Partly allowed

Jamshedpur Cooperative House v. Smt.Sarala Mahatani And Ors.

Jharkhand HC7 Nov 2019FA/466/2006

Case brief

AI extract

What is this about?

In two cut-related first appeals, the High Court held that while the lower court correctly found the plaintiff entitled to a 1/7th share in undivided properties, the operative order failed to decree partition. The High Court modified the lower court's judgment to declare the sale deed beyond the defendants' share invalid and ordered partition.

What did the court decide?

Judgment and decree of lower court modified to grant partition to the extent of the plaintiff's 1/7th share.

Jamshedpur Cooperative House Vs Smt.Sarala Mahatani And Ors. — Partition | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 466 of 2006

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The Jamshedpur Co-operative House Building Society Ltd. Jamshedpur through its Vice President Sri D.K. Dutta Roy, son of Late H.K. Dutta Roy, working as President having its registered office at Rajendra Nagar, Sakhchi, Jamshedpur … Appellant

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-Versus-

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Smt. Sarala Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Keshab Chandra Mahato, resident of village Luabassa, P.S. Govindpur, District- Singhbhum East

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2(a).Niranjan Mahto, son of Late Hari Pada Mahto

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2(b).Basudeo Mahto, son of Late Hari Pada Mahto Both resident of vill.- Ghorabandha, P.O. & P.S. Govindpur, DistrictSinghbhum East

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2(c).Joytasna Mahto, wife of Rasraj Mahto, resident of vill.Khirbani, Tola Murusdin, P.O. Lubassa, P.S. Govindpur, Dist. Singhbhum East

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2(d). Buki Mahto, w/o Raju Mahto, Pipla, P.S. Mango, District- Singhbhum East

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2(e).Lalita Mahto, w/o Himanshu Mahto, vill. Taleg Koya, P.O. & P.S. Kowali, District- Singhbhum East

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2(f). Srimati @ Peto Mahto, w/o Maheshwar Mahto, Vill.- Banjora, P.O. Asanbani, P.S. Jadugora, Dist. East Singhbhum

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2(g). Batasi Mahto, w/o Shesh Dhar Mahto, vill. Ichagarh, P.S. Gamharia, Dist. Saraikella- Kharsawan

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3(a). Gori Mahto, w/o Late Giri Gopal Mahto

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3(b). Hemant Mahto, w/o Late Giri Gopal Mahto, vill.- Ghorabandha, P.O. & P.S. Govindpur, Dist.- Singhbhum East

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3(c) Kalpana Mahto, w/o Kalipada Mahto, vill.- Ghorabandha, P.O. & P.S. Govindpur, Dist.- Singhbhum East

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3(d) Madhuri Mahto, w/o Bidhan Mahto, vill. Shalbani P.O. Nirachumi, P.S. Mango, District- Singhbhum East

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3(e) Chingri Mahto@ Aghari Mahto, w/o Shri Gori Shankar Mahto, vill. Haludbani, P.O. Kakra, P.S. & Dist. Saraikella Kharsawan

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Sri Jagadish Mahato, Son of Mahendra Nath Mahato, vill.- Ghorabandha, P.O. & P.S. Govindpur, Dist.- Singhbhum East

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Smt. Biroja Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Nibaran Chandra Mahato, resident of village Pipla P.O. & P.S. Mango Muffassil, Dist.- Singhbhum East

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Smt. Thakur @ Durgeshwari Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Dhananjay Mahato, vill.- Kudlung, P.O. & P.S. Mango Muffasil, Dist.- Singhbhum East

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Smt. Sandhya Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Ram Krishna Mahato, vill. Roshonia, P.O. & P.S. Chandil, Dist. Singhbhum West … Respondents

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With

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F.A. No. 458 of 2006

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Smt. Sarala Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Keshab Chandra Mahato, resident of village Luabassa, P.S. Govindpur, DistrictSinghbhum East … Appellant

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-Versus-

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Sri Hari Pada Mahato

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Sri Giri Gopal Mahato

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Sri Jagadish Mahato All sons of Late Mahendra Nath Mahato, residents of vill.- Ghorabandha, P.O. & P.S. Govindpur, Dist.- Singhbhum East

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Smt. Biroja Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Nibaran Chandra Mahato, resident of village Pipla P.O. & P.S. Mango Muffassil, Dist.- Singhbhum East

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Smt. Thakur @ Durgeshwari Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Dhananjay Mahato, vill.- Kudlung, P.O. & P.S. Mango Muffasil, Dist.- Singhbhum East

