Abdul Hanan Khan (Dead) By Lrs vs Dayan Khan (Dead) By Lrs And
2023 Latest Caselaw 14389 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                       SA No.112 of 1993

  Abdul Hanan Khan (Dead) By LRs        ....            Appellants
  and others
                                    Mr. S.K. Mohanty, Advocate


                             -Versus-


  Dayan Khan (Dead) By LRs and          ....          Respondents

others Mr. D.P. Dhal, Advocate

CORAM:

JUSTICE R.K. PATTANAIK

DATE OF JUDGMENT: 13.11.2023

1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is filed by the appellants assailing the impugned judgment and decree promulgated in Title Appeal No.35 of 1991 by the learned Additional District Judge, Jajpur, whereby, the decision of the learned Sub-Ordinate Judge, Jajpur in T.S. No.5 of 1986 was set aside excluding the suit schedule land from the hotchpotch partition on the grounds inter alia that the same is illegal and hence, not tenable in law and thus, liable to be interfered with.

2. The appellants are the successors of the plaintiffs, who instituted the suit in T.S. No.5 of 1986 for partition of the schedule property which corresponds to Lot Nos.4 and 5 with allotment of 1/3 share each including defendant Nos.1 to 3. The said suit was contested by above defendants, who filed a joint Writing Statement (WS). Ultimately, the suit was disposed of and decreed against defendant Nos.1 to 3, 5 and 6 on merit and ex- parte vis-à-vis defendant No.4, consequent upon which, the

Abdul Hanan Khan (Dead) By LRs & others Vrs. Dayan Khan (Dead) By LRs & others

learned Sub-Ordinate Judge, Jajpur directed the parties to partition the property in question within the stipulated period each being entitled to 1/3 share, failing which, the plaintiffs having the liberty to seek division and allotment of shares by due process of law. Being aggrieved of, defendant Nos.1 to 3 filed the appeal and as mentioned earlier, Title Appeal No.35 of 1991 was allowed overruling the decision in the suit. Since dissatisfied with the impugned judgment and decree in Title Appeal No.35 of 1991, the appellants as the successors-in-interest approached this Court challenging the same.

3. Heard Mr. Mohanty, learned counsel for the appellants and Mr. Dhal, learned counsel for the respondents.

4. The plaintiffs filed the suit for partition, wherein, the learned Sub-Ordinate Judge, Jajpur framed the following issues, namely, whether Lot No.4 and 5 are joint family properties or self- acquired interest of Sovan Khan? (ii) Is the suit maintainable? (iii) To what share, the parties are entitled? and (iv)To any other relief, the parties are entitled to?

5. Considering the evidence received from the parties, the Trial court reached at a conclusion that Lot Nos.4 and 5 have not been included in the partition which was held in the year 1954 under Ext.1, a registered partition deed. It has also been concluded that the property in question belongs to the joint family, so therefore, the members of each of the branches are entitled to 1/3 share. Furthermore, it has been held and concluded in the suit that fraud has been played with regard to the settlement of the property in dispute which is based on a manufactured 'hatpatta' referring to which lease in respect thereof measuring Ac.0.92 decimal appertaining to Plot No.673 and Plot No.440 was claimed leading to the order passed in Misc. Case No.1679 of 1982 i.e. Ext.C. With such a conclusion reached at, the suit of the plaintiffs

Abdul Hanan Khan (Dead) By LRs & others Vrs. Dayan Khan (Dead) By LRs & others

was preliminarily decreed on contest against defendant Nos.1 to 3, 5 and 6 with a direction to amicably partition Lot Nos.4 and 5 or to effectuate the same by process of court. The learned Lower Appellate Court was, however, of the view that Ext.C clinched the issue between the parties and when there was no appeal preferred against the order of the competent court, the settlement in respect of Lot Nos.4 and 5 has become final which cannot be reopened in a suit. In other words, the suit was dismissed allowing the appeal on contest excluding Lot Nos.4 and 5 from being partitioned.

