Procedure vs Smt. Laxmi Sahu And Others
2023 Latest Caselaw 15862 Ori

Orissa High Court

Procedure vs Smt. Laxmi Sahu And Others on 11 December, 2023

                       IN THE HIGH COURT OF ORISSA AT CUTTACK

                                              S.A. No.112 of 2001

                     (In the matter of an appeal under Section 100 of the Code of Civil
                   Procedure, 1908)
                   Khetrabasi Sahu                               ....               Appellant

                                                      -versus-
                   Smt. Laxmi Sahu and others                    ....            Respondents



                   Appeared in this case:-
                          For Appellant           :      Mr. Ashok Mohanty, Sr. Advocate,
                                                            J. Sahu, T. Rath, H. Tripathy, J.
                                                            Patra and M.K. Rout, Advocate

                          For Respondents         :      Mr. P.K. Rath, Sr. Advocate, S.N.
                                                         Biswal, Ms. Shradha Das and P.K.
                                                                      Samantray, Advocate
                                                            (for the Respondent Nos.1 to 5)


                    Appeared in this case:-

                    CORAM:
                    JUSTICE A.C. BEHERA

                                            JUDGMENT

Date of hearing : 30.11.2023 / date of judgment :11.12.2023

A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment.

2. The appellant of this 2nd appeal was the sole plaintiff in the suit vide O.S. No.270 of 1985-I and he was the appellant in the 1st appeal vide T.A. No.42 of 1992.

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The respondents of this 2nd appeal were the defendants in the suit vide O.S. No.279 of 1985-I and they were the respondents in the 1st appeal vide T.A. No.42 of 1992.

The suit of the plaintiff vide O.S. No.279 of 1985-I was a suit for partition and re-purchase of the suit properties.

3. The case of the plaintiff in the suit vide O.S. No.279 of 1985-I was that, their common ancestor was Dhani Sahu. Dhani Sahu died leaving behind his two sons, i.e. Bhaban and Madhei. Bhaban died leaving behind his only son Ananta. Ananta died leaving behind his wife Laxmi (defendant no.1).

The 2nd son of Dhani Sahu, i.e., Madhei died leaving behind his son Rangadhara. Rangadhara died leaving behind his son Khetrabasi (plaintiff).

The aforesaid family pedigree of the plaintiff stated by him in his plaint is depicted hereunder for an instance reference:-

Dhani Sahu (Plaintiff) _______________________________________________________

Bhaban Madhei

Ananta Rangadhara

Laxmi(d-1) Khetrabasi (Plaintiff)

According to the plaintiff, the two sons of Dhani Sahu, i.e., Bhaban, Madhei along with their respective sons, i.e., Ananta and Rangadhara were staying jointly. The suit properties were recorded in the sabik settlement in the name of Ananta and Madhei jointly. But in the // 3 //

major settlement, the suit properties were recorded jointly in the name of Ananta and the plaintiff (Khetrabasi). Their ancestral dwelling house is situated over C.S. Plot No.386 and their tank is on C.S. No.466. He(plaintiff) has half share over the suit properties and the defendant no.1 (Laxmi Sahu) has half share. Till yet, the suit properties have remained as their joint and undivided dwelling house without any metes and bounds partition of the same between them. The defendant no.2 Baishnaba Sahu and as well as his successors, i.e. defendant no.2(ka) to 2(gha) are the strangers to the family of the plaintiff and defendant no.1 and they are also strangers to the suit properties. Till yet, neither the defendant no.2 Baishnaba Sahu nor his successors, i.e., defendant nos.2(ka) to 2(gha) were/are in possession over any portion of the suit properties. But after major settlement operation, when the plaintiff came to know that, the defendant no.2 (Baishnaba Sahu) has purchased Ac.0.10 decimals out of the suit properties from the husband of the defendant no.1, then, he(plaintiff) requested the defendant no.1 on dated 16.11.1985 for metes and bounds partition of the suit properties, to which, she (defendant no.1) refused. So, he (plaintiff) approached the civil court being the plaintiff by filing the suit vide O.S. No.279 of 1985-

I against the defendant no.1 Laxmi Sahu arraying defendant no.2 (so- called purchaser from Antanta Sahu), praying for partition of the suit properties and also to re-purchase of the same from the defendant no.2 through a direction of the court according to Section 4 of the Partition Act, 1893, as he (defendant no.2) is a stranger to their family, for which, he (defendant no.2) cannot have his joint possession of the suit properties with them, because, the suit properties are their joint and undivided dwelling house.

