Orissa High Court
Gopabandhu Behera (Dead) And Anr. vs Tulasi Kashi Patra And Ors. on 4 March, 1987
Equivalent citations: AIR1987ORI247, AIR 1987 ORISSA 247
JUDGMENT S.C. Mohapatra, J.
1. This First Appeal by the defendants Nos. 1 and 2 arises out of a final decree for partition.
2. Plaintiff and defendant No. 3 are co-widows of Krushna Behera, brother of defendant No. 1. Defendant No. 2 is the son of defendant No. 1. The suit was for recovery of possession and mesne profits from defendants Nos. 1 and 2 of the properties mentioned in Schedules 'A', 'B' and 'C' of the plaint for the benefit of plaintiff and her co-widow, defendant No. 3.
3. Plaintiffs case, in short, was that there was partition between her husband and his brother, defendant No. 1, in which Schedule 'A' properties fell to the former's share. Thereafter, the former acquired some properties as mentioned in the plaint. Defendants Nos. 1 and 2 were forcibly amalgamating those properties with their lands for which the suit had to be filed. Defendants Nos. 1 and 2, while not disputing the previous partition and self acquisition of some of the properties by the husband of the plaintiff, disputed the correctness of the Schedules. In their written statement the properties were described in a Schedule.
4. During pendency of the suit, parties settled their dispute and filed an application under Order 23, Rule 3, C.P.C. for disposal of the suit on compromise. In the application, the parties expressed their consent to the substitution of the properties described in the Schedule 'A' of the plaint by Ac.9.25 decimals as specified in the application. They agreed that the house would be possessed separately as stated in the petition and the substituted Ac.9.25 decimals would be the joint family properties to be divided among the parties where the share of the plaintiff and defendant No. 3 would be Re.0-3-6 each and that of defendants Nos. 1 and 2 would be 9 annas. Ac.9.01 decimal of property described in the petition was agreed to be the self acquisition of the husband of the plaintiff which the parties agreed that the plaintiff and defendant No. 3 would enjoy half and half. It was further agreed that the properties of the plaintiff and defendant No. 3 would be widow's estate. A decree on the basis of the compromise was passed which was a preliminary decree in respect of the properties to be partitioned.
5. After the suit was disposed of on 19-4-1952, on the basis of the petition for compromise dt. 2-4-1952 plaintiff filed an application on 2-4-1955 which was registered as Execution Case No. 51 of 1955. That application was rejected on the ground that the application for execution would not be maintainable in the absence of a final decree which was upheld by this Court in Miscellaneous Appeal No. 43 of 1960 disposed of on 21-12-1961.
6. After disposal of the Miscellaneous Appeal, Plaintiff applied for final decree on 2-3-1968. In the said application, the prayer was made for appointment of a Commissioner to divide the lands. The said application was resisted by objection dt. 10-2-1969 on the ground amongst others that the application was barred by limitation and that the plaintiff having alienated her interest has no locus standi to maintain the application for a final decree. Trial Court held that the application was not barred by limitation. While finding that the application by the plaintiff was maintainable, it was ordered that the Commissioner is to be deputed for partition of lands as per the terms of the compromise decree and for allotment of the plaintiffs share to her which would be allotted to her alienee T. Kasi Patra. Defendants challenged the said order in Civil Revision No. 303 of 1969. During the pendency of the Civil Revision, T. Kasi Patra filed an application under Order 22, Rule 10, Civil P.C. for being substituted in place of the plaintiff. However, the trial Court did not pass any order on such application on account of the pendency of the Civil Revision. The application for final decree was held not to be barred by limitation. On the question of maintainability of the application by the plaintiff, it was held in the Civil Revision :
"........So far as the plaintiffs right to continue the final decree proceeding, I see no ground to find against her. She has title. So far as the defendants are concerned, they are not entitled to dispute her status. If there has been any loss of title, it is between her and her transferee. The alienor has a duty to put the alienee in possession. Therefore, if the plaintiff proceeds for the final decree it would really enure to the benefit of her transferee. The learned trial Judge has, therefore, rightly permitted her to continue the final decree proceeding."
As regards the application of Shri T. Kasi Patra under Order 22, Rule 10, C.P.C. pending in the trial Court, no final order was passed in the Civil Revision and the matter was sent back to the learned trial Judge to dispose of the said application.
