Orissa High Court
Sadasiba Alias Sadananda Nayak And Anr. vs Baban Sahoo And Ors. on 4 March, 1994
Equivalent citations: AIR1994ORI247, AIR 1994 ORISSA 247
JUDGMENT
1. Defendants Nos. 3 and 4 are appellants in this appeal.
2. Father of defendants had 8 decimals of land in revenue village Birapratappur. Out of these eight decimals, he sold 4 decimals to plaintiff on 14-3-1975 for a consideration of Rs. 2,000/-. But he continued in possession. After death of father of defendants, there was dispute with plaintiff in respect of his purchased land. Therefore, plaintiff filed O.S. 37 of 1977-1 for title and possession. Suit was partly decreed on 30-10-1978 declaring half interest of plaintiff in the 8 decimals of land and defendants were directed to deliver possession of 4 decimals to plaintiff. Appeal by defendants was dismissed on 14-1-1982. Thereafter, in execution of the decree plaintiff took symbolical delivery of possession as his possession was joint with defendants. To get exclusive possession of his purchased land, plaintiff filed the suit on 14-11-1986 out of which this appeal arises for partition.
3. All the four defendants contested the suit. Defendants Nos. 1 and 2 filed a written statement and defendants Nos. 3 and 4 filed another written statement. Their case amongst others is that suit land being family dwelling house and they being share-holders have right to purchase the 4 decimals of land from plaintiff who is a stranger purchaser at a price to be fixed by the Court.
4. On consideration of materials on record. Trial Court held that Defendants Nos. 3 and 4 have a right of repurchase and directed plaintiff to sale the share purchased by him on receipt of consideration of Rs. 12,500/-which is the value of land on the date of judgment. Plaintiff and Defendants Nos. 1 and 2 have accepted the decree which has become final as against them. Defendants Nos. 3 and 4 have challenged the valuation fixed by trial Court.
5. Under Section 4(1) of the Partition Act, 1893 (hereinafter referred to as 'the Act') Court has been given discretion to make the valuation of land. It reads as follows:--
"4. Partition suit by transferee of share in dwelling house-
(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee make a valuation of such share in such manner as it thinks fit and direct the sale of such share to: such shareholder, and may give all necessary and proper directions in that behalf.
(2) xxx xxx xxx"
6. In order that Court shall be able to make valuation, both parties adduced evidence. Plaintiff examined three witnesses and proved four sale deeds including the sale de,ed under which he purchased which were mark-ed Exts. 1 to 4. Defendants examined two witnesses and proved a sale deed marked Ext. A. Considering the materials on record, trial Court held that the present market value on the date of judgment would not be less than Rs. 25,000/- for the entire property and plaintiff having purchased half the property, market value of the same would be Rupees 12,500/-. Defendants 3 and 4 were held to be entitled to the benefit of repurchase as provided under Section 4 of the Act subject to payment of Rs. 12,500/- within two months, failing which plaintiff was given liberty to effect partition through Court and to make the preliminary decree final.
7. Mr. D. P. Sarangi, learned counsel for appellants submitted that power of Court to 'make a valuation of such share in such manner as it thinks fit' is to be exercised judicially and as such plaintiff is entitled to receive that amount which he paid and not more than that as except purchasing the land he had no further benefit as he was never in possession of the same. Mr. A. S. Naidu, learned counsel for plaintiff-respondent on the other hand submitted that valuation on the date when defendants can effectively purchase the same is the correct determination and date of judgment being the effective date, trial Court has rightly determined the valuation.
8. Rival submissions of learned counsel are not acceptable. If consideration paid by the stranger would have been the valuation to be paid by the shareholder allowed to repurchase, language of Section 4(1) of the Act would have clearly expressed the same. There would have been no scope for the Court to make valuation. This provision was not made with the intention to impose penalty on the tranger purchaser. Equally it was not intended that stranger purchaser would make a profit out of the transaction. Therefore, Court is to make the valuation of the share on the date when the shareholder offered to purchase the land as in case of any contract for sale of land guidelines for determination of market value under Section 23(1) of the Land Acquisition Act, 1894 should be adopted by the Court taking into account those matters which are excluded from consideration under Section 24 of that Act which, though are relevant materials, were specifically excluded for the purpose of that Act. However, circumstances which led to the litigation and conduct of parties would be relevant for the purpose of determination of valuation which would normally be the market value of the land on the date of Expression of willingness of the purchaser. Principle would be what a bona fide purchaser would be willing to pay on the date he expressed willingness to purchase would be the market value.
