Allowed

Guddu v. Saimani

Orissa HC5 Aug 2016SA/302/1998

Case brief

AI extract

What is this about?

The Orissa High Court held a suit for partial partition maintainable only if all joint properties are included. The court dismissed the appellant's suit for partition of one village, observing that properties of two other villages were excluded and belonged to a different branch, thus allowing suppression and defeating equity. The appeal was allowed.

What did the court decide?

The judgment and preliminary decree of the lower appellate court set aside; the suit for partition is dismissed; parties to bear their respective costs.

Guddu Vs Saimani — Partition | Orissa HC (2016)

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HIGH COURT OF ORISSA, CUTTACK

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SECOND APPEAL No. 302 OF 1998

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From the judgment and decree dated 16.07.1998 and 29.07.1998 respectively passed by the learned Civil Judge, (Senior Division) Karanjia in T.A. No. 05 of 1985.

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Guddu @ Purushottam Mohanta and others	……… Appellants
	Versus.
Smt. Saimani Mohantiani (dead) her L.Rs. Basanti Mohanta @ Ambika Mo & others	hanta ……… Respondents
For Appellants :	M/s.Y.S.N.Murty,P.Misra, C.A.Rao, S.K.Behera, S.K.Mohapatra,advocates..
For Respondents :	M/s.A.K.Mishra, B.B.Acharya, J.Senapati, D.K.Panda, P.R.J.Dash,C.Mohanty, G.Sinha, S.K.Mohapatra-1, J.Sengupta, D.K.Panda, G.Sinha, A.Mishra,S.Mishra, Ramakanta Mohanty, D.Mohanty, S.Mohanty, D.Bhardwaj, B.Prusty, P.Jena, A.Mohanty, S.Mohanty, S.N.Biswal, advocates. .

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PRESENT :

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THE HON’BLE MR. JUSTICE D.DASH

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------------------------------------------------------------------------------------------------------------ Date of hearing : 03.05.2016 : Date of judgment: 05.08.2016 _________________________________________________________________

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This appeal has been filed against the judgment and decree

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passed by the learned Civil Judge, (Senior Division) Karanjia in T.A. No. 05 of 1985.

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The respondent no.1 in this appeal as the plaintiff had filed the suit for partition of the properties described in schedule of the plaint situated at village Surabali. The suit i.e. T.S. No. 11 of 1982 was dismissed by the learned Munsif, Karanjia. So, the unsuccessful plaintiff carried an appeal under section 96 of the Code of Civil Procedure.

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The lower appellate court dismissed the appeal refusing to interfere with the order of dismissal of the suit as passed by the trial court. So, the plaintiff approached this Court in Second Appeal No. 128 of 1986. It was disposed of on 07.01.1997. The matter was remanded to the lower appellate court for fresh disposal in accordance with law with certain observations which would be placed later.

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The lower appellate court now after remand as aforesaid has allowed the appeal in decreeing the suit. Therefore this time, the unsuccessful defendants are before this Court in the second appeal as provided under section 100 of the Code. The original plaintiff having died, her legal representatives are now on record.

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For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below.

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Plaintiff’s case is that their common ancestor Nata @ Nutunu Mohanta had two wives namely, Lata and Nirasi. Through Lata, he had

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two daughters namely, Damuni and Nali. Nutunu had one daughter through his second wife Nirasi namely, Badakhira who had died during the life time of Nirasi leaving no issue. Further case of the plaintiff is that after the death of Nirasi, the three daughters, i.e. the plaintiff, Nali and Damuni survived her. The defendants are the heirs of Nali and Damuni who died few years after the death of Nirasi. It is stated that the plaintiff had requested the defendants to partition the suit land during the current settlement operation. Although they had agreed, yet finally they did not come forward. Later plaintiff when could know to her utter surprise that the suit land had unscrupulously been mutated in the name of Damuni and Nali in Mutation Case No. 382 of 1954-55 and the defendants have taken all the steps to record the entire land in their favour ignoring the plaintiff’s 1/3^rd share, she ultimately filed the suit.

