Orissa High Court
Pramila Dalei & Others vs Madhab Dalei & Others on 1 May, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA: CUTTACK
A.F.R. RSA No.151 of 2020
In the matter of an Appeal under Section-100 of the
Code of Civil Procedure assailing the judgment and decree
passed by the learned 3rd Additional District Judge, Puri in
RFA No.20/64 of 2018/2013 in confirming judgment and
decree passed by the learned Civil Judge (Jr. Division), Puri
in C.S. No.37 of 2011.
.........
Pramila Dalei & Others :::: Appellants
-:: VERSUS ::-
Madhab Dalei & Others :::: Respondents
Advocate(s) who appeared in this case by hybrid
arrangement (virtual/physical) mode.
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For Appellants ... Ms.Suvalaxmi Devi,
Advocate
For Respondents ... Mr. Sukanta Ku. Dalei,
Advocate
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CORAM :
MR. JUSTICE D.DASH
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Date of Hearing: 09.04.2024 :: Date of Judgment:01.05.2024
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D.Dash,J. The Appellants, by filing this Appeal, under Section 100
of the Code of Civil Procedure, 1908 (for short, 'the Code'),
have assailed the judgment and preliminary decree passed by
the learned 3rd Additional District Judge, Puri, in RFA
No.20/64 of 2018/2013 for partition of the property described
in the schedule of the plaint declaring 1/4th share of each of
the Respondents-Plaintiffs and 1/4th share to Jagannath Dalei,
the original Defendant therein (since dead), who is the
predecessor-in-interest of these Appellants.
The suit having been preliminarily decreed by the Trial
Court declaring that each of the Respondents (Plaintiffs) are
entitled 1/4th share over the suit property, said Jagannath
Dalei, the original Defendant being aggrieved by the said
judgment and preliminary decree passed by the Trial Court
had filed the Appeal under section 96 of the Code.
During pendency of that Appeal, said Jagannath Dalei,
the Appellant therein (sole Defendant) having died, the
present Appellants who are the legal representatives pursued
the said Appeal. The Appeal has been dismissed and
thereunder the judgment and preliminary decree passed by
the Trial Court in the suit have been confirmed. Hence, the
present Second Appeal is at the instance of these Appellants
(substituted Defendants).
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 Trial Court.
3. Plaintiffs case is that the suit property is their ancestral
property and they as well as Jagannath Dalei (original
Defendant) have been possessing the same jointly by
inheriting the same from their ancestor. Plaintiffs and the
original Defendant are the four sons of late Das Dalei. In the
Sabik Record of Right of the year 1927, land under Khata
No.46 of Mauza-Kathuaredi was recorded in the name of
Narayan Daalei, Ghana Dalei and Rohini Bewa under Plot
No.210, 211 and 215 measuring Ac.0.13 dec., Ac.0.29 dec. and
Ac.0.02 dec. respectively. Rohini was possessing land
measuring Ac.0.13 dec. under Plot No.210 whereas Narayan
and Ghana were possessing Ac.0.29 dec. pertaining to Plot
No.211 and Ac.0.02 dec. under Plot No.215. Rohini died
issueless and land measuring Ac.0.13 dec. pertaining to Plot
No.210 under Khata No.46 devolved upon Narayan Dalei
and Ghana Dalei. Subsequent thereto, Narayan and Ghana
partitioned those properties relating to Plot No.211, 215 and
210 measuring Ac.0.29 dec., Ac.0.02 dec. and Ac.0.13 dec.
respectively; in total coming to Ac.0.44 dec. in two equal
shares. Ghana possessed the western half whereas the eastern
half was possessed by Narayan. On the death of Narayan, the
sons of Das Dalei, the father of the Plaintiffs and the
Defendant inherited and possessed those properties of
Narayn Dalei. After the death of Das Dalei, the Plaintiffs and
original Defendant inherited the same and remained in
possession. It is further stated that by the time of Settlement
Operation in the said Mauza, Das Dalei and his wife were
dead. The Plaintiffs and Defendants (since dead) were in joint
mess. The original Defendant was in-charge of the joint
undivided property as the Karta of the family and he too was
looking after the Settlement and Consolidation Operation. It
is alleged that by practicing fraud, the original Defendant got
his name recorded in both the Settlement and Consolidation
Record of Right relating to the suit land to the exclusion of
others (Plaintiffs). When the Plaintiffs approached the
original Defendant for partition of the suit property, he
refused. Therefore, the suit has come to be filed.
4. The Defendant in the written statement stated that the
Plaintiffs have never possessed the suit property at any point
of time within a period of twelve years next before the filing
of the suit. On that ground, the suit is attacked as barred by
limitation. It has been further pleaded that the issue as to
right, title and interest over the suit property having already
been decided by the Consolidation Authority, the same is no
more open to challenge in the present suit.