9. In the present case, defendants Nos. 3 and 4 for the first time expressed their willingness in the written statement filed by them on 14th May, 1987. Accordingly, valuation of land on 14-5-1987 should be the consideration for repurchaser. Mr. D. P. Sarangi, however, referred to the Division Bench decision reported in ILR (1962) Cuttack 458 : (AIR 1963 Orissa 40) (Bhikari Behera v. Dharmananda Matia) where it has been observed (para. 6 of AIR) :--
"Moreover the wordings of Section 4 also give some guidance on this point. Section 4 contemplates a valuation to be fixed when the transferee files a suit for partition, and the Court has been given the discretion to make valuation of the share in such manner as it thinks fit. In my opinion, in the absence of any decision to the contrary, the plain meaning of Section 4 refers to the market value as ruling on the date of the suit and not on the date of sale. With a view to do justice to the parties, the valuation has to be so made so as to be fair both to the stranger-purchaser as also to the co-sharer of the erstwhile undivided joint family. The sale by the stranger to the co-sharer being in the nature of a forced sale, the valuation has to be fixed with great care and caution so as not to cause any hardship to the parties."
This decision has been followed by another Division Bench in the decision reported in ILR (1975) Cuttack 1261 : (AIR 1976 Orissa 62) (Tejpal Khandelwal v. Mst. Purnima Bai). Therefore, my view that valuation is to be made as on the date the co-sharer expresses willingness to purchase cannot be applied and Division Bench decisions that valuation is to be made on the date of suit shall prevail as a judicial discipline since decision of Division Bench is binding on me until overruled by larger Bench of Supreme Court or statutorily its effect is taken away. If there would have been any statutory provision contrary to which the decision would have been rendered without taking note of the same, it would not have any binding effect on me as the statute has greater force than a precedent. This is not the case here.
10. Mr. D. P. Sarangi, learned counsel for appellants submitted that valuation of land on date of judgment by the trial Court is vulnerable and taking note that market value of land increases day by day, the consideration fixed is to be reduced proportionately. He submitted that in 1975 valuation being Rs.2,000/- and in 1991 it being fixed at Rs. 12,500/- there is an increase of Rupees 10,500/- in course of 15 years. Thus, mathematically, for four years the valuation should be reduced by Rs.2,800/-. Besides, being in possession defendants have improved the land for which further deduction is to be made. According to Mr. Sarangi, this would be the irresistible conclusion. Sale deed in favour of plaintiff does not indicate that there was any house or coconut tree. Since defendants are residing on the suit land only inference is that they have constructed the house and planted the coconut trees. Therefore, value of the house and coconut trees are to be deducted.
11. Mr. A. S. Naidu, learned counsel for plaintiff respondent submitted that although plaintiff has not preferred appeal and valuation is to be made on the date of suit as per the decisions of the Division Benches of this Court, he can justify the valuation of Rs. 12,500/- on the date of suit without preferring appeal or cross-objection. There is force in contention of Mr. Naidu. Decree is in his favour that he would receive Rs. 12,500/-from defendants Nos. 3 and 4 and execute the sale deed, Reasons for arriving at the figure is only faulty. If plaintiff would have required more amount, this Court could not have decreed it without an appeal or cross-objection. Similarly, if plaintiff would have challenged the direction to him to sell the land to Defendants Nos. 3 and 4, he could not have challenged the same without preferring appeal or cross-objection. A respondent can support the decree on other grounds available where they are available on the materials if the grounds on which the decree has been passed are vulnerable.
12. Though in the written statement of defendants Nos. I and 2 it has been stated that four decimals of land were purchased by plaintiff from their father on a paltry sum of Rs. 2,000/- impliedly thereby asserting therein that the market value would have been more, in absence of any clear material, I am not inclined to accept assertion in the written statement. In the circumstances, I am inclined to hold that prevailing market value of four decimals of land purchased under Ext. 4 was Rs. 2,000/- as reflected in the sale deed itself, 11 years after when the suit was filed on 14-11-1986, it requires no evidence to come to conclusion that the value of the land has increased. In absence of reliable evidence on either side Court is to make a reasonable guess work depending on presumption of fact basing on the consideration paid by plaintiff. In that view, reasonable conclusion is that value of land in the year 1986, was more than Rs.2,000/-.
