to Panu; the eastern side of Schedule-A and B land specifically shown in Schedule-D has been allotted to Kulamani. One Chaka plot no.348 measuring Ac.0.02 decimals under khata no.77, which is a part of Schedule-B property had, however, not been partitioned and it is said that the Plaintiff is possessing the western half and the Defendants are possessing the eastern half of said land remaining without being partitioned.

Kulamani died leaving behind his three sons. His son, namely, Baidhar is survived by Defendant Nos.1 to 7. They are said to be in joint possession of Schedule-D property, which is the eastern portion of each of the plot of land as indicated in Schedule-A and B whereas the Plaintiff is in possession of the western portion after the death of Panu. So, it is Page 2 of 9 said that over Schedule-C property, the Defendants although have no right, title and interest and possession, yet they are threatening the Plaintiff to dispossess him. So, the Suit has been filed.

5. The Defendants, in their written statement, denied the factum of partition, as pleaded in the plaint. They, however, admit that the land as per the record of right stands recorded in the name of Kulamani and Panu. It is their case that the parties are jointly possessing the Schedule- A and B land and the Plaintiff is not entitled to a declaration of right, title and interest over the Schedule-C property.

6. The Plaintiff's Suit being for right, title and interest, confirmation of possession and permanent injunction over the 'C' schedule land and in the alternative, for partition of Schedule-B land, the Defendants have said that none of the above reliefs are allowable. The alternative prayer for partition is attacked as untenable since other joint family properties which stand recorded in the name of Panu and Kulamani along with some other properties of Mouza-Garapada and Mathasahi and have been purposely left out.

7. On the above rival pleadings, the Trial Court has framed five issues. On extensive discussion of the evidence and their analysis from all angles, first of all, it has been said that the Plaintiffs has failed to prove that there was partition of the properties between Panu and Kulamani. Coming to address the alternative prayer, it has been said that all the properties belonging to the parties having not been brought to the hotchpot partial partition is not allowable. Having said as above, the Suit has been dismissed.

8. The First Appeal being filed by the unsuccessful Plaintiff, the First Appellate Court, taking note of the rival contentions raised from the side Page 3 of 9 of the parties, at paragraph-6 of the judgment, has gone to formulate the points for determination. Those are as under:-

"(I) Whether the suit properties were earlier partitioned and allotted to the ancestors of the Plaintiff and Plaintiff has got right, title, interest and possession over the same i.e, Schedule 'C' property? And (II) Whether the alternative prayer with regard to partition of schedule 'B' properties in absence of other properties i.e, partial partition is maintainable?"

While proceeding to find out the answers of those two formulated points for determination, it appears that the First Appellate court has gone through the evidence available on record and having examined the same at its level, has found no such compelling reason to take any different view from that of the Trial Court; firstly, that there was no partition and secondly the relief of partition as not allowable without inclusion of other properties belonging to the parties.

9. It may be stated here that a petition under Order 41 Rule 27 of the Code having been filed by the Plaintiff for admission of the documents annexed thereto, the First Appellate Court has rejected the same finding that those documents since correspond to sabik and consolidation second part land register relating to Schedule-C and D property which were not included in the original Suit, the prayer is not tenable.

10. Mr.Ragada, learned counsel for the Appellant submits that admission of Kulamani, the ancestor of the Defendants, as regards factum of prior partition in Ext.10 and 11, while alienating the properties to outsider as well as Ext.5, the order of Consolidation Authorities allowing objection for recording of the land in favour of the alienee based on admission of Kulamani and Panu, share noting in Ext.1 and 2 coupled with the admission of D.W.2 ought to have been held to be Page 4 of 9 enough for recording a finding of prior partition in consonance with what have been pleaded by the Plaintiff in the plaint. He, therefore, urges to admit this Appeal so as to answer the above as substantial questions of law.

11. Keeping in view the submission made, I have heard learned counsel for the Appellant and gone the the judgments passed by the Courts below.

12. The land under khata no.76 of Mouza-Garapada as per the record of consolidation operation stands in the name of Kulamani and Panu, which has been marked as Ext.1 and there it is indicted that they have half share each. However, the other record of right with regard to the land under khata no.77 although stands in the name of Kulamani and Panu, yet the same does not find any share note. The record of right (Ext.18) concerning the land under sabik khata no.10 shows that land under sabik plot no.22 and 45 was then in possession of Kulamani, Panu and Shyama as also other recorded tenants. The name of recorded tenant along with ancestors of the parties finds mention in the second part of the land register. Kulamani and Panu's name appear as recorded tenants in the record of right under Ext.1. Similarly, the property under khata no.77 vide Ext.2 concerning plot no.237 and 239 are under Ext.21 and 23 respectively wherein also other co-sharer's name find mention as the recorded tenants. In the consolidation operation, the second part land register shows the same state of affair and final ROR of consolidation operation (Ext.7) was published in the name of Kulamani and Panu and accordingly khata no.77 under Ext.2 has been prepared. The parties admittedly, have taken no step for separate recording of the above lands under separate khata when the Plaintiff has claimed that there was prior partition in respect of the suit plot and he relies on Ext.5, 10 and 11.

