Laxmidhar Biswal (Since Dead) & vs Rambha Bewa (Since Dead) &
2021 Latest Caselaw 11549 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                  SECOND APPEAL No.217 of 1995
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 11.08.1995 and
01.09.1995 respectively passed by the learned Additional District
Judge, Jajpur in Title Appeal No.16 of 1992 confirming the judgment
and decree dated 07.04.1992 and 15.04.1992 respectively passed by the
learned Subordinate Judge, Jajpur, In Title Suit No.53 of 1984.

     Laxmidhar Biswal (Since Dead) &        ....            Appellants
     Others
                             -versus-

     Rambha Bewa (Since Dead) &             ....         Respondents

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

      For Appellants     -      M/s.A.K. Nath, H. Mohanty and
                                B. Jena
      For Respondents -         M/s.B.H. Mohanty,
                                Sr. Advocate
                                S.C. Mohanty, R.K. Nayak
                                D.P. Mohanty & B. Das
                                (For R.11 to 13)

                                M/s.Rangadhar Behera,
                                S.A. Nayeem and P.K.Patnaik
                                (For R.10)
CORAM:
MR. JUSTICE D.DASH
               Date of Hearing & Judgment : 11.11.2021

D. Dash, J

1. The Appellant, as the Plaintiff, had filed the Suit, i.e, T.S. No.53 of 1984 in the Court of the Subordinate Judge, Jajpur (as then it was). The Suit having been preliminary decreed in part; being aggrieved by the same, the Plaintiff had carried the First Appeal under Section 96 of

// 2 //

the Civil Procedure Code (for short, 'the Code'), i.e, T.A. No.16 of 1992 in the Court of the learned Additional District Judge, Jajpur.

The First Appeal having been dismissed confirming the judgment and preliminary decree passed by the Trial Court, the present Appeal under Section 100 of the code has been preferred.

2. 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.

3. The Plaintiff's Suit for partition has been decreed preliminarily

in part. The land under plot no.582 comprising an area of Ac.0.56

decimals under khata no.96 and the lands under khata no.122 being the

subject matter of the Suit, the Trial court has passed the preliminary

decree as under:-

"Baishnab, Ichha and Poka are each entitled to 1/3rd share from plot no.582 of khata no.96 and from khata no.122 comprising an area of Ac.0.54 decimals. The 1/3rd share of Inchha shall be equally divided between defendant nos.10 and 11. The 1/3rd share of Baishnab shall be taken by defendant no.10 by virtue of gift deed (Ext.A). Plaintiff is entitled to 1/4th share from the share of Poka. Defendant Nos.1 and 2 are jointly entitled to 1/4th share from the share of Poka. Defendant no.3 is entitled to 1/4th share from the share of Poka. Defendant Nos.4 to 9 are jointly entitled to 1/4th share from the share of Poka. Defendant No.3 is entitled to 1/4th share from the share of Poka. Defendant Nos.4 to 9 are jointly entitled to 1/4th share from the share of Poka."

4. The Plaintiff placed the following genealogy in support of his

case:-

// 3 //

RUSHI KESHAB

BAISHNAB RAGHU MANI DASARATHA KASI LAXMIDHAR ICHHA (W) RAMBHA =HARAMANI =TIKILI PLAINTIFF D.3 D.4

PATHANI AKHOJ (Dtr)(D.11) TUNI KUNI TILLA GURI UMA D.5 D.6 D.7 D.8 D.9 GANGADHAR (D.10)