13. While Defendant No. 4 in his evidence has stated that value of suit land would be Rs. 7,000/ -, plaintiff asserted that value of suit land would be Rs. 30,000/ -. Value is to be fixed in between the same taking into account that parties might have stated for getting more advantage.
14. It is clear from evidence of Defendant No. 4 that suit land has a house consisting of two rooms two half constructed rooms and 8 to 9 coconut trees. He has stated that suit land is in Mouza Damodarpur which is part of revenue village Bir Pratappur including Chandanpur. Village Damodarpur is adjacent to Chandanpur on crossing the Chan-danpur bridge on Jagannath Trunk road. Land is 100 cubits away from Jagannath Road. Plaintiff has proved three sale deeds which relate to village Chandanpur. Exts. 1 and 2 are dated 16-1-1981 in respect of fraction of a decimal of land. Trial Court has rightly rejected them. Ext. 3 is dated 27-6-1987 in respect of three decimals of land with a thatched house and eight coconut trees where transfer was made for a consideration of Rs. 33,000/-. It is in village Chandanpur. However, it is not adjacent to Jagannath Road and is situated in village Chandanpur as found from the boundary described. This is a contemporaneous transaction of land having similar advantages as the disputed land excepting that being situated in the same village having commercial advantages, it has some better potentialities. But potentialities of disputed land do not vary much as both village Chandanpur and Damodarpur are on two sides of the bridge at Chandanpur. Defendant No. 4 does not claim in his evidence that after sale under Ext. 4 the rooms were constructed on the disputed land by them. He also does not claim that they planted the coconut trees. Even though sale deed (Ext. 4) does not specifically state about existence of house and coconut trees, I am inclined to accept that they were on the land at the time of purchase in 1975. Even if Ext. A is accepted it is in respect of two decimals of land with a thatched house sold on 9-9-1988 for a consideration of Rs. 5,000/-. Nature of the thatched house is not clarified. No material has been produced to come to conclusion that the land under Ext, A has advantages similar to the disputed land. Besides, Ext. A being certified copy of a sale deed whose original is available may not be admissible as secondary evidence as no attempt has been made to call for the original from the Tehsildar. Details of the mutation case in which original is stated to have been filed is not indicated by D.W. 2. In these circumstances, I am inclined to accept Ext. 3 to determine the valuation.
15. Under Ext. B, three decimals of land in Mouza Chandanpur with thatched house and a coconut tree were sold for Rs. 33,000/-. on 27-6-1987. Disputed land measuring 4 decimals with two rooms and two half constructed rooms with 8 to 9 coconut trees were sold in 1975 for Rs. 2,000/-. When on 27-6-1987 consideration under Ext. 3 was Rs. 33,000/- seven months before on 14-11-1986 when the suit was filed, the price might have been slightly less which would have been approximately Rs. 30,000/-. Land and house being in Chandanpur which has commercial importance, for higher potentiality if Rupees 5,000/- is fixed, similar land in Damodarpur would be Rs. 25,000/-. If value of the house is fixed at Rs. 2,000/- and 8. coconut trees are valued at Rs.4,000/-, three decimals of land would have consideration of Rs. 17,000/-. Therefore, determination of Rs. I2,500/- as value of the land even excluding the house and coconut trees would not be unreasonable. On the material available, I am inclined to hold that on the date of suit, valuation of 4 decimals of disputed land was Rs. 12,500/- and defendants Nos. 3 and 4 are to pay the same to plaintiff for purchasing the land.
16. Trial Court directed that within two months of the date of judgment, the amount is to be deposited by Defendants Nos. 3 and 4. Said period has expired even before filing this appeal on 16-3-1991. It will be equitable to extend the time. Therefore, modifying the decree, I hold that defendants Nos. 3 and 4 are entitled to purchase the share of plaintiff in the suit house by depositing Rs. 12,500/- on or before 4-5-1994 in Court failing which plaintiff who is declared to have half interest in the total eight decimal of land shall be at liberty to effect partition through Court by taking steps to make this decree final.
17. In result, appeal has no merit which is dismissed subject to extension of time granted to appellants. There shall be no order as to costs in this appeal.