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When, during the pendency of the suit, the defendant no.2 Baishnaba Sahu expired, then his legal heirs, i.e., defendant nos.2(ka) to 2(gha) were substituted in his place.

4. Having been noticed from the court in O.S. No.279 of 1985-I, the defendant nos.2(ka) to 2(gha) contested the suit of the plaintiff by filing their joint written statement disputing the genealogy of the plaintiff stated in his plaint and also denying the averments made by the plaintiff in his plaint taking their stands inter alia therein that, Banamali Sahu was the common ancestor of Dhani Sahu's family. Banamali Sahu had two sons, i.e., Nakhi and Bali. Madhei and Ananta belong to the branch of Bali. Dinabandhu @ Dinei is the son of Nakhi. The defendant no.2 Baishnaba Sahu is the son of Dinabandhu. The defendant nos.2(ka) to 2(gha) are the wife and children of defendant no.2 (Baishnaba).

So, according to the defendant nos.2(ka) to 2(gha), they are not the strangers to the defendant no.1's family. Because, the defendant no.1 belongs to the branch of Bali and they belong to the branch of Nakhi. The projected genealogy of the defendant nos.2(ka) to 2(gha) is depicted hereunder:-

Banamali _______________________________________________________

Nakhi Bali

Dinabandhu @ Dinei __________

Baishnaba(defendant no.2) Madhei Ananta

Laxmi(wife) (defendant no.1) The specific case of the defendant nos.2(ka) to 2(gha) was that, Madhei and Ananta were separated in mess and properties during their // 5 //

life time and they were possessing their ancestral properties separately by distributing the same between them through an amicable partition. They have also transferred their some shares to outsiders according to their separate possession. The homestead land of the defendant nos.2(ka) to 2(gha) is adjacent to the South of their purchased land from the suit properties, which is their ancestral properties. The defendant no.2 {Baishnaba Sahu, father of defendant nos.2(ka) to 2(gha)} had purchased Ac.0.10 decimals through RSD dated 31.12.1970 from Ananta Sahu(husband of the defendant no.1) and the said Ananta Sahu had delivered possession of that sold Ac.0.10 decimals of land from the suit properties to him (Baishnaba). Accordingly, since 31.12.1970, i.e., since the date of purchase, the defendant no.2 (Baishnaba Sahu) was possessing his above purchased land, i.e. Ac.0.10 decimals and after his death, the defendant nos.2(ka) to 2(gha) being his successors, they {defendant nos.2(ka) to 2(gha)} have also been possessing the same peacefully by constructing houses thereon. On the basis of the aforesaid purchase, the suit properties including that Ac.0.10 decimals have been recorded in the name Baishnaba Sahu along with the names of his vendor Antanta Sahu and plaintiff jointly under Khata No.423 and 62 in the major settlement operation vide Plot No.436 and 447. The further case of the defendant was that, the plaintiff has one brother and one sister, namely, Netrananda and Labani, but, the plaintiff has not impleaded them as parties in the suit. For which, the suit of the plaintiff for partition is bad for non-joinder of necessary parties. The plaintiff himself is a stranger to the suit properties, for which, he has no locus standi to file the suit. Therefore, the suit of the plaintiff is liable to be dismissed.

The defendant no.1 was set ex parte without filing written statement.