The Defendant submitted that the suit property is
their ancestral property and their father died long prior to the
Hal Settlement Operation leaving the Plaintiffs and the
original Defendants as his heirs and successors. It is next
stated that after the death of their father due to dissention
amongst the members of the family, it become difficult for
them to live in joint mess and estate by jointly possessing the
suit properties along with other properties. So, there was an
amicable partition of all their properties including the suit
properties left by their father and inherited by them in metes
and bounds. As per the said partition, the suit property with
some other properties left by their father were allotted to the
original Defendant and in his share. Since then, he claims to
be in possession of the said allotted property, which includes
the suit property. So, during Hal Settlement Operation and
Consolidation Operation, the Record of Rights relating to the
suit property are said to have been rightly prepared in favour
of the Defendant. It is also stated that in similar way the
properties which were allotted to the share of the Plaintiffs
have been separately recorded in their name in the Hal
Settlement and Consolidation Operation and the Record of
Rights have been issued to them. The Defendants states that
his only residential house stands over the suit property
where he has been residing with his family members.
5. On the above rival pleadings, the Trial Court framed as
many as eleven (11) issues. Rightly taking up Issue No.1,2,3,6
and 7 together for decision as those are interlinked, upon
examination of evidence and their evaluation, the finding has
been returned in favour of the case/claim of the Plaintiffs by
holding that the parties have definite share over the said
property. In other words, the Trial Court rejected the claim of
the original Defendant that the suit property had fallen in his
share in the partition.
Proceeding to answer other issues as to the correctness
of the Settlement and Consolidation record of right relating to
the suit land, the Trial Court on going through the evidence
on record and discussing the provisions of law holding the
field has answered that the Settlement as well as the
Consolidation Authority have not correctly prepared the
Record of Right. In that view of the matter with the admitted
relationship of the parties, each of the Plaintiffs have been
held entitled to 1/4th share over the suit property.
6. As against the judgment and preliminary decree passed
by the Trial Court, the First Appeal being filed; the First
Appellate Court upon reappreciation of evidence
independently at its level and addressing the rival
contentions raised before it, has affirmed all those findings.
Accordingly, the First Appeal has been dismissed confirming
the judgment and preliminary decree passed by the Trial
Court.
7. The Appeal has been admitted to answer the following
substantial question of law:-
"Whether the apparent omission to read the
plaint averments revealing that there was a
partition earlier in respect of the other joint
properties in the nature of 'agriculture land', has
affected the framing of appropriate issues on
which the right decision of the case appears to
depend and thereby placing the burden of proof
on the wrong shoulder, the learned courts below
have erred in deciding the suit, against the
defendant-appellants?"
8. Learned counsel for the Appellants (Defendants)
submitted that the Courts below have completely erred both
on fact and law in holding that the suit properties are liable to
be partitioned. She submitted that in view of the pleadings of
the Plaintiff that there has been a partition in respect of the
other joint family properties in the nature of agricultural
land, the burden of proof ought to have been placed upon the
Plaintiffs to prove that the suit property was not the subject
matter of the previous partition which was a partial one and
by giving out reasons also to show as to why the suit
property was not put to partition. He submitted that the
Courts below here in the case have wrongly placed the
burden of proof upon the Defendant to establish the above
said fact. He, therefore, urged that the substantial question of
law need be answered against the case/claim of the Plaintiffs.
In support of his submission, he placed reliance upon the
following decisions:-
(a) Mst. Kharbuja Kuer Vs. Jangbahadur Rai, AIR 1963
SC 1203;
b) Poona Ram Vs. Moti Ram (D) th. L.Rs. & Others,
AIR 2019 SC 813;
(c) Smriti Debbarma (Dead) through Legal
Representatives Vs. Prabha Ranjan Debbarma & Others,
MANU/SC/0010/2023;
(d) Nira Dei Vs. Sadasiba Mahanta & Others, AIR
1974 Ori 165; and
(e) Kesharbai (D) by L.Rs. & Ors. Vs.Tarabai
Prabhakarrao Nalawade & Ors., MANU/SC/0208/2014.
9. Learned counsel for the Respondents (Plaintiffs)
submitted all in favour of the findings returned by the Trial
Court which have been affirmed by the First Appellate Court.