Ext.5 shows that Kulamani had executed two sale deeds vide Ext.10 and 11 and in those sale deeds as also Ext.5, the objection case filed by Adhikari Bharati, one of the purchasers of Kulamani during consolidation proceeding providing support to the prior partition as claimed as also possession of the land of Plaintiff's father. The First Appellate Court has referred to these documents as also to Ext.5. An objection case under section 9(3) of the Odissa Consolidation of Holding and Prevention of Fragmentation of Land (OCH & PFL) Act had filed by Adhikari. It was to record his purchased land corresponding to sabik khata no.89 (Ext.7) in his name. That Ext.7 reflected the possession note in favour of Kulamani and Panu so also the name of the ancestors of the parties along with other recorded tenant under khata no.89. The order passed by the Consolidation officer shows that certain land in sabik khata no.89 and sabik khata no.183 have been ordered to be recorded in the name of Kulamani and Panu separately. As against the statement of the Plaintiff that there was prior partition and accordingly the purchased land of Adhikari as well as Kulamani and Panu had been recorded separately under Ext.5, the some does not appear to be so when Ext.5 is perused, which clearly shows that certain properties were directed to be recorded jointly in the name of Panu and Kulamani. Indisputedly, item no.1 relates to consolidation khata no.79 of mouza-Mathasahi, which has been recorded in Ext.D but not included in the Suit. So, the First Appellate Court has said the parties had knowledge about existence of some other land under joint record and possession as such. The factum of partition has accordingly been dismissed. The other contention as to the admission of the vendors in Exts.10 and 11 has also been dealt with in great detail. Scrutinizing the those recitals of documents such as Ext.10 and 11, it has been held that the First Appellate Court that said statement of Kulamani is not consistent under Ext.10 from northern side and Page 6 of 9 Ext.11 from eastern side. Those do not conclusively establish that there was prior partition and the Plaintiff's father was in possession of western side of land whereas the ancestor of Defendant was in possession of eastern side of the land. The oral evidence of Plaintiff (P.W.1) have also been taken note of. This is essentially a finding of fact. The First Appellate Court having made an independent approach to the evidence and upon reappraisal has accepted the finding of the Trial Court on the above scores.

13. A question whether any such fact exists or does not exist is a question of fact and a finding therein is a finding of fact. Where from evidentiary facts and of documents, an inference is drawn as to the existence or non-existence of another fact, then the inference is one of fact; and the question as to the inference, a question of fact. But when the question is whether certain facts give rise to a legal right or liability, the inference is one of law, and the question of such inference, a question of law. The relevancy of evidence is a question of law. Where there is evidence from which a conclusion of fact can be drawn, the weight of the evidence or the sufficiency of proof is a question of fact and the finding of the lower court is not to be interfered with in Second Appeal. The provision of Sections 100 and 101 of the Code taken together distinctly prohibit Second Appeals on questions of fact unless in the process of arriving at a finding of fact the Court has committed an error of law or a substantial error of procedure. It may be that the evidence is unsatisfactory or insufficient, or that it has not been properly appreciated it may be that the High Court is inclined to take a different view or that the decision is open to doubt, it may even be that the finding may seem to be grossly and inexcusably erroneous, still if there is some legal evidence for the finding, and there is no such error or defect as enumerated in Section 100 of the Code, the High Court cannot interfere.

A finding of fact can be set aside in Second Appeal, a) when it is not based on any evidence or on legal evidence or on a judicial consideration of the evidence adduced, b) where the evidence is disbelieved for no reason; c) where it is based on a misconception of the real point in controversy in the case; d), where the conclusion of fact is not warranted by the facts on which it is based or is inconsistent with other findings in the case or is opposed to the case set up by the party in whose favour it is drawn, or is contrary to pleadings and evidence in the case; e) where it is contrary to the facts found or is inconsistent with the statement of reasons therefor in the judgment or is based on quaint reasoning, or is vague, or indefinite or ambiguous; f) where it is arbitrary or vitiated by prejudice, or is based on a distorted view of the evidence, or is based on surmises or extraneous considerations or where no reasons have been given for the finding; g) where material facts or evidence have been ignored in arriving at the conclusion of fact; and h) where finding is perverse in the sense that no normal person could have arrived at that finding.

This Court in seisin of the Second Appeal would not normally venture to reappraise the evidence and reverse the conclusion arrived at by the Courts below. The First Appellate Court is under duty bound to examine the entire relevant evidence having direct bearing on the disputed issue and if the error which arises is of a magnitude that it gives birth to a substantial question of law, this Court will be fully justified in setting aside the finding. (Ref:-Raghunath Behera (Supra))

14. Testing the case in the touchstone of the above settled position of law, this Court finds that the submission that there surfaces substantial questions of law concerning the first point for determination as formulated by the First Appellate Court has no force.

Coming to the alternative prayer of the Plaintiff, when the Courts below have found that there was purposeful non-inclusion of the properties belong to the parties, in the absence of any such detail evidence as to the dealing of those left-out properties belonging to the parties, the Courts below are found to have not fallen in error in rejecting the prayer for alternative partition of only Schedule-B property.

15. For the aforesaid discussion and reasons, the submission of the learned counsel for the Appellant fails. Accordingly, as there surfaces no substantial question of law, the Appeal does not merit admission.

16. In the net result, the Appeal stands dismissed. In the peculiar facts and circumstances of the case, the Parties are, however, directed to bear their respective cost all throughout.

(D. Dash) Judge Basu Page 9 of 9