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5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether seven numbers of issues were framed by the trial court in O.S. No.279 of 1985-I and the said issues are:-

ISSUES

1. Has the plaintiff any cause of action to bring the suit?

2. Is the suit maintainable in the present form?

3. Is the suit liable to be dismissed for non-joinder of parties?

4. Is the suit land undivided homestead of plaintiff and Ananta Sahu, husband of defendant No.1?

5. What are the respective shares of the parties?

6. Is the plaintiff entitled to get relief under Section 4 of Partition Act?

7. What are relief if any?

6. In order to substantiate the aforesaid reliefs sought for by the plaintiff vide O.S. No.279 of 1985-I against the defendants, he (plaintiff) examined three witnesses from his side including him as P.W.1 and relied upon several documents on his behalf vide Exts. 1 to7/K. But, on the contrary, the contesting defendant nos.2(ka) to 2(gha) examined four witnesses on their behalf including the defendant no.2(kha) as D.W.1 and relied upon the documents vide Ext.A to G from their side.

7. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the trial court answered all the issues against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the trial court in al the issues dismissed the suit of the plaintiff vide O.S. No.279 of 1985-I on contest against the defendants as per the judgment and decree dated 30.06.1992 and 16.07.1992 respectively assigning the reasons that, the // 7 //

purchaser of the suit property, i.e., the predecessors of the defendant nos.2(ka) to 2(gha), i.e., defendant no.2-Baishnaba Sahu is not a stranger to the family of the defendant no.1 and plaintiff and at the time of purchasing Ac.0.10 decimals out of the suit properties from the husband of defendant no.1, the status of the his purchased properties were not the undivided dwelling house of his vendor, i.e., the husband of the defendant no.1, for which, the plaintiff is not entitled to get the relief under Section 4 of the Partition Act. That apart, the suit of the plaintiff is bad for non-joinder of necessary parties, i.e., his own brother and sister, namely, Netrananda and Labani. For which, the plaintiff has no cause of action to file the suit. Therefore, the suit of the plaintiff is not maintainable under law.

8. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide O.S. No.279 of 1985-I passed by the trial court, he (plaintiff) challenged the same by preferring 1st appeal vide T.A. No.42 of 1992 being the appellant against the defendants by arraying them (defendants) as respondents.

9. After hearing from both the sides, the 1st appellate court dismissed the 1st appeal vide T.A. No.42 of 1992 of the plaintiff by concurring the findings and observations made by the trial court in the judgment and decree passed against him (plaintiff).

10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the plaintiff vide T.A. No.42 of 1992, he (plaintiff) has challenged the same by preferring this 2nd appeal being the appellant against the defendants by arraying them (defendants) as respondents.

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11. This 2nd appeal has been admitted on the following substantial question of law:-

(i) Whether in view of the admitted position that, lands were joint in the name of the plaintiff and the defendants, finding of the learned courts below that there was partition between the parties and nothing remains to be partitioned and declining to the relief under Section 4 of the Partition Act read with Section of the T.P. Act of the plaintiff is correct?

12. I have already heard from the learned counsels of both the sides.

The witnesses of the plaintiff, i.e., P.W.2 has deposed in para nos.6, 9, 12, 13 of his deposition corroborating the case of the defendant nos.2(ka) to 2(gha) by stating that,

"Baishnaba's (defendant no.2's) house stands over an approximate areas two gunthas. He is seeing that house of Baishnaba since the attainment of his discretion. Homestead land of Baishnaba is situated being adjacent to the suit land. There is no previous dispute between the parties regarding their possession of the suit land. The settlement RoRs in their village have prepared according to the possession of the parties. The parties are in possession according to M.S.-RoR, to which he is seeing since last 20 years. He cannot say, when Ananta executed sale deed in favour of Baishnaba(defendant no.2). Till his death, Ananta was separately possessing his landed properties, to which, he is looking since last 25 years. Ananta has not sold his lands to any outsiders during his life time."