According to him, the Plaintiffs having pleaded that other
properties had been partitioned and having specifically
pleaded that the suit properties were not the subject matter of
the partition amongst the parties at any point of time, the
Courts below in view of the pleadings in the written
statement that there was a partition and the Defendant has
got the suit land as his share in the said partition, did commit
no wrong in putting the burden of proof upon the shoulder
of the Defendant to establish that in that partition, the suit
property had fallen to his share since it is admitted that the
suit property was the ancestral property of the parties and
they jointly inherited the same. He further submitted that
when the Trial Court as well as the First Appellate Court
after threadbare analysis of evidence, both oral and
documentary on record, have concurrently arrived at a
finding that the suit properties were not partitioned amongst
the parties in metes and bounds and as their surfaces
absolutely no perversity therein, the judgments and
preliminary decrees based on that finding are not liable to be
interfered with in seisin of Second Appeal.
10. Keeping in view the submission made, I have carefully
read the judgments passed by the Courts below. I have also
carefully gone through the decisions cited by the learned
counsel for the Appellants.
11. Admitted factual position stands that the suit property
is the ancestral property of the parties, which they have
inherited. The parties are the sons of late Das Dalei and as
such they are the four brothers. The Plaintiff claimed
partition of the suit property in equal shares amongst
themselves. The plaint averments are that although the
parties have amicably partitioned their agricultural
properties amongst themselves, the suit property being the
homestead property where the parties were residing in
separate portion of the house as per convenience had not
been divided. At this stage, the Plaintiffs have levelled an
allegation that despite the fact that the suit property
continued to be the joint property of all the brothers without
being partitioned in metes and bounds, the Defendant
resorting fraudulent means, has obtained the Hal record of
right and Consolidation record of right in respect of the suit
property in his name exclusively.
At this point, taking a pause, turning the attention to
the response of the Defendant in his written statement to the
above case projected by the Plaintiffs, it would be found that
his pleading is to the effect that after the death of their father
due to bickering it became difficult for them to live in joint
mess and jointly possess the suit property and other
undisputed family properties left by their father. So, there
was an amicable partition of the suit property and other
undisputed family properties left by their father in metes and
bounds and as per that partition, the suit property with other
undisputed property left by their father had been allotted to
him and since then, he is continuing to be possess the same.
This is said to be the basis for exclusive recording of the suit
land in his name in the Record of Right prepared during the
Settlement and Consolidation Operation.
The main submission of the learned counsel for the
Defendant was that the Trial Court as well as the First
Appellate Court has wrongly placed the burden the proof
upon the original Defendant. It was argued that since the
Plaintiff have taken the stand of partial partition and that
gives rise a presumption as to the total and complete
partition of the properties available in the hands of the
parties at that point of time, as the Plaintiffs have failed to
discharge the burden of proof that in the said partial partition
concerning agricultural property and other undisputed
properties, this suit property was not the subject matter and
had not been brought to the hotchpot for some good reasons
or others for which the suit ought to have been dismissed
even without taking into account that the Defendant have
failed to prove the fact which he has pleaded in the written
statement.
12. Position of law is no more res integra that in a suit or
legal proceeding when the material factual position required
to be decided in view of the rival case set up by the parties,
the Court at first has to decide that on whom the burden of
proof lies and then to proceed with the exercise of
examination and evaluation of the evidence of that party on
whom the burden of proof rests and find out as to how far he
has been able to discharge the same and then to conclude as
to whether with such evidence it being so held as acceptable
if the onus has shifted upon the shoulder of the adversary. It
then examining the evidence of other side and accordingly
take a decision as to the proof of either of the rival case
projected by the respective parties.
13. The first consideration in that celebrated case of
Kharbuja Kuer (supra) was whether the High Court was right
in reversing the concurrent finding of fact that the two
widows had put their thump marks without understanding
the true impact of the document, in saying that said findings
were vitiated on the erroneous view of the law in the matter
of burden of proof. That was a case where the document had
been purported to have been executed by two widows. The
Trial Court as well as the First Appellate Court had
concurrently found that the two widows put their thumb
marks without understanding the true import of the
document. Said concurrent finding was set aside by the High
Court on the ground that the Courts below have so arrived
on an erroneous view of law in the matter of burden of proof.
The said judgment of the High Court was held by the
Hon'ble Apex Court to be consisting of the propositions
appearing to be contradictory. The view taken by the High
Court that it was the duty of the Plaintiffs to prove that fraud
was committed and as that had not been established, the
question whether the document was read over and explained
to the Plaintiffs did not arise and was wholly wrong. The
reason assigned by the Apex Court being that in cases of
Indian Paradanashin lady, they have been given special
protections in view of the social conditions of time and they
are presumed to have an imperfect knowledge of the world,
and, by the purdah system, they are practically excluded
from social interaction and communication with the outside
world.
In that connection, the observation of Lord Summer
made in case of Farid-Ud-Nisa Vs. Mukhtar Ahmed, (1925)
L.R. 52, Ind. Ap, 342, which had traced the origin and
customs and stated the principle on which the presumption is
based had been given due regard to. In the ultimatum, the
Hon'ble Apex Court has held that the burden of proof in that
case was upon the person, who seeks to sustain the document
executed by Paradanashin ladies in proving that they
executed it with a true understanding mind and the proof of
the fact that it has been explained to her is not the only mode
of discharging the said burden. But the fact that they
voluntary executed the document or not would be
ascertained from other evidence and circumstances.