5. The Defendant No.10, on the other hand, contesting the Suit, placed the family tree as under:-

GOBARDHAN BISWAL

RUSHI RAMA KESHAB

BAISHNAB RAGHU POKA ICHHA

PATHANI AKHOJA MANI DASARATHA KASINATH LAXMIDHAR (Dtr) RAMBHA HARA TIKILI PLAINTIFF (D.11) (W) D.3 (W)D.4 GANGADHAR D.10

TUNI KUNI TILA GURI UMA D.5 D.6 D.7 D.8 D.9

It has been stated by the Plaintiff that Raghu died prior to the current settlement while leaving in jointness with Baishnab and, therefore, his interest over the property in question devolved upon Baishnab. Ichha, being the widow of Raghu had no right over the property as she was by then merely a maintenance holder. It is said that in order to provide her with some satisfaction, in the current settlement record, her name had been recorded. Baishnab died leaving behind his son Pathani and a daughter Akhoji (Defendant No.11). Gangadhar, the Defendant No.10 is the adopted son of Pathani and his wife Raja Bewa.

Poka Biswal was the son of Keshab and he had four sons, namely, Mani, Dasarath, Kashi and Laxmidhar, the original Plaintiff. Rambha

// 4 //

(Defendant No.1) is the widow of Mani and Renu (Defendant No.2) is their daughter. Defendant No.3 is the widow of Dasarath whereas Defendant No.4 is the widow of Kasinath. Kasinath's children are Defendant Nos.5 to 9.

It is the case of the Plaintiff that in the suit land, Poka had 8 annas share and Baishnab and Raghu had 8 annas and out of this, exclusive share of the Plaintiff is 2 annas. It is stated that rest 8 annas belong to Defendant Nos.10 and 11. It is also stated that respective parties are in possession of the land, nearly to their respective shares. Stating that on 01.05.1984, the Defendants created disturbance in the peaceful possession of the land by the Plaintiff, he filed the Suit for partition.

6. As per the case of the Defendant No.10, Gobardhan is the common ancestor, who died leaving behind his three sons, namely, Rushi, Rama and Keshab. After the death of Gobardhan, his son Keshab did not like to remain in jointness and so he separated both in mess and estate from Rushi and Rama and that was prior to the revisional settlement. Thus, it is further said that Rushi and Rama thereafter continued to remain in joint both in mess and estate. Keshab died when his son Poka was just two years old and thereafter Rama died leaving behind Raghu as the sole survivor. In the revisional settlement, Baishnab son of Rushi, Raghu son of Ram and Poka son of Keshab were the joint recorded tenants. The Defendant No.10 further states that while Baishanab and Raghu were in joint mess and estate, Poka separated from them like his father. Raghu is said to have died some time after the revisional settlement and it is said that his property devolved on Baishanb as the sole survivor since Raghu's widow Ichaa was only a maintenance holder and she lived with Baishnab. According to the Defendant No.10, Ichha's name appeared in the settlement record

// 5 //

as the recognition of the fact that she was having charge over the property for realization of maintenance. In the year 1928, during current settlement, name of Baishnab, Ichha and Poka were recorded and there was specific note of possession in tune with their possession over the lands in the field. In the current settlement of the year 1928, there was joint note of possession in the name of Baishnab and Ichha in respect of Ac.1.24 decimals and there was separate note of possession in respect of Ac.0.75 decimals in the name of Poka and there was joint recording of the land measuring Ac.0.56 decimals. Ichha died in the year 1964 and Baishnab in the year 1967 whereas Poka met his death in the year 1963. The Defendat Nos.10 and 11 have their claim of 2/3rd share over the suit land. It is the further case of this Defendant that Baishnab, during the life time of Ichha, had gifted 1/3rd share and the rest 1/3rd share belong to Defendant No.10. and thus Defendant No.11 has no share. This Defendant No.10 claims to be the natural born son of Pathani and not his adopted son. It is asserted that Defendant No.11 has no interest over the suit land since Baishanab has gifted his 1/3rd share to Defendant No.10.

7. The Defendant No.11, in his written statement, has stated that Poko had only 1/3rd share in the suit property and Baishnab and Ichha had 1/3rd share each. The Defendant Nos.10 and 11 have 2/3rd share in the suit land. It is said that she and the Defendant No.10 together have 2/3rd share in the suit land. On the death of Baishnab, his 1/3rd share was inherited by this Defendants Nos.10 and 11. So, after the death of Ichha, her 1/3rd share was equally inherited by this Defendant Nos.10 and 11. Defendant No.11 thus claims 1/3rd share from the suit land.