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The defendants filed their joint written statement have stated that the disputed land is in village Sarubali. Nutunu Mohanta had also the lands in village Sarubhadi and Ghodaghaguri. It is stated that Nutunu had effected a partition between the children through his two wives. Accordingly, the lands in village Sarubali had fallen in the share of the children of Lata and the lands in village Sarubadhi and Ghodaghaguri had fallen to the share of the children of Nirasi. So after the death of Nirasi, lands of two villages so allotted have been sold by the plaintiff and the sons of Rengtu who is said to be the foster son Nirasi. It is the further case of the defendants that in the mutation proceeding way back in the

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year 1954-55, the land in village Sarubali were recorded in the name of Damuni and Nali and they were in separate possession and enjoyment all throughout. The maintainability of the suit has been challenged in view of the non-inclusion of all the properties of three villages. Also a plea of acquisition of title over the suit land by adverse possession has been taken by the defendants that they have so perfected the title over the land of said village having remained in possession for long length of time ousting the plaintiff and all others denying their rights, if any, and having enjoyed the properties as its exclusive owners exercising all such rights thereon.

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The trial court faced with the rival pleadings framed nine issues. On analysis of evidence in the light of the rival pleadings, conclusions of the trial court are the followings:-

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i) the suit lands were in possession of Damuni and Nali from the year 1954 and that during their life time they were paying rent;

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ii) the plaintiff has also proved to have sold the lands in village Sarabhadi and Ghodaghoguri along with her brother’s son;

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iii) it is proved that neither the plaintiff had raised any objection when Damuni and Nali sold a portion of suit village lands to Ghasi Mohanta and Debakilal nor Damuni and Nali, raised any objection when the plaintiff sold the

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lands in village Sarabhadi and Ghodaghoguri to Chaitanya Mahanta;

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iv) the oral partition between Nali, Damuni and Nirasi disbelieved;

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v) the suit lands have been mutated in the names of the mother and aunt of the defendants and they paid the rent for the suit lands, which is also admitted by the plaintiff; vi) presumption can be drawn that the mother and aunt defendants were in forcible possession of the suit lands after they were mutated in their favour in the year 1954;

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vii) the plaintiff was never in joint possession of the suit lands with the mother and aunt of the defendants and that the defendants’ mother and aunt were enjoying the suit land to the exclusion of the plaintiff and after them, the defendants are at present in possession of the suit lands;

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viii) the plaintiff never possessed the suit lands jointly with the defendants in any manner and she has been ousted from the suit lands from more than 20 years;

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ix) the defendants perfected their right over the suit lands by adverse possession;

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x) the suit is bad for non-joinder of necessary parties:

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The lower appellate court at the first instance refused to interfere with the dismissal of the suit. This Court in the second appeal

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filed by the unsuccessful plaintiff, remanded the matter to the lower appellate court with the following observation:-

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“The lower appellate court being a court of fact should have analyzed the evidence on record in the light of issues whether there was partition by metes and bounds and that the defendants have ousted the plaintiff, an admitted cosharer and they only should have held that there has been an ouster”.

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As after remand, the lower appellate court has allowed the appeal, the unsuccessful defendants have approached this Court by filing this Second Appeal.

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The appeal has been admitted on the following substantial questions of law :

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(a) Whether a suit for partial partition is maintainable on the basis of admitted fact that all the family properties have not been included in the suit?

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(b) Whether the defendants have not proved ouster of the plaintiff from the suit land?

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It would be appropriate at this stage to reproduce the relevant

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portion of the para of judgment of the lower appellate court i.e. para 6 (part)for proper appreciation:-

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“Ext.1 disclosed that though the properties were recorded in the name of Nirasi, but the same has been mutated in the name of Damuni and Nali whereas properties covered under Exts. A and B of village Sarubhadi and

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Ghadaghaguri has been recorded in the name of Nirasi and Rengtu Mohanta, the foster son of Nirasi . But in col.5 of the Mutation Khatian it has been mentioned that Rengtu was the adopted son of Nirasi. Though the question of adoption was not raised, but it is admitted case of the parties that Rengtu came to the house of Nutunu, the original land owner along with Nirasi. An explanation has been offered by the plaintiff in the evidence that some properties were given by Nutunu to Rengtu. Further the Ext.1 discloses about Ac.7.00 acres some odd lands were recorded in the name of Damani and Nali after mutation though the same was originally recorded in the name of Nirasi Bewa alone in the 1930-31 settlement. Further the story that during life time of Nutunu he separated his properties between his two wives in farfetched to be believed and during evidence, the defendant-respondent Debu Mohanta has stated in his evidence that Nirasi was living jointly with her mother and aunt who also gave marriage to her step daughters that is Damuni and Nali. He also stated that Nirashi was possessing the suit lands and subsequently divided the same between his mother and aunt and after partition the properties were mutated in their names. Thus, the story that there was partition between the two wives and Nutunu is disbelievable. The other witnesses examined on behalf of the defendants do not say about partition, but they stated about the sale of land by the plaintiff and the sons of Rengtu. The law is well settled that the person who pleads partition is to establish the same. In the absence of proof of partition between the two wives of Nutunu there cannot be any presumption that the

