The High Court dismissed the second appeal seeking to challenge the partition decree. It held there was no substantial question of law because the lower appellate court correctly interpreted evidence regarding partition of plots by metes and bounds.
The appeal stood dismissed as it did not merit admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.20 of 2010
14. 02.08.2016 1. This appeal has been filed challenging the judgment an
d decree assed by the learned 1st Addl. District Judge, Puri in RFA No. 40/27 of 2006/2004 par
tially modifying the judgment and decree passed by the learned Civil Judge, Sr.Divn., Nimapara
in T.S. No. 434 of 2000.
The appellant as the plaintiff had filed the suit for partition arraigning the
present respondent no. 1 as the defendant no. 2 and rest respondents as the other defendants.
The defendant no. 1 who is here the respondent no.1 being aggrieved by the judgment and decre
e as passed by the trial court had preferred the first appeal. The appellate court having modi
fied the judgment and decree impugned before it, now this second appeal under Section 100 of t
he Code of Civil Procedure has been filed by the plaintiff.
2. For the sake of convenience, in order to bring in clarity and avoid confusion, the par
ties hereinafter have been referred to as they have been arraigned in the trial court.
3. The plaintiffs case is that one Jahan Mohanty had two sons namely, Jairam Mohanty and
Hata Mohanty, defendant no.2. The plaintiff is one of the sons of Jairam and defendant nos. 1,
3 and 4 are three other sons of Jairam. The suit land stood recorded in the name of Jahan Moh
anty. It is stated that Jairam during his life time had alienated some land to the plaintiff a
nd defendant no. 1 by registered sale deed dated 26.6.87 for valuable consideration and for le
gal necessity and thereafter the remaining area rested with the defendant no.2. It is further
stated that the plaintiff has been possessing the disputed property openly, peacefully and con
tinuously by constructing his own house over there. The defendant no. 2 being a person of misc
hievous character encroached upon the plaintiffs land and threatened to evict him which attemp
t was foiled being seriously resisted. It is next stated that defendant no. 2 having taken the
advantage of the simplicity of defendant no. 1 has illegally purchased 1/4th share from defe
ndant no. 1 by registered sale deed dated 24.3.2000 where of course no delivery of possession
of the purchased land has been taken. S the plaintiff ultimately filed the suit for partition.
4. The defendants in their written statement besides challenging the maintainability of t
he suit have come out with a case that the land under Khata No. 79 plot No. 480 comprising an
area of Ac.0.13 decimals was the ancestral property being recorded in the name of Jahan Mohant
y and after his death, the same devolved upon his two sons namely, Jairam and Hata. The other
properties are said to be belonging to Madhab Mohanty and Radhu Mohanty as per the record of t
he sabik settlement. Madhab Mohanty is said to have died leaving behind his two sons namely, B
hajananda and Prahallad whereas Radhu Mohantys only legal representative is said to be his son
namely, Budheswar. It is stated that after death of Madhab and Radhu, the property came to b
e succeeded by Bhanjananda, Prahalallad and Budheswar who for their legal necessity, transfer
red the same to the defendant no. 2 as well as Jairam under registered sale deed and as such
those have been recorded under two khatas in their names. It is further stated that the land
under Khata No. 79 stands recorded in the name of Jairam and defendant no. 2. It is the case
of the defendants that the land under Plot No. 480, 481 and 482 adjoin each other and thus rem
aining in a compact area. Due to family dissention, said three plots were partitioned by metes
and bounds between Jairam and defendant no. 2 prior to 20 years and accordingly western half
of those plots i.e. entire plot Nos. 482 and 481 and the western portion measuring Ac.0.01/2 d
ecimals of plot No. 480 comprising an area of Ac.0.12/1/2 decimals were allotted to the share
of defendant no.2 and the rest came to be allotted to Jairam and they were accordingly posse
ssing the same with the knowledge of all concerned including the plaintiff. It is further stat
ed that Jairam while in exclusive possession of the land on the eastern portion measuring Ac.0
.12.1/2 decimals as its owner sold it out to the plaintiff and defendant no. 1 by registered s
ale deed dated 26.6.97 and after the said purchase, the plaintiff and defendant no. 1 also par
titioned the same between them when extreme eastern Ac.0.06.1/2 decimals to the west from the
plot No. 480 was given in the share of the plaintiff. The plaintiff is said to have construct
ed a pucca house over there and the defendant no. 1 on his portion is said to have constructed
two thatched rooms. So it is asserted that there had been a complete partition by metes and b
ounds.