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Smt. Sandhya Mahatani, daughter of Late Mahendra Nath Mahato, wife of Sri Ram Krishna Mahato, vill. Roshonia, P.O. & P.S. Chandil, Dist. Singhbhum West

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The Jamshedpur Co-operative House Building Society Ltd. Jamshedpur represented by its President Sri Prabhat Sinha, son of Late G.P. Sinha, resident of 11-D, Road Northern Town, P.S. Bistupur in town Jamshedpur, having its registered office at Rajendra Nagar, Sakhchi, Jamshedpur

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… Respondents

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CORAM: HON’BLE MR. J	USTICE SANJAY KUMAR DWIVEDI -----
For the Appellant	: Mr. R.N. Sahay, Sr. Advocate
(F.A. 466 of 2006)	Mr. Mrinal Kanti Roy, Advocate
For the Respondents	: Mr. Lalit Kumar Lal, Advocate
(F.A. 466 of 2006)	Mr. Bhaiya Vishwajeet Kumar, Advocate
For the Appellant	: Mr. Lalit Kumar Lal, Advocate
(F.A. 458 of 2006)
For Respondent No.7	: Mr. R.N. Sahay, Sr. Advocate
(F.A. 458 of 2006)	Mr. Mrinal Kanti Roy, Advocate
For Respondent Nos. 1 to 6	: Mr. P.A.S. Pati, Advocate (in F.A.-458/06)
For Respondent Nos. 1 & 2	: Mr. Sachin Mahato, Advocate (in F.A.-458/06)
For Respondent Nos. 2 & 3	: Mr. Sachin Mahato, Advocate (in F.A.-466/06)

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17/07.11.2019. Heard Mr. R.N. Sahay, learned Senior counsel assisted by Mr. Mrinal Kanti Roy, learned counsel appearing in F.A. No. 466 of 2006 and Mr. Lalit Kumar Lal, learned counsel appearing in F.A. No. 458 of 2006. Both these First Appeals have been filed against the common judgment that is why they have been heard together.

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Both these First Appeals have been filed against the judgment and decree dated 05.04.2006 and 17.04.2006 respectively passed by the Subordinate Judge-V at Jamshedpur in Title (Partition) Suit No. 50 of 1992, whereby, the suit was partly decreed.

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The plaintiff instituted the suit for a preliminary decree for declaration and partition of his 1/7^th share in the Schedule- A and B property besides for declaration that the sale deed No. 2517 dated 01.07.1992 is void ab initio, and illegal and for final decree and also the khas possession of his share in schedule property and for the permanent injunction restraining defendant no.7 not to interfere with the schedule property and for the mesne profit.

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The appellants/plaintiff and respondents/defendant nos. 1 to 6 are Hindus and governed by the Hindu Law. The common ancestor of the plaintiff and defendant nos. 1 to 6 was late Jaimani Mahatani being the mother. Jaimani Mahatani being only legal heir of her mother Chandani Mahatani and after the death of Chandani Mahatani, the Schedule- A and B properties were inherited and mutated in the name of Jaimani Mahatani. Jaimani Mahatani died leaving behind the plaintiff and defendant nos. 1 to 6 as her only legal heirs and successors. The schedule properties are undivided joint family properties and the plaintiff and defendant nos. 1 to 6 and have not yet been partitioned by metes and bounds and the parties are in joint possession of all the schedule property. There are some other properties stand recorded in the name of Mahendra Nath Mahato (father of plaintiff and defendant nos. 1 to 6) and the same have also not yet been partitioned by metes and bounds among themselves. In the plaint, it was pleaded that so far the properties of Mahendra Nath Mahato are concerned, the plaintiff reserves her right to claim for the reliefs of 1/7^th share in the properties left by her father Mahendra Nath Mahato. The plaintiff requested for amicable partition of the schedule properties, but that was refused by defendant nos. 1 to 6 some times in the month of May 1992. When the plaintiff came to know that Schedule-B property has been sold out in favour of defendant no.7 without her knowledge and consent by

