HADIBANDHU MOHARANA Vs. SMT. SOBHA DEB & OTHERS

JUDGEMENT

(1.) This Appeal involves a challenge to the judgment and decree dated 7.10.2009 and 14.10.2009 respectively passed in R.F.A. No.3/2010 of 2008-04 thereby dismissing the Appeal of the plaintiff and confirming the judgment and decree dated 9.12.2003 and 28.12.2003 respectively passed in T.S. No.427/1994, a suit for partition. Plaintiff is the appellant in this Second Appeal and the defendants are the respondents herein against a confirming judgment.

(2.) Facts involving the case, as revealed from the submission and the materials available on record, are that the appellant-plaintiff filed T.S. No.427/1994-I claiming to pass a decree in favour of the plaintiff for partition of Schedule-A land by declaring the right, title, interest and possession of the plaintiff to the extent of Ac.0.04 1/2 decs. and further after the preliminary decree is passed to make the same final by deputing a Survey Knowing Commissioner from his Court and to allot Ac.0.04 1/2 decs. of land to the plaintiff out the Schedule-A land under a separate allotment sheet by giving due delivery of possession to the plaintiff in accordance with law. The appellant-plaintiff also prayed for decree for cost of the suit and such other relief as may be deemed fit and proper.

(3.) The suit was registered as T.S. No.427/1994-I. Being noticed, defendant nos.11 to 14 initially filed a written statement again on being allowed also filed amended written statement. These defendants while claiming that the plaintiff has no cause of action to file the suit against them also claimed that the suit as laid is not maintainable, further also bad for non-joinder of necessary parties on the premises that after the death of late Bankim Chandra Samal, his property was devolved upon defendant nos.11 to 14 and three daughters involved therein and these three daughters being not made parties to the suit making the suit liable to be dismissed for non-joinder of proper party. These defendants also contested the claim of the plaintiff on the premises that the plaintiff has not mentioned in which portion of the C.S. Plot No.533 he was in possession for the delivery of possession even by the vendor, Prithinath Deb. The defendants also denied the claim of the plaintiff that defendant no.1 was in peaceful possession of the land under C.S. Plot No.533 by virtue of the partition dated 20.12.1969 including the disputed area. These defendants also disputed the claim of the plaintiff with regard to delivery of possession of area, if any, by defendant no.1 to the plaintiff. They also disputed the claim of the plaintiff to have any attempt for recording the disputed land in his favour during Major Settlement operation, on the other hand the land over which the plaintiff claims, which was purchased by him from defendant no.1, was already sold under a previous registered sale deed dated 6.8.69 by the father of defendant no.1 even prior to partition dated 20.12.69. These defendants also disputed the claim of plaintiff on possession over the disputed property and on the other hand claimed that there is never any delivery of possession involving the suit land taking place rather the entire land involving Schedule-A of the plaint measuring Ac.1.054 decs. is being possessed by these defendants. The defendants also disputed the claim of the plaintiff that he was residing outside Balasore for his service need rather claimed that the plaintiff was almost a permanent resident of Balasore Town. The defendants also claimed the averments by the plaintiff in paragraph-6 that these defendants are turbulent persons and that there was a request for mutual partition and that such request has been turned down by any of the defendants. They also denied to have given any threat to the plaintiff as claimed by the plaintiff. These defendants on the other hand put forth a case that defendant no.1 being a shrewd and troublesome person has executed the sale deed with collusive intention and this was not within the knowledge of these defendants. These defendants also submitted that in the event there is any fraud played by defendant no.1, nothing prevented the plaintiff for recovery of the consideration money involved therein taking appropriate steps. Similarly while denying the averment made in paragraph-7 of the plaint, these defendants claimed that although in the Major Settlement operation the land was recorded jointly in the name of late Bankim Chandra Samal, the father of defendant nos.11 to 13 and husband of defendant no.14, defendant nos.1 to 10 and Sadhu Charan Jena. They alleged that the plaintiff with ill motive attempted