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suit properties were partitioned between the parties and the suit properties exclusively fell to the share of the grandmother of the defendant that is Lata. Nutunu is the sole owner of the properties land the parties are claiming their shares through their mothers, the daughter of Nutunu. It is also admitted case of the parties that Nutunu died long prior to the Hindu Succession Act came into force. Thus after death of Nutunu his surviving wife Nirasi became the sole owner of the suit properties, as Lata predeceased her. Though not admitted by the respondents, but if Lata had not predeceased Nirasi, how the name of Nirasi was recorded in respect of the suit properties in the year 1930-31 settlement. The explanation offered by the appellant that some properties were given to Rengtu, as he came with Nirasi to the family of Nutunu cannot be disbelieved. So the properties sold by the sons of Rengtu along with the plaintiff is presumed to be the property given by Nutunu or his wife Nirasi to Rengtu. The further explanation offered by the plaintiff-appellant that she put her L.T.I. as per the request of the sons of Rengtu is to be believed when the name of Rengtu along with Nirasi were available in mutation khatian that is Exts. A and B. So there cannot be a presumption of partition in view of the execution of the sale deed by the sons of Rengtu along with appellant”.

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In view of the above finding of the lower appellate court, it has

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held that the parties being co-sharers and when there remains evidence that the plaintiff takes paddy and rice twice in a year, merely because the

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plaintiff was not in physical possession, it cannot be said that she had been ousted.

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Learned counsel for the appellants submits that the suit as laid is not maintainable since the plaintiff in spite of all the opportunity has not come out with clean hands by bringing the properties of village Sarubhadi and Ghodaghaguri to hotchpot and that is purposely avoided so as to take the maximum advantage that over and above those property, she could be getting her share wholly detrimental to the defendants that they would be totally deprived of their share over the land of said two mouzas. This concerns with the first substantial question of law. It is next contended that the lower appellate court has allowed the appeal on erroneous reasonings and without dealing with the real point in issue for which the matter had been remitted to it by this Court. He further contends that the finding that the defendants cannot perfect their title over the suit properties by way of adverse possession in the absence of previous partition by metes and bounds is wholly untenable and rather contrary to law.

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Learned counsel for the respondents submits that a suit for partial partition is maintainable and here when the defendants have not come forward with a specific plea on that score, the suit as laid cannot be dismissed on that ground alone as the parties if so desire can very well bring about another suit for partition of those two other mouzas. On merit she submits all in favour of the findings of the lower appellate court that

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the pleas of prior partition and ouster have been rightly repelled as the evidence on record when viewed with the settled position of law do not justify the acceptance of said plea.

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As the first substantial question of law touches the maintainability of the suit and learned counsel for the parties have advanced their rival submission on that, it is essential that the same be addressed first.

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The fundamental rule is that a partition suit should embrace all the joint properties of the parties concerned in the suit. Violation of that rule will result in the multiplicity of litigation, which all parties and courts must avoid and discourage. The rule is primarily based on considerations of equity and convenience, it belongs more to the province of adjective law than substantive law. There is however relaxation in certain cases and a partial partition can be allowed; (a) as where different portions of the property lie in different jurisdictions, or (b) when some portions of the property is at the time incapable of partition, or (c) when the property from its nature is impartible, or (d) the property held jointly with strangers who cannot be joined as parties to a general suit for partition, or (e) where co-tenants by mutual agreement decide to make partition of a part of the joint property retaining the rest in common.