8. On the above rival pleadings, the Trial Court has framed three issues. Those are:-

// 6 //

"(i) Whether Baishnab and Raghu were two sons of Rushi or Raghu was the son of Rama and whether Gobardhan had two sons or three sons;

(ii) Is the suit maintainable?; and

(iii) To what share, if any, the parties are entitled to.""

9. Coming to answer the above issue at (i), upon analysis of the oral and documentary evidence and examination, further culling out the circumstances emanating therefrom, the Trial Court has held as under:-

"...... From the evidence, I believe the pleading of Defendant No.10 and also believe the genealogy furnished by him and come to the positive conclusion that Gobardhan had 3 sons, namely, Rushi, Rama and Kesab and while Baishnab was the sole son of Rushi, Rathu was the sole son of Rama and Poka was the only son of Keshab. Hence, Issue No.1 is answered accordingly."

Proceeding to answer the next issue relating to the maintainability of the Suit and the share that the parties are entitled to the suit property, on analysis of evidence, at the end, the Trial Court has held the followings:-

"8.XX XX XX

Hence, I come to the conclusion that except plot no.582, which has been kept as Ijmile the other plots of khata no.96 are to be excluded from the purview of partition, as the present claim of plaintiff is barred by limitation, and as there was division between sons of Gobardhan, there was separate recording of note of possession in the ROR. However, the present suit for partition is maintainable in respect of plot no.582 as the same was recorded as joint. As regards khata no.122, since it was recorded in name of 3 persons without any note of possession, all the three recorded owners are to be awarded 1/3rd from the said khata and as Ichha was joint with Baishnab, her 1/3rd share is to devolve on Baishnab and from this 1/3rd share of Ichha Bewa, defendant noss.10 and 11 are to take half and half. Since Baishnab during his life time had made the gift in respect of his share in favour of defendant no.10, and had nothing to be inherited at the time

// 7 //

of his death and as the said gift was not challenged by his daughter Akhoji (D.11) at any point of time, the present claim of defendant no.11 in respect of the said gifted property is barred by limitation. The way in 1959 Baishnab made the gift, that too in presence of the present plaintiff, complete to hold that it was not a stealthy act but was to the knowledge of all co-sharers...."

10. The First Appellate Court, on reappraisal of the evidence, has answered that Issue No.1 agreeing with the answer recorded by the Trial Court.

11. In answering the issue no.(ii), the Trial Court has discussed the following:-Coming to address the finding on Issue Nos.2 and 3, the First Appellate court has held as under:-

"10. So far issue nos.2 and 3 are concerned, the plaintiff has not spelled out when Poka, Ichha and Baishnab died and D.10 falls to give the date or year of the death of those persons. Since from the ROR, it is clear that Baishnab and Ichha were living jointly and Poka was separate from the, so it matter litter whether Baishnab and Poka had pre-deceased Ichha, or not. D.11 has not been able to prove her plea that she was looking after the land of Ichha. No rent rec eipt or any other document is filed in that behalf. Since Baishnab has already gifted his interest vide Ext.A from the lands jointly recorded in his name and name of Ichha i.e, ½ share, then nothing is left for inheriting the same and during her life tgime D.11 has not challenged about the gift deed, which was in presence of the plaintiff. So after discussing the evidence on recor,d it is found that the learned court below has made allotment of shares in respect of the poerty available for partition in his order. There is nothing to differ from the finding. Hence, these issues are found to have been answered correctly."

12. In course of hearing, learned counsel for the parties have submitted that the following be taken up as the substantial question of law involved in this case for being answered:

// 8 //

"Whether the findings of the Courts below in answering issue no.1 as well as issue nos.2 and 3 suffer from the vice of perversity.?"