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registered sale deed no. 2517 dated 01.07.1992 for the valuable consideration of Rs.33,19,645/-, then the plaintiff immediately requested to the Circle Officer at Jamshedpur in writing not to mutate the Schedule-B property in the name of defendant no.7 and other parties were also informed, but no action was taken in this respect. Defendant nos. 1 to 3 are also trying to alienate the remaining joint properties with an intent to deprive the plaintiff of her 1/7^th share in the suit property and, therefore, the suit was instituted. It was also pleaded that Schedule- A and B of the plaint are joint properties of the plaintiff and defendant nos. 1 to 6 and defendant nos. 1 to 3 have no right, title and interest to sell away the property without knowledge and consent of the plaintiff and other defendants by registered sale deed dated 01.07.1992 and thereby defendant no. 7 has not acquired any perfect right, title and interest in the suit property. Defendant no.7 on the strength of the registered sale deed dated 01.07.1992 trying to construct the house and other structure over the Schedule-B property with an intent to deprive the plaintiff of her valuable right, title and interest and joint possession over the suit property, to the extent of her share and, accordingly, it was prayed for a declaration that the sale deed no. 2517 dated 01.07.1992 is a joint property and the sale deed is void ab initio and illegal and not binding on the plaintiff and the properties included in the sale deed is subjected to be partitioned. The cause of action was said to be arose on and from the month of May 1992 when defendant nos. 1, 2 and 3 refused to make amicable partition of the property described in Schedule- A and B of the plaint and, therefore, the suit was instituted.

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All the defendants contested the suit by way of filing their written statements separately. Defendant nos. 4, 5 and 6 filed their separate written statement and defendant nos. 1, 2 and 3 filed their separate written statement

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and defendant no.7 filed its separate written statement. On perusal of the written statements, it transpires that the written statement filed by defendant nos. 4 to 6 is virtual adoption of the written statement filed by defendant nos. 1 to 3.

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The defendants raised several grounds for non-maintainability of the suit as such the suit is not maintainable because the same is barred by limitation, waiver, estoppel and acquiescence and principle of Specific Relief Act and also Transfer of Property Act. The suit is grossly under valued and further the plaintiff has instituted the suit in form of declaration of title and recovery of possession in garb of a simple suit of partition and the plaintiff is not in possession of any portion of the suit land. All the properties claimed in the partition suit has not been properly described and the suit is fit to be dismissed. However, it was admitted that Jaimani Mahatani was the common ancestor of defendant nos. 1 to 6 and the schedule property was inherited by Jaimani Mahatani being legal heir of her mother Chandani Mahatani. After the death of Jaimani Mahatani, defendant nos. 1 to 6 with the plaintiff inherited the suit property. Mahendra Nath Mahato made huge expenses with sufficient dowry, ornaments and cash in performing the marriage of his four daughters. The plaintiff and defendant nos. 4 to 6 are in rich and well to do family. Defendant no.4 married in 1944, plaintiff married in 1946, defendant no.5 married in 1958 and defendant no.6 married in 1960 and since then they are living happily with sufficient source with her in-laws. Jaimani Mahatani died in the month of June 1977 at Village- Ghorabandha. The plaintiff and all the daughters defendant nos. 4, 5 and 6 attended the Shradh ceremony with their relations and respectable persons. After the completion of Shradh ceremony, the plaintiff and defendant nos. 1 to 6 with Mahendra Nath Mahato and

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respectable members with discussion, came to the conclusion that all the daughters including plaintiff, in presence of their husbands agreed with, that they would not claim over the suit property because they get sufficient donation during their marriage and a cordial relationship would be maintained. In this background, oral family settlement was made out and was decided that defendant nos. 1 to 3 would continue in exclusive possession and enjoyment of all the properties left by their mother and since then defendant nos. 1 to 3 are openly and adversely against the all and without any claim or interference by the plaintiff and other sisters. On the death of their father Mahendra Nath Mahato in 1986, all the sisters including the plaintiff attended the Shradh ceremony and in presence of their husbands, respectable persons confirmed the oral family settlement arrived in 1977 and accordingly defendant nos. 1 to 3 are in exclusive possession and enjoyment of the properties. It was denied that the schedule properties or undivided joint family property are of the plaintiff and defendant nos. 1 to 6, rather the suit property is in possession only to defendant nos. 1 to 3. The request made by the plaintiff with respect to schedule property was denied. Defendant no.7 after enquiry about the title and possession of the schedule property with defendant nos. 1 to 3 approached for purchasing the suit property for residential accommodation for its member for valuable consideration of Rs.33,19,645/-. Defendant no.7 was put into possession after a deed of sale executed in favour of defendant no.7. It was denied that the sale deed dated 01.07.1992 is not having any force and validity. The plaintiff's 1/7^th share in the schedule property was also denied. Lastly, it was contended that the claims and allegations of the plaintiff in the suit are false and incorrect and as such the same is fit to be dismissed with exemplary cost.

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On the basis of above pleadings of the plaintiff and the defendants, the

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trial court formulated following issues:

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“1. Is the suit as framed and filed maintainable?

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Has the plaintiff any cause of action for this suit against the defendants?

