Allowed

Nirmal Ch. Mohapatra v. Kailash Chandra

Orissa HC19 Dec 2023SA/424/2000

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the modification of share allotments in a partition suit. The court restored the trial court's decision, finding that prior partition was proven by conduct and separate possession.shares devolved upon one branch's representatives, entitling them to a larger portion than the other branch.

What did the court decide?

The impugned judgment and decree in the title appeal were set aside to restore the trial court's decision on share allotment.

Nirmal Ch. Mohapatra Vs Kailash Chandra — Partition | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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SA No.424 of 2000

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Nirmal Chandra Mohapatra and …. Appellants others

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Mr. S.P. Mishra, Senior Advocate

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-Versus-

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Kailash Chandra Mohapatra & …. others

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Respondents

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Mr. A.C. Mohapatra, Advocate

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CORAM: JUSTICE R.K. PATTANAIK

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DATE OF JUDGMENT:19.12.2023

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1 . The appellant filed instant appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the impugned judgment and decree dated 11^th September, 2000 promulgated in Title Appeal No.46 of 1992 by learned 2^nd Additional District Judge, Cuttack, whereby, the decision of the learned subordinate Judge, 2^nd Court, Cuttack in T.S. 90 of 1989 was modified to the extent of share allotted to the parties on the grounds inter alia that the same is untenable in law.

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The suit in T.S. No. 90 of 1989 was instituted by respondent No.1 succeeded by respondent Nos. 1(a) & 1(b) for partition and permanent injunction. The contention of the plaintiff is that there has been no partition by metes and bounds and the parties possesses the properties as per convenience and the plaintiff being the successors of one branch is entitled to half share therein. The share of interest as per the RoR has been questioned by the plaintiff, hence, the suit seeking partition of equal shares and allotment of the same. The defendants except defendant Nos. 4 & SA No.424 of 2000 Page 1 of 7

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Nirmal Ch. Mohapatra & others Vrs. Kailash Ch. Mohapatra & others

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5 contested the suit and challenged the claim of the plaintiff and justified the RoR prepared and published with separate notes of possession and allotment of share. It was denied by the defendants that there was any partition. It is objected on the ground that there are alienations made, which proved, the parties have had partition and separate possession of lands which are ancestral in nature. In support of such transfers, the defendants placed on record the sale deeds executed in respect of paddy lands. So, therefore, the defendants declined that there is no partition and challenged it in view of the separate notes of possession and earlier partition proved by conduct of the parties with the plea that the suit is not maintainable.

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This Court by order dated 13^th April, 2001 formulated following the substantial questions of law, such as:

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(i) Whether there was any prior partition whether the learned court below has erred in law in holding that there was never any partition by metes and bounds contrary to the when the documents under Ext. A, B, C, D, E, E-1 and F which clearly established prior partition?

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(ii) When it is fairly well settled that once there has been severance of status and shares are defined, the partition is complete and mere recording of the property jointly with separate note of possession cannot give rise to the presumption of jointness, whether the learned Additional District Judge has erred in law in holding that there was never any partition by metes and bounds mainly on the basis of Ext.A, the consolidation RoR, wherein, the properties have been recorded jointly though the documents vide Exts. A, B, C, D, E, E-1 and also Ext. F clearly establish that at least from the year 1930 till 1989

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SA No.424 of 2000 Page 2 of 7

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Nirmal Ch. Mohapatra & others Vrs. Kailash Ch. Mohapatra & others

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the parties have been separately recorded in respect of the properties they are in enjoyment and possession?

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(iii) When admittedly by a Regd. Sale deed Banamali has transferred his share in this suit land in favour of Bhikari in 1907, in the process of which the branch of Jayaram is entitled to 12 annas share (8 annas of Banamali by purchase and 4 annas of Jayaram) whether the learned lower appellate court is justified in holding that in the absence of any previous partition the purchase of Banamali will enure to the benefit of both Radhakrishna and Bhikari?

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(iv) When the plaintiff and defendants No.1 to 3 are admittedly in possession of 4 annas and 12 annas share in the family and the same stands fortified by the note of possession indicated in the successive the RoR whether the learned Lower Appellate Court is justified in not inferring previous partition?

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(E) Whether the learned Lower Appellate Court has lost sight of the basic requirements of the old and ancient partition and when there is sufficient evidence to show that there has been transaction interse separate possession of distinct parcels of land, can the findings are sustainable in the eye of law?

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Heard Mr. Mishra, learned Senior Advocate for the appellants and Mr. Mohapatra, learned counsel for the respondents.

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Mr. Mishra, learned Senior Advocate for the appellants would submit that learned lower Appellate Court could not have readjusted the shares which was rightly determined in the suit. It is contended that the interest of Banamali of the branch of Siba since devolved upon Jayaram of the branch of Madhab as

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SA No.424 of 2000 Page 3 of 7

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Nirmal Ch. Mohapatra & others Vrs. Kailash Ch. Mohapatra & others

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Dinabandhu pre-deceased him, the interest of the plaintiff and defendants would be 4 annas and 12 annas respectively which is as per the note of possession and in accordance with the RoR prepared and hence, learned Trial court correctly determined it which was without properly being appreciated stood wrongly modified entitling the plaintiff and the defendants to 8 annas each vis-à-vis the properties.

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On the other hand, Mr. Mohapatra referred to the evidence on record and claimed that there is no substantial question of law involved, hence, the appeal should be dismissed. It is contended that during consolidation operation, the suit land stood jointly recorded and the learned Lower Appellate Court rightly decreed the suit for partition which cannot be faulted with. Referring to Article 43(9) of Mulla’s Hindu Law vis-à-vis Section 4 of the Hindu Succession Act, the devolution of interest has been challenged by Mr. Mohapatra, learned counsel for the respondents.