7. After disposal of the Civil Revision on 5-8-1970, by order dt. 18-12-1970 the trial Court allowed the application of Shri T. Kasi Patra to be added as a party. Against the said order, Misc. Appeal No. 1 of 1971 was filed. During pendency of the Misc. Appeal, the report of the Commissioner was accepted by order dt. 12-2-1971 and it was directed to draw a final decree. In the Misc. Appeal the further proceeding of the final decree was stayed. Thereafter, Misc. Appeal No. 1 of 1971 was dismissed by order dt. 10-3-1972. While dismissing the appeal, it was directed that the question relating to life estate of the plaintiff would be considered by the trial Judge by looking into the various proceedings connected with the suit to find out whether the question would be left open undecided or the same has already been adjudicated upon. On 21-4-1972, the parties agreed before the trial Court that the proceeding can be made final on leaving open the question of interest of the plaintiff to be life estate to be determined in an appropriate proceeding. After the final decree was passed, this appeal has been filed against the same. During pendency of the appeal, the plaintiff died and her name was expunged with a prayer to take additional grounds available consequent upon the death of the plaintiff. It was directed that the application for additional grounds shall be considered at the time of hearing.
8. Mr. R. K. Mohapatra, the learned counsel for the appellants, challenged the decree on the following grounds during the hearing of the appeal.
(a) The decree for partition on the basis of the compromise is void ab initio being in respect of property which was not subject-matter of the suit;
(b) The preliminary decree for partition is contrary to law since both the parties agreed that there was a previous partition;
(c) The final decree is bad on account of non-consideration of the direction in M.A. No. 1 of 1971 by order dt. 10-3-1972;
(d) The Commissioner did not give adequate opportunity to defendants Nos. 1 and 2 to be present at the time of allotment;
(e) The allotment on the face of it is inequitable; and
(f) the plaintiff having a widow's estate, her interest devolved on the death of the plaintiff during appeal on the appellants who are her reversioners and the direction for putting T. Kasi Patra in possession of plaintiffs lands sold to him cannot be sustained.
Each of the above grounds requires careful consideration.
9. Mr. R.K. Mohapatra, contended that the decree is void since the properties now sought to be partitioned were not in the suit originally. It is true that the properties which were claimed to be joint family properties fell to the share of the husband of the plaintiff in partition as alleged in the plaint. However, in the petition both the parties agreed that the properties now sought to be partitioned are the joint family properties and should be substituted in place of the 'A' schedule properties in the plaint. This in effect is amendment of the plaint by consent of parties. If an application for amendment of the plaint would have been filed and both parties would have agreed, the Court would not have refused the prayer since there was no bar for the amendment and the real dispute was going to be resolved. There was no question of limitation or deficit court-fee. The conduct of the plaintiff was not such that the amendment would have been refused without ground. Even without prayer in facts and circumstances, Court could have passed a decree for partition where the relief was for recovery of possession. Merely because the formal application for amendment has not been filed, it should not be allowed to be agitated for the first time in this First Appeal filed twenty years after the preliminary decree that the properties were different. The appellants had opportunity to agitate the same in the Civil Revision when the maintainability of the final decree proceeding was assailed on other grounds. In the background of the aforesaid facts and circumstances, I am inclined to hold that the properties substituted are the subject-matter of the suit and the preliminary decree was not void.
10. Even assuming that the properties sought to be partitioned are not the subject-matter of the suit, the result would not be different. Mr. Mohapatra submitted that Order 23, Rule 3, CPC. as it stood in the year 1952 when the decree was passed on adjustment, does not empower the Court to pass an effective executable decree in respect of the properties which were not subject-matter of the suit. This provision was amended by this Court in the year 1954. The amendment would be prospective and would not be attracted. The provision was substituted in Section 74 of the Act 104 of 1976 which section was brought into force on 1-2-1977 during pendency of this appeal. Some provisions as amended in the aforesaid Act were made retrospective. However, Order 23, Rule 3, C.P.C. as substituted by Section 74 was specifically provided in Section 97(2) thereof not to apply to pending proceedings. This has been the consistent view of this Court in I.L.R. (1979) 1 Cut 171 : (AIR 1980 Orissa 107), (Bhajagovinda Maikap v. Janaki Dei) and in AIR 1983 Orissa 187 (Shyam Sundar Choudhury v. Judhistir Jena). Therefore, Mr. Mohapatra is correct in his contention that Order 23, Rule 3, C.P.C. asitstood in the year 1952 would be applicable to this case.
The provision, however, would not be of any assistance to the appellants. It has been held in I.L.R. (1970) Cut 508 : (AIR 1970 Orissa 22), (Jogi Das v. Fakir Panda), that the phrase 'so far as it relates to the suit' as used in Order 23, Rule 3, C.P.C. is different from 'subject-matter of the suit or proceeding'. It is of wider import and would engulf within its scope the terms which form the consideration for adjustment of the matters in dispute and may contain within its scope extraneous matters whether they form the subject-matter of the suit or not. This view has been reiterated in the decision reported in (1977) 19 OJD 383 : (AIR 1977 Orissa 198), (Prafulla Chandra Deo v. Kasinath Misra). Therefore, in order to be successful, Mr. Mohapatra is required to satisfy that the compromise does not relate to the suit.