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Is there any unity of title and continuity of possession of the plaintiff and defendant Nos. 1 to 6 over the suit land?

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Is the plaintiff entitled for a decree for partition of the suit land? If so, what will be the share of the plaintiff in the suit property?

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Is the sale deed No. 2517 dated 01.07.1992 executed by the defendant Nos. 1, 2 and 3 in favour of the defendant No. 7 void, illegal and not binding upon the plaintiff?

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Is the plaintiff entitled to a decree for permanent injunction restraining the defendant No.7 from interfering with possession of the plaintiff over the schedule 'B' land?

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Is the suit bad for non-joinder of all the properties to be partitioned amongst the plaintiff and defendants No. 1 to 6?

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To what relief or reliefs the plaintiff is entitled?”

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The plaintiff examined four witnesses and the documents filed by the plaintiff were marked as Exts. 1 to 4. Ext.-4 is the certified copy of the sale deed no. 2517 dated 18.05.1998. The defendants examined 9 witnesses and the documents filed by the defendants were marked as exhibits. Exts.-A series and B series are the rent receipt and certificate of non-encumbrance issued by the District Registrar, Chaibasa and Jamshedpur respectively. While deciding issue no.3 with regard to continuity of possession of the plaintiff and defendant nos. 1 to 6 over the suit land, the trial court came to the finding that there is unity of title and continuity of possession of the plaintiff and defendant nos 1 to 6 over the suit land. While deciding issue no.4 with regard to share of the plaintiff in the suit land, the trial court came to the finding that the plaintiff is entitled for 1/7^th share in the suit property. While deciding issue no.5 with regard to the fact that sale deed dated 01.07.1992 executed by defendant nos. 1, 2 and 3 in favour of defendant no.7 is void, illegal and not binding upon the plaintiff or not, the trial court came to the finding that alienation beyond their shares could not be sustained as valid transfer and accordingly sale deed no.

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2517 dated 01.07.1992 executed by defendant nos. 1 to 3 in favour of defendant no.7 is not valid beyond the extent to the share of plaintiff i.e. 1/7^th share and, therefore, that was decided in favour of the plaintiff. While deciding issue no.7 with regard to the fact that the suit is bad for non-joinder of all the properties to be partitioned among the plaintiff and defendant nos. 1 to 6, the trial court came to the conclusion that a suit cannot lie for a partition of a portion of the family property, have been recognized when different portion of the family property are situated in different jurisdiction and separate suits for separate portions have sometimes being allowed.

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Mr. Lalit Kumar Lal, learned counsel appearing for the appellant in F.A. No. 458 of 2006 submits that the issues which have been framed by the court below was decided in favour of the plaintiff, but in the operative part of the order, there is no direction with regard to partition of the suit property, which means that the prayer made in the suit for partition was dismissed. He further argues that defendant nos. 4 to 6 are daughters and under Section 6 of the Hindu Succession Act, which has been amended in the year 2005, will come into force as the suit was instituted in the year 1992. By way of referring Order XX Rules 4, 5 and 6 of C.P.C., he argues that the operative part of the judgment is invalid in view of provisions of Order XX. He further argues that the statements made in paragraph 23 of the plaint has been admitted by the defendants in paragraph 12 of their written statement. He further argues that it is well settled proposition of law that in a joint property unless the partition is made by metes and bounds, it is presumed that all the parties are in joint possession of the properties. To substantiate his argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of P. Lakshmi Reddy v. L. Lakshmi Reddy , reported in AIR 1957 SC 314 .

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Paragraph 4 of the said judgment is quoted herein below:

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“4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the nonpossessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. (See Cores v. Appuhamy). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal quotes, apparently with approval, a passage from Culley v. Deod Taylerson which indicates that such a situation may well lead to an inference of ouster “if other circumstances concur”. (See also Govindrao v. Rajabai). It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”

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He further argues that the trial court has rightly come to the conclusion

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that Schedule-A property is the self acquired property and there was no need of inclusion of other property of Mahendra Nath Mahato, which was his ancestral copartioner property. To substantiate this argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Pramod Kumar and another v. Zalak Singh and others , reported in (2019) 6 SCC 621 .

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Paragraphs 30 and 31 of the said judgment are quoted herein below:

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“ 30. Thus, in respect of omission to include a part of the claim or relinquishing a part of the claim flowing from a cause of action, the result is that the plaintiff is totally barred from instituting a suit later in respect of the claim so omitted or relinquished. However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from the court, then a second suit, for a different relief than one claimed in the earlier suit, can be prayed for. There are three expressions which are found in Order 2 Rule 2. Firstly, there is reference to the word “cause of action”, secondly the word “claim is alluded to” and finally reference is made to “relief”.