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However, it has to be weighed in mind that the court which

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has the general jurisdiction, administering both with the equitable remedies; may determine the issues of title, investigate the disputes

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between different parties claiming the share, and then proceed with the partition so as to dispose of the whole controversy between them. In essence, the limitations attending proceedings in partition are constantly weakening and the tendency to do full and complete justice to the parties in one is becoming irresistible. So in order to decide whether in the facts and circumstances of the case the partial partition if can be ordered even when the case comes under the ambit of the relaxations to the general rule, it has to be kept in mind that when the partial partition is proved or admitted, the presumption arises that there has been partition in entirety with reference to all the rights of the properties and that should not be taken undue advantage of by the suitor by getting the decree for partial partition having remained in possession or enjoyment of rest of the properties either directly or indirectly and thereby he would be banking upon the presumption all throughout to thwart the move for the partition of the other properties in his control and disposal when that occasion comes.

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Keeping in mind the above settled principles of law holding the field, let us now advert to the relevant facts of the case touching the point. In the instance case, none disputes that Nutunu Mohanta, the original owner had lands in three villages namely, Sarubali, Sarubhadi and Ghogaghoguri and that is also reiterated by the plaintiff and her witnesses. Ext.A the certified copy of the mutation list dated 15.04.1030 concerns with the land of Sarubhadi. It stands recorded in the name of

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Rengtu, the foster son of Nirasi. Ext.B, the certified copy of the mutation list dated 04.04.1930 reveals that the lands Gadaghaguri stands recorded in the name of Nirasi and Rengtu. It stands undisputed that in the mutation Case No. 382 of 1954-55, the suit land had been mutated and recorded in the name of Damuni and Nali who are represented by the defendants specifically deleting the name of Nirasi which was there in the records of 1930-31 settlement This has been proved as Ext.1. Exts. C to C/12 series are the rent receipts which reveal payment of rent by the defendants’ branch. Ext.D is the sale deed dated 06.1.1968 executed by the plaintiff and the son of Rengtu, the foster son of Nirasi in respect of the land of Sarubhadi and Ghodaghoguri. The sale transaction made by Damuni and Nali in respect of the portion of land of Sarubali in favour of Debakilal and Ghasi is the other circumstance which stands to be taken note of. All these factual aspects are not disproved by the plaintiff except saying that the lands of village Sarubali have been surreptiously recorded in the name of Damuni and Nali in the year 1954-55.

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Admittedly, properties of other two mouzas with the required descriptions have not been given so as to be brought within the purview of this suit for partition. Thus if the main plea of defendants as also the claim based an ouster are negated then all the properties of three villages are to be partitioned. The plaintiff has not included the properties of those two other villages namely Sarubhadi and Ghodaghaguri in this suit for partition and those have been kept out of the hotchpot which are

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specifically stated by the defendants to have been allotted to Nirasi and in their enjoyment and now with the plaintiff as also with some purchasers from them. In this suit only the property of one village is sought to be partitioned.

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In such situation in my considered view, the suit as laid is not maintainable and no preliminary decree can be passed for partition of the suit property in the absence of the properties of other two villages since in the facts and circumstances of the case, there remains every likelihood of serious injustice being caused as here the defendants specifically plead and have led some evidence to show that the lands of other two mouzas were/are not in their enjoyment being allotted to Nirasi in a partition effected by Nutunu. So in the event, it is said that the plaintiff is entitled to her share over the suit property situated at mouza Sarubali, the equal share over the property of those two other mouzas of Sarubhadi and Ghodaghaguri have to be found out and the defendants are accordingly to be held entitled to their share over the lands of those two left out mouzas. The plaintiff thus is found to have not approached the court with clean hands and by suppressing the material facts. In the factual settings of the case, this suit for partition of lands only at mouza Sarubali faces the legal hurdle, for removal of which the plaintiffs have not yet taken any such step. So the case in hand does not fall within the excepted category so as to be maintainable and its culmination with a preliminary decree for partition of land of one mouza. Thus the first

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substantial question of law stands answered in favour of the appellants that the suit as laid is not maintainable in the eye of law and a preliminary decree for partial partition as prayed for in the facts and circumstances cannot be passed. The judgment and preliminary decree passed by the lower appellate court are thus unsustainable and accordingly those are hereby set aside.

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In view of that answer to the first substantial question of law, the second substantial question of law does no more survive for consideration in receiving the answer.

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In the result, the appeal stands allowed. The suit as laid and for the reliefs claimed is hereby dismissed. In the facts and circumstances, the parties are directed to bear their respect cost throughout.

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…………………….. D. Dash, J.

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Orissa High Court, Cuttack Dated, the 5^th August, , 2016/Routray

Guddu v. Saimani

Case brief

What is this about?

What did the court decide?

Guddu v. Saimani

Case brief

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