14. The submission of the learned counsel for the Appellant
thus appears to be having the force that the burden of proof
in a particular case when wrongly placed on a party that
becomes an error of law and it vitiates the entire exercise of
appreciation of evidence right from the beginning till the end
which becomes futile and, therefore, the conclusion arrived at
cannot be sustained.
In that light the present case is thus required to be
examined as to whether the Trial Court as well as the First
Appellate Court ought to have placed the burden of proof
that the suit property had not been partitioned in the
previous partition lies on the Plaintiffs in view of the
presumption that once a partition was made, it would be
presumed to have been made for all the properties of the
parties.
15. Averting to the case, at hand, at the risk of repetition, it
be stated that as against the case of the Plaintiff that there
being partition in relation to other property, the suit property
has not been partitioned amongst the parties, the original
Defendant has projected the case that in that very partition,
this suit property was also the subject matter and that had
fallen to his share and, therefore, it has been rightly recorded
in his name in the settlement and consolidation operation.
The parties are not at dispute that they all had succeeded to
the suit property as well as other property after the death of
their father, having definite interest therein. Admittedly,
there is no document relating to partition. The Plaintiffs as
well as the original Defendant accept that there was a
partition of the properties, which they inherited, amongst
themselves. The controversy centers round the fact as to
whether in that partition, the suit property had fallen to the
share of original Defendant and as such he is the exclusive
owner of the same, wherein the Plaintiffs have no right, tile
and interest so as to be entitled to any share over the same.
Thus, here it is not at all a case where the Plaintiffs pleading
partial partition merely claims the share over the suit
property so that the presumption as to complete partition of
all the properties between the parties would stand against
them requiring them to dispel in order to be entitled to the
relief over that particular item of property. But here the
original Defendant has been very categorical in stating that
the suit property was very much the subject matter of that
partition wherein the suit property came to be allotted to
him. In that peculiarity of the pleading of the Defendant, the
burden of proof of said fact would lie upon the original
Defendant and only in case he has discharged the said
burden of proof and the Plaintiffs then are found to have
failed in satisfactory repelling the same, the plaintiffs
entitlement over the suit property would stand denied. In
that view of the matter, the ratio of the decisions in case of
Nira Dei (supra) and Kesharbai (D) by LRs and Others
(supra) would not come to the aid of the Defendant.
The Trial Court as well as the First Appellate Court,
therefore, in my considered view have rightly placed the
burden of proof upon the original Defendant to show
through clear, cogent and acceptable evidence that the suit
property in that partition which admittedly had taken place
between the parties had been allotted in his share and that
has been rightly taken as basis of preparation of the record of
right in relation to that land in the settlement and
consolidation operation.
16. Having said so, next coming to examine as to whether
the burden of proof of the above fact how far has been
discharged by the original Defendant, it is first of all found
that the original Defendant who was a party to that partition
being alive during the suit had withheld himself from the
witness box. As his substitute, his two sons have been
examined as D.W.1 and D.W.2. The D.W.1 states to have got
the written statement filed by the original Defendant
prepared as per his instruction. In the written statement, it
having been pleaded that the suit property is the ancestral
property; during Trial, it has been given a go-bye in asserting
that the same is the self-acquired property of the original
Defendant which is further strenuously asserted by D.W.1
that the suit property is the self-acquired property of his
father (original Defendant) in again stating that his father
(original Defendant) had not got the suit land on amicable
partition.
The other son of the original Defendant examined as
D.W.2 having first expressed his ignorance as to how his
father got the property in suit has however again stated that
he got it in partition and in the absence of other evidence as
to long and continuous dealing with the suit property by the
original Defendant wholly to the exclusion and deprivation
of the Plaintiffs when the record rights published in the
Settlement and Consolidation Operation are said to be based
upon the allotment of suit property in that partition in favour
of the original Defendant, this Court finds that the Trial
Court and the Frist Appellate Court are absolutely right in
holding that the burden of proof that the suit property had
been allotted to the original Defendant in the partition and
had fallen in his share in the partition where all the
properties of the parties had been amicably divided has not
been discharged.
The substantial question of law accordingly receives its
answer against the case/claim of the Defendants which in
turn leads to confirm judgments and preliminary decrees
passed by the Trial Court as well as the First Appellate Court.
17. In the result the Appeal stands dismissed. There shall,
however, be no order to costs.
(D. Dash),
Judge.
Signature
HimansuNot Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 08-May-2024 19:42:56