Accordingly, they have advanced their rival submissions.

13. Learned counsel for the Appellant submits that the Courts below, while answering issue no.1 have erroneously rejected the sale deed dated 16.07.1913 which clearly indicates that Raghu was the son of Rushi and thus have not properly allotted the shares. It is further submitted that the evidence of the two witnesses, i.e, Defendant Nos.1 and 2 as well as the evidence of the Plaintiff have not been properly appreciated and the material evidence have been bypassed or ignored. According to him, the genealogy given by the Plaintiff ought to have been found to be the right one.

It is next submitted that the Courts below having not appreciated the documents, i.e., Ext.A, B and C in their proper perspective, thus have fallen in grave error in answering the issues.

Learned counsel for the Respondents 10 as well as Respondent No.2, 11 to 13, placing the evidence on record, submits that the Courts below have made the right approach in proceeding the evidence and upon their analysis from all angles, have returned the findings in finally preliminarily decreeing the Suit in part.

At this stage, it may be stated that the original plaintiff having died during Appeal, now his legal representatives upon being substituted are pursuing this Appeal.

14. As against the averments made in the plaint that Baishnab and Raghu were two sons of Rushi, during the examination, the Plaintiff (P.W.1), as the sole witness from his side, has deposed that Hrushi had two sons, namely, Baishnab and Raghu. It is only during his examination, he has said that Hrushi and Keshab were the two sons of

// 9 //

Gobardhan when nothing about such relationship is averred in the Plaint.. Defendant No.10 having placed the genealogy in the written station has stated that Rushi, Rama and Keshab are the trhee sons of Gobardhan and Rama had a sonnamed Raghu and Rushi's widow is Iccha. P.W.1 states that Rama to be having no connection with the family and Raghu to be one of the sons of Rushi or Hrushi but refers to Rushi. D.W.2 who is the husband of Defendant No.11, in the absence of any genealogy being there in the written statement of the Defendant No.11, has states that Baishnab had a brother named Raghunath, but at the same time, he has stated that Ichha had 1/3rd share which contradicts his version in the sense that if Raghu was the son of Rushi, Ichha can have only 1/4th share and not more. D.W.3 has not been able to state the father's name of Raghu though this D.W.3 claims to have the acquaintance with family.

The Plaintiff, P.W.1, has admitted that there was recording of note of possession in the record of right and it was in consonance with the possession of the land in the file. This runs in favour of the pleadings of Defendant No.10 in his written statement. Under the circumstance, the Courts below having accepted that Baishnab and Ichha were living jointly and so there was joint recording of note of possession in their favour in the ROR concerning suit khata no.96, are absolutely right. The revision settlement khatians; Ext.B and C proved from the side of the Defendant No.10 indicate that Raghu is the son of Rama. Those also reflects that Baishnab to be the son of Rushi, Poka as the son of Keshab and Raghu as son of Rama. The ROR has been prepared in the name of three persons. Thus, the evidence of P.W.1 that Rama is no way connected with the family has been rightly held to be not acceptable at all that is rather falseshood. As these two documents clearly support the case of the Defendant No.3 that Gobardhan had