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In so far as the suit is concerned, the issue before the learned Trial court was, whether, the plaintiff is entitled to partition to the properties claiming half share therein. The learned Lower Appellate Court, notwithstanding a sale deed under Ext. C said to have been executed by Banamali in favour of Jayaram, in absence of any evidence to show partition prior to 1907 held and concluded that there has been no partition by metes and bounds and therefore, the parties are entitled to half share each in the entire properties. From the pleadings and evidence on record, the relationship between the plaintiff and the defendants with reference to their common ancestor is not in dispute. In fact, the genealogy of the plaint stands admitted by the defendant except with the claim that Banamali, son of Siba died issueless leaving behind his widow Dayani, the fact which has been admitted by SA No.424 of 2000 Page 4 of 7

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Nirmal Ch. Mohapatra & others Vrs. Kailash Ch. Mohapatra & others

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the plaintiff during trial. As to the evidence of the plaintiff as P.W.1, there was no severance of status between the two sons of Uchhab, the common ancestor which has been denied by the contesting defendants. Admittedly, there is no documentary evidence in support of partition between the branches of the plaintiff and defendants.

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Considering the assertion of the parties and material evidence, it is made to suggest that there was severance of joint status dates back to 1912 for which no evidence can be expected to be available after so long. If there is no documentary evidence to support partition, law is well settled that any such act of separation can be examined with other contemporaneous documents and also by looking at the conduct of the parties. The defendants referred to the notes of possession in respect of the suit lands and other properties. In fact, the Record of Rights of 1912, 1930 and 1977 have been placed reliance on by the defendants to satisfy prior partition. So to say, there has been evidence to show severance of status, however, the crux of the dispute is whether there was any partition qua properties as against the separate notes of possession in the RoRs. Besides other evidence the defendants relied on the sale deeds dated 4^th March, 1907, 3^rd March, 1928 and 13^th May, 1939 which have been executed by Dayani, wife of Banamali and Radhakrishna, the father of plaintiff in order to substantiate earlier partition between the parties. Having regard to the evidence led by both the sides, it is clear that the joint status of the family of Uchhab severed long time before. The branches of Siba and Madhab said to have possessed properties separately which is also revealed from the RoRs. The dispute lies with regard to distribution of shares though the possession and enjoyment of the properties to be separate and independent of each other.

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SA No.424 of 2000 Page 5 of 7

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Nirmal Ch. Mohapatra & others Vrs. Kailash Ch. Mohapatra & others

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With regard to the allotment of the shares, learned Trial court held that plaintiff is entitled to 4 annas interest, whereas, defendants to 12 annas which was modified by learned Lower Appellate Court with 8 annas each. Admittedly, Banamali being son of Siba had interest in the ancestral properties succeeded by his wife Dayani and both died in 1911 & 1916 respectively. The other branch is led by Madhab succeeded by Rama, Mina, Dinabandhu, Purnananda and Jayaram. The eldest son Rama died issueless so also Purnananda and Mina was given in adoption leaving Dinabandhu and Jayaram as the left out successor of Madhab. From the evidence on record, it is further made to reveal that Dinabandhu died in 1914 and Jayaram in 1926. The interest of Banamali from the branch of Siba was succeeded by Dayani and since Dinabandhu, son of Madhab pre-deceased Dayani, therefore, such interest of Banamali devolved upon Jayaram, the last of the survivors from the branch of Madhab. In other words, since Banamali died issueless and his interest was succeeded by Dayani, who was either having a limited or full interest stood devolved upon the sons of Madhab and succeeded by Jayaram, who died in 1926. So to say, Dinabandhu having died in 1914, there was no scope of any devolution of the interest of Banamali through Dayani since Dayani died in 1916 two years thereafter, hence, it devolved upon Jayaram and succeeded by Bhikari and followed by the defendants. So, therefore, the plaintiff being the successor of Radhakrishna, son of Dinabandhu shall have a lesser interest and share in the properties than the defendants being the successors of Bhikari, son of Jayaram, who succeeded the interest of Banamali by devolution. So therefore, such allotment of shares by learned Trial court is in accordance with law, however, the same was modified in appeal. In fact, the learned lower appellate court despite Ext. C with a conclusion that there was no partition by metes and bounds held that the SA No.424 of 2000 Page 6 of 7

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Nirmal Ch. Mohapatra & others Vrs. Kailash Ch. Mohapatra & others

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parties are entitled to equal shares. But, then considering the manner of succession and devolution of interest of Banamali succeeded by the branch of Madhab, the Court reaches at a conclusion that the decision of learned Trial court to be correct which could not have been modified, hence, therefore, the impugned judgment in appeal is liable to be set aside to the extent indicated above. In other words, the allotment of shares so determined in the suit is to be restored. Accordingly, the substantial questions of law stand answered.

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10 . Hence, it is ordered.

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11 . In the result, the appeal stands allowed, As a necessary corollary, the impugned judgment and decree dated 11th September, 2000 promulgated in Title Appeal No.46 of 1992 by learned 2nd Additional District Judge, Cuttack is hereby set aside restoring the decision of the learned Trial court to the extent of shares determined with a finding that there was severance of status qua properties proved by the conduct of the parties coupled with separate notes of possession notwithstanding joint recording in respect thereof. However, in the circumstances, there is no order as to costs which are to be borne by the parties throughout.

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SA No.424 of 2000 Page 7 of 7

Nirmal Ch. Mohapatra v. Kailash Chandra

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Nirmal Ch. Mohapatra v. Kailash Chandra

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