11. In support of the contention that the compromise does not relate to the suit, Mr. Mohapatra relied upon the decision reported in (1976) 42 Cut LT 1277 : (AIR 1977 Orissa 82), (Chandra Sekhar Patel v. Ukiabati Patel) and developed the same by relying upon the decision reported in ILR (1979) 1 Cut 171 : (AIR 1980 Orissa 108) (supra). He submitted that the recording of the compromise cannot be challenged which would only be an agreement enforceable in another suit and the decree would not be executable. He relied upon the Bombay and Calcutta view by referring to the decisions of those Courts which had been considered in the decision reported in (1976) 42 Cut LT 1277 : (AIR 1977 Orissa 82) (supra). There can be no dispute about the broad proposition. Whether the recording of the compromise would be a decree, would depend on the facts and circumstances of each case. As has been held in (1976) 42 Cut LT 1277 : (AIR 1977 Orissa 82) (supra) ;
"In view of the rival contentions of the parties it is necessary to examine the frame of the suit, the reliefs claimed and the reliefs allowed by the decree on adjustment and from such examination to ascertain whether the terms sought to" be enforced related to the suit....."
12. Schedule 'A' of the plaint was substituted. These substituted properties are being divided. Thus, the language of the terms of adjustment makes it clear that the terms in the petition for compromise related to the suit. Though originally the relief sought was for recovery of possession, by consent it was one for recovery of possession of some properties and partition of some others. This relief was granted. Accordingly, this contention of Mr. Mohapatra, has no force. Hence, for appreciating the contention of Mr. Mohapatra, the frame of the suit, the relief claimed and the reliefs allowed by the decree on adjustment are to be examined.
13. Mr. Mohapatra contended that there is no scope for further partition where both the parties agreed that there was a previous partition. While objecting to the maintainability of the final decree proceeding for partition at the instance of the plaintiff this point could have been raised. In the Civil Revision it has been held that the final decree proceeding is maintainable. Therefore, the challenge at a belated stage when the maintainability of the final decree proceeding has been finally decided in the Civil Revision, is not permissible.
14. Even if the appellants can raise the question in this first appeal, it will not be answered in their favour since both the parties expressed not to act upon the admission of previous partition explaining the reason for the same. Thus, the subsequent admission that the lands are joint to be partitioned shall prevail over the earlier admission. There is, thus, no merit in the contention of the learned counsel for the appellants.
15. Mr. Mohapatra contended that the final decree is bad since the trial Court did not consider the direction in M.A. No. 1 of 1971. After both the parties agreed on 21-4-1972 to leave open the question, the trial Court cannot be blamed. The order-sheet of 21-4-1972 reads as follows :
"Parties present. They agree that the proceeding be made final but it be left open to be determined in appropriate proceeding whether interest of the plaintiff was only that of a life estate or not.
Later 21-4-79 Record is put up by office. Prepare final decree so far as allotment is concerned Mesne profit matter may be gone into whenever moved. Call for stamp papers."
After the aforesaid order by agreement, there is no scope for the appellants to make a grievance of the same.
16. Mr. Mohapatra makes a grievance that the appellants did not get adequate opportunity from the Commissioner to have their say on the question of allotment. The Commissioner did not visit the spot. He did not reach the village till 11 A.M. Defendant No. 2 who was the Sarpanch had to leave the village to attend an urgent meeting at the Block Office. The request to the Commissioner to wait for some time for defendant No. 2 to return was not accepted.
17. The appellants do not make a grievance that the Commissioner did not give notice. If no notice would have been given, the report of the Commissioner would have been set aside on account of non-observance of the mandatory provision under Order 26, Rule 18, C.P.C. In this case, the submission is that no reasonable opportunity was given. Appellants did not dispute that they had received notice of the Commissioner. Appellants are father and son. They were given jointly nine annas share in the decree. No material has been brought to record to indicate that defendant No. 1 was not competent to protect the joint interest of his son defendant No. 2. Absence of defendant No. 2 to attend a meeting of the Block as Sarpanch is not a sufficient cause. In case the subject-matter of such meeting and the absolute presence of defendant No. 2 in that meeting would have been specifically stated, the question would have been examined by me. A vague statement that defendant No. 2 was to attend an urgent meeting does not inspire me in the facts and circumstances to set aside the Commissioner's report. The Commissioner went to the village and in absence of any acceptable material, I am satisfied that he went to the spot. This contention of Mr. Mohapatra is not acceptable.
18. Mr. Mohapatra submitted that the allotment of the areas as per the preliminary decree is inequitable on the face of it. Any of the appellants have not been examined as witnesses. A perusal of the report of the Commissioner does not support the objection on this score. The contention has also no merit.
19. The last contention is that on the death of the plaintiff the properties reverted back to the appellants. Since the parties agreed that the question would be determined in a separate appropriate proceeding, I leave the matter open where evidence would be gone into regarding the purpose of transfer also.
20. In the result, the appeal has no merit which is accordingly, dismissed. No costs.