GAJENDRA MOHAPATRA Vs. PADI BEWA

JUDGEMENT

(1.) PLAINTIFFS are the appellants in this First Appeal. They filed Title Suit No. 300 of 1976 in the Court of Subordinate Judge, Cuttack with the prayer to grant a decree of partition by partitioning the suit Scheduled -'A' property of Khata No. 52, measuring an area of Ac.1.23 decimals in Mouza Daradagram, Tauji No. 2173 under Jagatsinghpur P.S. and to allot the area of Ac.0.33 decimals, sold under registered sale deed dated 24.10.1949, to the share of the plaintiffs by allotting 1/3rd share in favour of late Laxman and his son, who were succeeded by the widow of Laxman namely Chanda Bewa, and said Chanda Bewa sold the suit property in favour of the father of the plaintiffs as per the registered sale deed executed on 24.10.1949. Defendants in that suit are the recorded tenants belonging to a joint Hindu family. Out of them, defendants 1 to 3, 6 to 10 and 12 to 16 contested the suit by filing a joint written statement. Inter alia, they claimed that the suit land is part and parcel of the joint family property, that was never partitioned amongst the coparceners and late Chanda Bewa being a pre -Act widow, was not eligible to alienate a portion from the ancestral homestead property through the sale deed, Ext. 1. They also pleaded that the plaintiffs or their father never acquired title and possession over that land and therefore they are not entitled to get a decree for partition. Alternatively, they pleaded that in the event of a decree for partition, plaintiffs being stranger - purchasers, defendants exercise the right of pre -emption as per the provision in Section 4 of the Partition Act, and therefore appropriate order in that respect be passed by the Court. Broadly on these facts parties were at issues and the suit was contested. Following issues were taken up for consideration at the stage of trial and judgment.

(2.) PLAINTIFFS examined one Pravakar Mohapatra, a person aged about 45 years by 9th April, 1980 as P.W. No. 1 and one Krushna Mohapatra, aged about 70 years by 10th April, 1980 as P.W. No. 2 in support of their claim. Admittedly, both of them are not parties to the transaction as attesting witness or the Scribe of the sale deeds. At the same time, plaintiffs did not examine any one amongst them in support of their claim. They relied on the sale deed, the certified copy of which has been marked as Ext. 1, two sheets of rent receipts (Exts. 2 and 2 -A) which do not contain any particulars about the plot numbers etc. and four Record of Rights of different Holdings recorded in the name of Chanda Bewa and one of them in the name of some others, in proof of the contention that there had been a partition in the families of the defendants and Laxman was separated from his other coparceners. Those R.O.Rs. have been marked as Exts. 3 to 3/c. On the other hand, in the process of giving rebuttal evidence the defendants have examined defendant No. 7 as D.W. 1 and one Fakir Mohapatra aged 79 years, Bulei Mohapatra aged 90 years as D.Ws. 2 and 3 in support of their claim that by the date of sale transactions the family of the defendants was joint in mess and property, there was no partition in their family, Chanda Bewa was being maintained by the joint family, plaintiffs or their father never possessed the suit property, and that the suit property is a part and parcel of the homestea'd land of the families of the defendants. They relied on rent receipts marked Exts. A to A/2.

(3.) EFFORTS of the appellants is to get a decree for partition, allotment of a share to their transferer (Chanda Bewa) and to get the lands covered under Ext. 1 allotted to their share. Facts and evidence available in the L.C.R. relating to death of Laxman and his son is not disputed while advancing argument by the appellants. Such evidence, as recorded by the Court below, gives Chanda Bewa the status of a pre -Act widow. Therefore, plaintiffs' prayer for a decree will be liable for consideration if the plaintiffs have succeeded in proving the fact that, (1) by the date of alienation under Ext. 1 Chanda Bewa was exclusive owner of that land because of partition in the family prior to the date of such alienation, or (2) even if she was a limited owner of the said property there existed any legal necessity or compelling reason for her to alienate such property. So far as that legal position is concerned, there is no dispute between the parties. When factual assertion and legal evidence is necessary to resolve an issue, it cannot be decided merely on the basis of law. As rightly noted by the trial Court, the evidence from the side of the plaintiffs is hopelessly insufficient to cater to the need of the requirement of law to record a finding about existence of any of the aforesaid two conditions in support of the claim of the plaintiffs on the basis of Ext. 1.