5. The defendant nos. 3 and 4 have got the undisputed land since the time of their father
and they have no claim over the suit land. It is stated that defendant no. 1 for his legal ne
cessity transferred the eastern Ac.0.06.1/2 decimals of land from plot No. 480 to defendant no
. 2 who has acquired valid right, title and interest and is in possession over the same. The
sale deed is said to be with the knowledge of the plaintiff who is said to have no manner of r
ight, title and interest over said eastern Ac.0.06.1/2 decimals of land from out of the land u
nder plot No. 480 and Ac.0.07 decimals of land under plot No. 482, Ac.0.05 decimals of land un
der plot No. 481 and Ac.0.01/2 decimals from extreme west of plot No. 480. It is further aver
red by the defendant no. 2 that he has sold some portion from south-west part of plot No. 482
to Narayan Sahani by registered sale deed. It has finally been said that there being a complet
ed partition by metes and bounds, the suit as laid is not maintainable.
6. The trial court on the above pleadings, framed six issues. Rightly going to first answ
er the crucial issues i.e. issue no. 3 as regards as to if the suit has been duly constituted,
the answer has been rendered in the affirmative. Next going to answer the other two important
issues touching the question of grant of the reliefs as claimed, which are issue nos. 4 and 5
, the answer has been recorded in favour of the plaintiff. The suit having been decreed, the d
efendant who is the respondent no. 1 in this appeal preferred an appeal under Section 96 of th
e Code. The lower appellate court viewing the specific challenge to the judgment and decree by
the trial court as leveled with has not found any reason to disturb the findings on the issue
s as recorded by the trial court save and except to the extent of recording the approval of th
e arrangement pursuant to Ext. 1.
7. Learned counsel for the appellant submits that when the plaintiff claims that there wa
s partition between Jairam and Hata and according to that Jairam sold his share to him and de
fendant no. 1, as also when defendant no. 2 pleads that there was partition by metes and boun
ds between Jairam and Hata which has been so found by the trial court and which is the legiti
mate derivation from the evidence of the witnesses examined on behalf of the plaintiff standin
g undisturbed by the lower appellate court, the view taken by it ignoring all those that there
was no partition between Jairam and Hata is wholly erroneous and as such unsustainable. This
according to him is the substantial question of law which arises in the case so as to be certi
fied for admission of this appeal.
8. In order to address the above, I have carefully read the entire judgment of the lower
appellate court besides the plaint averments. What has to be taken note of is the averment mad
e by the defendant no. 2 at para-15 (b) of his written statement. The averments stand to the e
ffect that the three plots were partitioned by metes and bounds since 20 years between him and
Jairam. This has been taken up for further consideration along with the oral evidence on reco
rd. However, lastly viewing Ext. 1, the sale deed which accordingly reveals that the three plo
ts were partitioned half and half, the lower appellate court having held the finding as regard
s partition in metes and bounds of those three plots, the same can be said be the inevitable c
onclusion and not the outcome of perverse approach and appreciation. More particularly in the
absence of any other documentary evidence as regards partition when land records stand joint,
the lower appellate court having differed with the trial court to that extent, this Court find
s no such justifiable reason to accept the submission of the learned counsel for the appellant
as regards the existence of any substantial question of law as stated in the forgoing paragra
phs.
The appeal thus does not merit admission.
9. Resultantly, the appeal stands dismissed.
D.Dash, J.
AKS
8
3 issues framed by the court
Whether a substantial question of law arises regarding the existence of partition of land by metes and bounds between Jairam and Hata Mohanty.
Whether the finding of the lower appellate court on the issue of partition is liable to be set aside in law.
Whether the appeal against the judgment and decree requiring partition and allotment of shares is maintainable.
2 provisions across 1 enactments
Plaintiff/Appeal
Jairam Mohanty
Hata Mohanty
D.Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court