// 10 //

three sons, namely, Rushi, Rama and Keshab. As deposed by D.W.1 Keshaab had separated prior to current settlement operation from Rushi and Rama, so there was joint recording of note of possession in favour of Baishnab, son of Rushi and Ichha, widow of Raghu. This ROR of the year 1928. Baishnab has executed a deed of gift on 11.12.1959 (Ext.A) and that is in relation to half of the property in which there was joint note of possession in his name as well as in the name of Ichha. He has, however, gifted his 1/3rd right form the joint (izmile) plot. So, Baishnab and Ichha as having eight anas share over the suit land, Baishnb, instead of gifting away foiur annas, could not have gifted 1/3 share from the land under that khata which was recorded in his name along with Ichha and Poka. In view of such evidence on record and the inference drawable therefrom, the findings of the Courts below that the genealogy as presented by Defendant No.10 stating that Gobardhan thad three sons, namely, Rushi, Rama and Keshand and that Baishanab was the only son of Rushi whereas Raghu was the only son of Rama and Kesab's only son was Poka is not found fault with. The Plaintiff having not filed any such documentary to substantiate his claim, the Courts below had no scope to arrive at a different conclusion. The Plaintiff when has pleaded that Baishnab and Gangadhar have made some transfers of land from out of the suti land, he has not filed any document to that effect to show that they were exercising the rights over those properties. Thus, this Court is not in a position to set at naught the aforesaid well reasoned finding returned by the Courts below on Issue No.1 holding that Gobardharn had three sons, namely, Rushi, Rama and Keshaba; Baishnab was the only son of Rushi, Raghu was the only son of Rama and Keshab's only son was Poka.

15. The Plaintiff has stated that Poka died after Ichha and Baishnab had pre-deceased Ichha. Admittedly, Ichha died issueless. The

// 11 //

Defendant Nos.10 and 11 have tendered evidence that Poka had died prior to Ichha and Baishnab had died after Ichha. The year of death has not been stated in the plaint and it is the averment of the written statement of Defendant No.10 that Poka had died one year prior to the death of Ichha. Under the circumstance, the Courts below, relying on the record of right, having come to a conclusion that Baishnab and Ichha were living jointly and Poka was separated from them having said that whether Baishnab and Poka had pre-deceased Ichha is immaterial are absolutely right. With such evidence on record, keeping in view the manner of the recording of the land in the ROR, the Courts below, in my view, have come to the right conclusion that three sons of Gobardhan were separated prior to 1928 settlement. Baishnab, under the gift deed (Ext.A), has exercised his right in respect of the plots in which there was joint note of possession in his name and Ichha Bewa and had donated exactly half from that, which rather supports the factum of partition.

The manner of recording of the land under khata no.96 has next been taken into account. Here, there was separate note of possession in the name of Poka in respect of land of Ac.0.75 decimals and there was joint recording in the name of Baishnab and Ichha in respect of land of Ac.1.24 decimals while the land under plot no.582 has been described as 'Puruna Padia' for an area of Ac.0.56 decimals as joint (ijmile). From such recording of note of possession in the old ROR, the Trial Court having held that it must have been prepared giving regard to the family arrangement, this Court also finds that on the obtained evidence, it is the right inference and not merely the conjecture or surmise. The other inferences drawn be quoted hereinbelow:-

"8.xx xx xx.

From the total extent of Ac.2.55 of khata no.96, there was separate recording of note of possession in respect of ac.1.09

// 12 //

leaving a plot of Ac.0.56 decimnal to be joint and Ac.0.75 deci was recorded to be under possession of Poka though legally he would have been entitled o around 0.66 decimals. This arrangement must have been made as Ichha had no issue. From the gift deed of 1959 (Ext.A), I have every reason to believe that Baishnab and Ichha were exercising right in respect of the plots in which there there was jont recording of notge of possession in their favour and that will indicate that as there was division between Poka on one hand and Baishnab and Ichha on the other hand, there was recording in such manner in the ROR of Khata No.96. Since Parties have been under the impression that they were owners in respect of the properties in which there was exclusive note of possession in the remarks column of the ROR, to divide the same at present afresh shall create a topsy-turvy position."

With all what have been discussed, this Court finds no element of perversity in the matter of approach of the Courts below in appreciating the evidence to arrive at the conclusion. Thus, the findings of the Courts below are not seen to be suffering from the vice of perversity.

16. In view of all these aforesaid, the answer to the substantial question of law, as stated above, finds it answer in the negative.

17. In the result, the Appeal stands dismissed. However, there shall be no order as to costs. The judgment and the preliminary decree passed by the Trial Court as well as the First Appellate Court are hereby confirmed.

(D. Dash) Judge

Basu