13. As, defendant no.2(Baishnaba Sahu) is a purchaser of the suit properties from Ananta and as Ananta has not sold any portion of the suit properties to any outsider during his life time and the said Ananta Sahu was in separate possession of his properties as per partition with his co-

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sharers prior to the sale of Ac.0.10 decimals to the defendant no.2 and as the defendant no.2 (Baishnaba Sahu) had been possessing to his purchased land separately since the date of his purchases, i.e., since 13.12.1970 as per Ext.A vide RSD No.8112 according to the above versions/depositions of the own witness of the plaintiff, i.e. P.W.2, then, at this juncture the findings and observations made by the trial court as well as the 1st appellate court, basing upon the aforesaid evidence of P.W.2 coupled with the documents, i.e., sale deed vide Ext.A and status of the sold properties at the time of sale, it cannot be held that, the defendant no.2 (Baishnaba Sahu) is a stranger to the family of the defendant no.1 as well as to the suit properties and he has purchased any portion of the undivided dwelling house of the plaintiff.

14. On that aspect the propositions of law has already been clarified in the ratio of the following decision:-

(i) AIR 1959 Orissa-173 : Bikal Swain vrs. Iswar Swain Partition Act (1893), S.4--Scope and object--

Conditions for applicability--Dwelling house not existing at time of transfer but constructed after words--Privilege of S.4 cannot be claimed.

Partition Act, 1893--Section 4 read with T.P. Act, 1882--Section 44--In order to attract the operation of Section4.

(1) There must be a dwelling house in existence belonging to an undivided family;

xx xx xx xx

Where the finding of the Court was that there was no dwelling house belonging to the undivided family in existence on the date of the transfer, the plaintiff is not entitled to the benefit of S.4 of the Partition Act. (Para-6) // 10 //

15. It is undisputed case of the parties that, the sale deed vide Ext.A bearing No.8112 was executed by the husband of the defendant no.1 in favour of the defendant no.2 on dated 31.12.1970. The M.S.-RoR of the suit properties vide Exts.3 and 4 have been published in the year 1984, i.e., 14 years after the execution of the above sale deed vide Ext.A.

16. When, it is forthcoming from the above materials available in the record that, at the time of execution and registration of the sale deed vide Ext.A on dated 31.12.1970, the vendor of the sold land, i.e., Ananta was in separate possession of that sold land due to the falling of the same into his share through partition between him along with his co-sharers, then, at this juncture, only due to the recording of the suit properties jointly much after the execution of sale deed, it cannot be held that, the suit properties were not partitioned and the same had not fallen into the share of the vendor of the defendant no.2, i.e., Ananta Sahu through partition prior to the execution and registration of the sale deed vide Ext.A.

So, by applying the principles of law enunciated in the ratio of the above decisions, the findings and observations of the trial court and the 1st appellate court in their respective judgments and decrees that, at the time of selling of Ac.0.10 decimals out of the suit properties through RSD No.8112 dated 31.12.1970 vide Ext.A, that sold properties were in separate and exclusive possession of the vendor thereof, i.e., Ananta Sahu and that properties were not the joint and undivided dwelling house of the plaintiff cannot be held as erroneous.

17. When the trial court and as well as the 1st appellate court being courts of facts and law have specifically observed, after assessing the oral and documentary evidence of the parties that, the defendant no.2 is not a stranger to the suit properties and as well as to the family of the plaintiff and defendant no.1 and the defendant no.2 (Baishnaba Sahu) and // 11 //

thereafter his successors, i.e., defendant no.2(ka) to 2(gha) have been possessing their purchased land out of the suit properties since the date of their purchase, i.e., since 31.12.1970 and the suit for partition filed by the plaintiff is not maintainable for non-impleation of the necessary parties, i.e., his own brother and sister, i.e., Netrananda and Labani, then at this juncture, the question of interfering with the judgment and decree passed by the trial court in dismissing the suit of the plaintiff vide O.S. No.279 of 1985-I and the confirmation to the same by the 1st appellate court in T.A. No.42 of 1992 are not interferable through this 2nd appeal filed by the plaintiff. So, the appeal filed by the appellant must fail.

18. In the result, the appeal filed by the appellant is dismissed on contest, but, without cost.

The judgments and decrees passed by the trial court in O.S. No.279 of 1985-I and the 1st appellate court in T.A. No.42 of 1992 in dismissing the suit of the plaintiff on contest against the defendant are hereby confirmed.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 11th of December, 2023/ Jagabandhu, P.A.