6. Mr. Mohanty, learned counsel for the appellants submits that the Lower Appellate Court fell into serious error while upsetting the decision in the suit. It is contended that Ext.C dated 29th July, 1983 passed in Misc. Case No.1679 of 1982 which regularized the tenancy in respect of the disputed properties is not in accordance with Section 8(1) of the OEA Act and hence, the same is without jurisdiction which raises substantial question of law for decision and that apart, 1st proviso to Section 5(i) of the OEA Act has not been complied with the fact which was lost sight of by the Lower Appellate Court. It is further submitted that bar under Section 39 of the OEA Act is inapplicable since Ext. C is a decision which is not tenable in law. It is also contended that a portion of the disputed property measuring Ac.0.28 decimal said to have been included after order in Misc. Case No.1679 of 1982 which has since been acquired by the wife of common ancestor, it could be held in favour of one of her sons on the strength of an unregistered lease deed. It is lastly contended that in view of the principles applying to Mohammedans, any such property acquired in the name of managing member of the family and it is proved that the same is possessed by all the members jointly, the presumption shall be that the property belongs to the family and not separate interest of the member in whose name the same

Abdul Hanan Khan (Dead) By LRs & others Vrs. Dayan Khan (Dead) By LRs & others

stands and the burden to establish it to be a separate property so held by one of the members would arise only if the same is held commonly and the entire family lives in commensality and as by the time, the disputed properties were acquired, the family was in jointness and hence, it has to be held as belonging to the family of the parties and not the separate interest of Sovan Khan, the predecessor-in-interest of defendant Nos.1 to 3.

7. On the contrary, Mr. Dhal, learned counsel for the respondents submits that the learned Lower Appellate Court did not err while setting aside the judgment and decree in the suit since Lot Nos.4 and 5 exclusively belong to Sovan Khan having been settled with him under the provisions of the OPLE Act. The conclusion of the court in appeal that order under Annexure-C has not been challenged and became final is also justified. It is further contended that the law on presumption which is applicable to a Hindu Family does not apply to Muslims and in support thereof, he refers to a decision of Madras High Court in the case of Mohammed Ibrahim Vrs. Syed Muhammad Abbubakker and others AIR 1976 Madras 84. In so far as, the joint interest vis-à-vis Lot Nos.4 and 5 is concerned, Mr. Dhal, learned counsel for respondent Nos.1 to 3 refers to the evidence on record and submits that there is no material to satisfactorily suggest that such properties were acquired with the contribution of the family.

8. Following are the substantial questions of law which needs determination:

(i) Whether Lot Nos.4 and 5 to have acquired when the family was in jointness and out of the joint nucleus?

(ii) Whether such acquisition of Lot No.4 and 5 is on account of the contribution received by Karta of the family and hence, it is liable for partition with entitlement of 1/3 share each?

Abdul Hanan Khan (Dead) By LRs & others Vrs. Dayan Khan (Dead) By LRs & others

(iii) Whether defendant Nos.1 to 3 acquired exclusive interest over and in respect of the schedule property in view of Ext.C for a decision not to be challenged in view of Section 39 of the OEA Act?

9. In course of hearing, a decision in Achutananda Swain Vrs. Hadibandhu Swain and others 1986(II) OLR 427 is referred to in order to contend that bar under Section 39 of the OEA Act is applicable and the suit to be maintainable. In the decision (supra), this Court held and observed that settlement of lease created by the ex-proprietor prior to 1st January, 1946 cannot be questioned under the OEA Act and any such tendency in terms of Section 8(1) thereof not to be enquired into by the OEA Authority which is only to be declared. Since, there was no order in any of the provisions related to Chapters-II to IV of the OEA Act and provisions of Section 5(i) not to be applicable and as the order under Section 8(1) thereof was without jurisdiction, this Court therefore, held therein that the suit is not bared under Section 39 of the OEA Act and hence, maintainable. In so far as Section 5(i) of the OEA Act is concerned, it in relation to settlement of the land consequent upon vesting in the State, wherein, it is stipulated that in case any such settlement of lease of any land etc. comprised in such estate made or created at any time after 1st January, 1946, the Collector shall have the power to make enquiry in respect thereof and may after giving reasonable notice to the parties concerned, set aside any such settlement, lease or transfer as the case may be and dispossess the person claiming under the Act and take possession of such property in the manner provided in clause (h) thereof on such terms as may appear to him fair and equitable and in the event, where such settlement lease or transfer is not set aside, it shall be referred to the Board of Revenue for confirmation, decision of which shall be final. In the instant case, admittedly, the lease in question has been

