SEBATI SWAIN Vs. BAIKUNTHA JENA

JUDGEMENT

(1.) IN this writ application under Article 227 of the Constitution of India, challenge has been made to the order dated 31st January, 1995 passed by the learned district Judge, Cuttack in C. R. No. 120 of 1994 confirming the order dated 16th August, 1994 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Title suit No. 155 of 1981.

(2.) THE brief facts of the case are as follows : present opposite parties 1 and 2 are two sons of one Narana. Opposite parties 3, 4 and 5 are sons and opposite party No. 6 is the daughter of Baraju. Opposite party No. 7 is the daughter of Kusa. Narana, Baraju and Kusa are sons of Dhadi. The disputed land under the Hal Khata No. 401 containing as many as 12 plots is admittedly the ancestral property of Laxman. Plot No. 1435 covering an area of Ac. O. 18 decs. stands recorded as 'ghara'. The nature of the land under plot No. 1434 covering an area of ac. O. 03 decs. stands recorded as 'bari' and in respect of land covering an area of Ac. 0. 31 decs. under plot No. 1463 there is no note about its user in the settlement records. Opposite parties 1 and 2 in the year 1981 filed title Suit No. 155 of 1981 for partition against opposite parties 3 to 6. Kusa the father of opposite party no. 7 in respect of 1/3rd share in the land covered under Khata no. 401. According to the plaint case, the share of opposite parties 3 to 6 is l/3rd, kusa the father of opposite party No. 7 is l/3rd and plaintiffs is l/3rd. During the pendency of the suit for partition, Kusa died leaving his daughter the present opposite party No. 7. Plaintiffs in the suit specifically stated that suit plot Nos. 1434 and 1435 contain original ancestral residential house as the same became insufficient to accommodate all the family members. Plot Nos. 1434 and 1435 covering an area of Ac. 0. 21 decs. were amicably partitioned between the three branches of Laxman's family equally. Present opposite parties 1 and 2 got Ac. 0. 07 decs. of land, opposite parties 3 to 6 got ac. 0. 07 decs. of land and opposite party no. 7 got Ac. 0. 07 decs. of land. Plaintiffs built their new residential house over their portion of land. The other two branches are living separately in their separate house constructed by them over their shares of land allotted to them in the said partition. There was no whisper in the plaint that the land appertaining to plot No. 1463 which is the subject-matter of the present case is being used as appurtenance to the dwelling house and by the time of institution of the suit there was no undivided dwelling house belonging to the three branches. In the suit, none of the defendants appeared in spite of notice and the suit was preliminarily decreed ex parte on 6-1-1983. In the said preliminary decree, it was specifically mentioned that plot Nos. 1434 and 1435 are homestead plots. At the time of final partition, the respective possession of three branches of family as per mutual partition in respect of those two plots should be respected. Subsequent to the aforesaid preliminary decree, there was a Panchayat Faisala on the intervention of the well-wishers of the parties on 18-10-1984. In the said Faisala, final partition of the lands covered under 12 plots under Khata No. 431 was effected and the previous mutual partition of two residential plot Nos. 1434 and 1435 was reflected. In the Panchayat Falsala, plot No. 1463 was partitioned by metes and bounds between the three branches of family in which opposite parties 2, 3 and 5 got Ac. 0. 16 decs. to their share and all the parties accepted the patichayat Faisala and put their signatures in the documents. After the said Faisala, the petitioner by registered sale deed dated 21st June, 1985 purchased the said area of ac. 0. 16 decs. of land from opposite parties 2, 3 and 5 which had been allotted to their share in plot No. 1463 for consideration of rs. 5000/ -. Since the date of the purchase, the petitioner on the strength of her purchase was possessing the said Ac. 0. 16 decs. of land. After purchasing the area, she raised stone compound wall. She also raised two pucca rooms with asbestos roofs in the said area and is living with her family in the said house and she has also undertaken construction of 6 other pucca rooms which are nearing completion. The total cost incurred by the petitioner in making these constructions was about rs. 5,00,000/ -. Thus, it was clear that long after the Panchayat Faisala mentioned above, the petitioner purchased the land and is residing with her family. Opposite party No. 1 after impleading the present petitioner as defendant in the suit filed a petition for making the preliminary decree final and in the said petition he claimed the relief under Section 4 of the Partition Act (for short "the Act") against the petitioner in respect of her purchased land. When the application for final decree was pending for disposal, opposite party No. 1 filed Misc. Case No. 26 of 1990 under Order 39, Rules 1 and 2 of the Civil Procedure Code to restrain the petitioner from interfering with the possession over the disputed land. The said misc. case was dismissed by the trial Court on 30th June, 1990. Against the said dismissal order of the trial Court, opposite party no. 1 filed Misc. Appeal No. 356 of 1990 and the same was remanded to the trial Court with a direction that a commissioner would be deputed at the cost of the plaintiffs to inspect the spot and file the report. On the basis of the said report, the trial Court would dispose of the injunction application on merit. As per the direction passed in the Misc. Appeal, the commissioner was deputed to inspect the disputed land and submit the report before the trial court. On the basis of the, said report, the trial Court dismissed the injunction application on 2-12-1992 on the finding that the present petitioner was in possession over the said land. From the said report, it was clear that the petitioner was in possession of the said property by the time plaintiffs filed application under Section 4 of the Act. After raising pucca construction over the disputed land, she is residing with her family members and has surrounded the suit land with stone wall and dug a well. After the injunction application was dismissed, the trial court heard the petition of the plaintiffs under Section 4 of the Act and allowed the said application of the plaintiffs to re-purchase the said land and directed to decide by negotiation about the present market value of the disputed land. The petitioner being aggrieved by the order of the trial court, filed Civil Revision No. 120 of 1994 before the learned District Judge who confirmed the same by order dated 31-1-1995. Hence this writ petition.

(3.) THE learned counsel appearing for the petitioner submitted that both the Courts below misconceived the scope of Section 4 of the Act and the pleader commissioner in his report stated that the petitioner was in possession of the disputed land after constructing pucca house where she is residing with her family members and the disputed land is surrounded by the boundary wall. The finding of the Courts below that the disputed land was a vacant land was not sustainable and during the pendency of the proceedings, the petitioner purchased the said land and raised the construction. Therefore, the said house constructed by the petitioner could not be said that the same was undivided dwelling house of the plaintiffs. Therefore, Section 4 of the Act is not applicable. He further submitted that in the final decree proceedings, the share has been allotted and after the disputed property was finally settled between the parties in the panchayat Faisala, the petitioner purchased the said property from the co-owners opposite parties 2, 3 and 5. Therefore, the plaintiffs and defendant No. 2 are not entitled to the benefit of Section 4 of the Act and taking aid of section 8 of the Act if the impugned orders are allowed to stand, grave injustice would be caused to the petitioner.