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31. The defence, which is set up by the defendants, would be irrelevant to determine what cause of action means. The reliefs, which are sought by the plaintiffs, will not be determinative of what constitutes cause of action. Cause of action, as explained by the Privy Council in Mohd. Khalil Khan case, means the media through which the plaintiff seeks to persuade the court to grant him relief. It could, therefore, be said to be the factual and legal basis or premise upon which the court is invited by the plaintiff to decide the case in his favour. It is also clear that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter.”

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On the basis of above judgments, Mr. Lal submits that the trial court erred in not passing the decree of partition when it came to the finding that the plaintiff is entitled for 1/7^th share in the suit property.

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Per contra, Mr. R.N. Sahay, learned Senior counsel appearing for the defendant no.7/appellant in F.A. No. 466 of 2006 submits that defendant no.7 is a Co-operative Society and the land in question was purchased through sale deed No. 2517 dated 01.07.1992 and, thereafter, the land has been distributed among the member of the Co-operative Society. Defendant no.7 is a bona fide purchaser and there is no illegality in the execution of the sale deed. He further submits that Co-operative Society had purchased the land having an area of 1.57 acres. He also submits that the vendors of defendant no.7 are having more land than 1/7^th share and the plaintiff, as claimed by her, can be accommodated by defendant nos. 1, 2 and 3.

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On the basis of the arguments made by learned counsel for the parties, this Court finds that the only issue in this case is to decide whether the trial

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court has passed operative part of the order correctly or not?

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Having heard learned counsel for the parties, this Court finds that while deciding issue no.3, the trial court rightly came to the finding that there is unity of title and continuity of possession of the plaintiff and defendant nos. 1 to 6 over the suit land. While deciding issue no.4 which is based on the discussions made on the evidence of the plaintiff and defendants and inheritance of the properties by the plaintiff and the defendants have been referred by both the sides in their evidence, the trial court came to the finding that the suit property is not partitioned as yet and the plaintiff being joint owner of the suit property has right to partition to the extent of her share and the plaintiff is entitled for 1/7^th share in the suit property. This Court has perused the evidence adduced by the parties and finds that the evidence has been rightly discussed by the court below. While deciding issue no. 5 with regard to sale deed no. 2517 dated 01.07.1992, the trial court has considered the evidence of defendant nos. 1 to 6 and came to the finding that relinquishment does not empower the other shareholder any right, title and interest and any departure from the shares of the joint family property may be through any registered instrument and further came to the finding that alienation of the Schedule-B property in favour of defendant no.7 by defendant nos. 1 to 3 is admittedly beyond their right, title and interest and also beyond the extent of their shares and also came to the finding that their shares could not be sustained as valid transfer. Thus, this Court finds that there is no illegality in the judgment of the trial court. This Court further finds that while deciding the above issues in favour of the plaintiff, operative part of the order is not sustainable in view of Order XX Rules 4, 5 and 6 of C.P.C. Thus, this Court finds that there is no order with regard to partition of the suit property. However, it was ordered by the trial

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court that the plaintiff is entitled for 1/7^th share of the suit property and without consent of the plaintiff, it was executed, which is invalid. Thus, there is illegality in the operative part of the order, which needs to be modified. Accordingly, this Court finds that the plaintiff is entitled for 1/7^th share in the suit property and the suit property needs to be partitioned among the family members to the extent of 1/7^th share. Thus, the judgment dated 05.04.2006 and decree dated 17.04.2006 passed by the trial court are modified to the above extent.

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At this stage, Mr. R.N. Sahay, learned Senior counsel appearing for the defendant no.7/appellant in F.A. No. 466 of 2006 that Schedule-B property may be adjusted in Schedule-A property with regard to share of the plaintiff.

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In view of the above submission, in the interest of justice this Court expects that the plaintiff will consider the offer of defendant no. 7 to avoid multiplicity of the litigation.

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In light of the above modification, F.A. No. 458 of 2006 stands allowed and disposed of.

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Accordingly, F.A. No. 466 of 2006 also stands disposed of.

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Let the lower court records be sent back to the court below with a copy of this judgment.

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(Sanjay Kumar Dwivedi, J.)

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Ajay

Jamshedpur Cooperative House v. Smt.Sarala Mahatani And Ors.

Case brief

What is this about?

What did the court decide?

Jamshedpur Cooperative House v. Smt.Sarala Mahatani And Ors.

Case brief

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What did the court decide?

What the court decided

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