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executed on 11th January, 1946 which was after 1st January, 1946 as referred to in Section 5(i) of the OEA Act. In fact, no separate issue was framed by the court of 1st instance vis-à-vis legality of the order under Ext.C. The suit instituted at the behest of the plaintiffs is a partition simpliciter. Nevertheless, the learned Sub- Ordinate Judge, Jajpur examined the lease deed, namely, 'hatpatta' dated 11th January, 1946 and concluded that the same was manufactured and created at a later point of time and was not in existence even during the life time of Sovan Khan. The genuineness of the rent receipt under Ext.B series did not inspire confidence of the court as well. Hence, taking into account the above facts and that the Ekpadia only confined to Ac.0.64 decimal and that OEA Authority could not have settled Lot Nos.4 and 5 in favour of defendant Nos.1 to 3 exclusively when such conclusion is based on a manufactured document i.e. Ext.A. In absence of any issue framed in the suit with regard to lease executed in 1946 and evidence received as to the genuineness of execution of 'hatpatta' leading to the order passed by OEA Authority under Ext.C, in the considered view of the Court, it could not have been discarded. In fact, the Court perused the order under Ext.C which indicates that the entire of Ac.0.92 decimal stood recorded in the name of intermediary as 'nijdakhal' land and the predecessor of defendant Nos.1 to 3 had been inducted as a raiyat and since tenant ledger was opened only in respect of Ac.0.64 decimal appertaining to Plot No.673, the rest of Ac. 0.28 decimal from Plot No.440 was included, in respect of which, the tenancy was recognized and settled subject to payment of rent, cess and salami. In fact, the alleged 'hatpatta' dated 11th January, 1946 issued by ex-intermediary was verified by OEA Authority which included Plot No.440 under Holding No.2 measuring Ac.0.28 decimal and hence, it was settled with the defendants predecessor-in-interest. Referring to order under Ext.C,

Abdul Hanan Khan (Dead) By LRs & others Vrs. Dayan Khan (Dead) By LRs & others

the pleading from the side of defendant Nos.1 to 3 appears to be that the 'hatpatta' is dated 11th January, 1946 but Ekpadia was issued confining to Ac.0.64 decimal. It is made to understand that tenancy ledger was opened only in respect of Ac.0.64 decimal leaving out Ac.0.28 decimal which was included and settled under Ext.C. As earlier stated, no issue was framed by the Trial court on the legality of Ext.C. When a lease is created after 1st January, 1946 in view of Section 5(i) of the OEA Act, the same either may be accepted or rejected and if such settlement is not set aside by the OEA authority, it needs confirmation by the Board of Revenue. From the evidence on record, it is not clear and apparent as to if any such confirmation was obtained from Board of Revenue in respect of the alleged lease for which tenancy was settled in favour of defendant Nos.1 to 3 being the successors of late Sovan Khan. No doubt, the parties was in jointness by the time, the alleged lease was created but it has not been included in partition on the ground that the same belongs to late Sovan Khan succeeded by defendant Nos.1 to 3, who are the exclusive tenants in respect thereof. When such a question is raised with regard to legality of Ext.C or settlement of Lot Nos.4 and 5 exclusively in favour of late Sovan Khan and thereafter, succeeded by defendant Nos.1 to 3, it could have been adjudicated upon in the suit with an issue framed. The pleading of the appellants suggest that Ext.C is a product of fraud, inasmuch as, no such lease was ever created in 1946 and the same was manufactured not during the life time of Sovan Khan. In such view of the matter, when the dispute centres around the alleged lease and subsequent settlement which is stoutly denied on the ground that the acquisition in respect of Lot Nos.4 and 5 to be out of joint nucleus, the Court is of the humble view that the issue in prominence is whether the subject matter in dispute belongs to the family and acquired out of joint nucleus. In other words, the

Abdul Hanan Khan (Dead) By LRs & others Vrs. Dayan Khan (Dead) By LRs & others

question on the lease is of no relevance when the suit is for partition with a claim by the appellants that Lot Nos.4 and 5 are the joint interest. A decision on the legality of Ext.C is unlikely to yield any result on partition unless the appellants satisfactorily prove and establish by evidence regarding its acquisition out of the joint nucleus. So to say, it would be a futile exercise to deal with such an issue vis-à-vis Ext.C as the real dispute is by claiming joint interest over Lot Nos.4 and 5. Having said that, the Court considering the evidence on record received from the appellants is not fully satisfied to reach at a definite conclusion that the interest over which the dispute has emerged really belongs to the family. Such a decision is for the reason that the material on record is not so convincing to take a side in favour of the appellants. So, therefore, leaving aside the question on the validity vis-a-vis Ext.C and since the evidence on record is not convincing enough on joint acquisition of Lot Nos.4 and 5 and keeping in view the legal position as discussed in Mohammed Ibrahim (supra) to the effect that the personal law of Muslims does not recognize a system of joint holding as is common amongst Hindus, the Court is not inclined to interfere with the decision of the Lower Appellate Court though for different reasons. In view of the above, the substantial questions of law stand answered accordingly.

10. Hence, it is ordered.

11. In the result, the appeal is hereby dismissed, however, in the circumstances without any order as to costs.

(R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication TUDU Location: OHC,CTC Date: 16-Nov-2023 11:47:54