to snatch away favourable order. It is in the premises of correct recording in Major Settlement and their long undisputed possession over the disputed property, for no step taken by the plaintiff at any stage of the matter to correct the R.O.R. and for amalgamation of the properties by these defendants after death of Bankim Charan Samal, the actual owner of the property, the claim made by the plaintiff remains imaginary. These defendants also claimed to be paying rent to the State and thus denied that the plaintiff has any manner of title and possession over the suit land. Defendant nos.15 and 16 filing a separate written statement while claiming that there is no cause of action involving the suit and the suit is not maintainable involving raising a question of suit suffering for mis-joinder of parties so far defendant no.16 is concerned, brought to the notice of the Court that defendant no.16 since a purchaser in respect of Ac.0.03 decs. from out of Schedule-A land in the meantime, he has even sold the same to one Manmath Behera son of Late Jayakrushna Behera. While not disputing the plaint averment in paragraph-3, these defendants rather claimed that the submission made therein is beyond the knowledge of these defendants and asked the plaintiff to strictly prove the same. They have submitted that it is a fact that under registered deed of partition dated 20.7.59 the suit land was allotted to Nanda Dulal Deb and during life time of Nanda Dulal, he had transferred some portion of the land and remained in possession of the balance land and that there was a subsequent partition amongst his legal heirs. They claimed that the balance portion of the suit land was allotted to defendant no.1. These defendants did not dispute the claim made in paragraphs-4 and 5 and admitted that the disputed land was jointly recorded without involving the plaintiff in the Major Settlement operation. These defendants have admitted the plaint averments in paragraphs-7, 8 and 9. They however disclosed that they have no objection for partition involved, if any. Defendant nos.20 to 23 similarly filing a separate written statement while attacking the suit on the ground of no cause of action and that the suit is not maintainable also contended that the allegation so far as defendant nos. 20 to 23 made is also false. These defendants also disputed the claim of the plaintiff that he is in possession of the suit land. These defendants also challenged the maintainability of the suit on the premises of non-inclusion of entire properties and also non-joinder of parties, i.e., the purchasers in the meantime. They however disclosed that during life time Nanda Dulal remaining in possession of the land executed registered sale deed nos.2869 dated 26.5.83, 2866 dated 26.5.83, 2867 dated 26.5.83 and 89 dated 6.1.95 in respect of Ac.0.05 decs. in respect of Ac.0.05 decimals, Ac.0.7 decs. and Ac.0.03 decs. making a total area of Ac.0.20 decs. in favour of defendant nos.20 to 23 and that they are in peaceful possession of the property sold in their favour. Defendant nos.24 and 25 while filing independent written statement while disputing the maintainability of the suit on the premises of no cause of action, being based on false and imaginary facts also challenged the suit Schedule-A property involving Major Settlement Plot Nos.177, 179, 178, 180 and 181 in Major Settlement Khata No.133. These defendants also claimed that the suit is bad for non-joinder of party claiming that while Nanda Dulal Deb was in possession, he has sold Ac.0.07 decs. and Ac.0.05 decs. respectively in favour of defendant nos.24 and 25 in the year 1983 and that they are in peaceful possession of the said land. Defendant no.1 similarly filing an independent written statement while supporting the case of the plaintiff submitted that the plaintiff has the cause of action to file the suit for partition involving a joint recording of the suit land. In course of Major Settlement operation and for creation of a cloud on the title of the plaintiff in respect of the suit land being purchased from defendant no.1, while claiming that the description of the suit land was correct, these defendants submitted that the land under C.S. Plot No.533 originally belonged to both Manmath Deb and Manoranjan Deb and Manmath Deb died leaving behind his son, Nanda Dulal Deb. He also pleaded that during life time of Manoranjan Deb and Nanda Dulal, they had sold away some portion of the suit land to different persons and the remaining portion of C.S. Plot No.533 along with some other undisputed properties belong to the joint family. Defendant no.1 contended that there was a partition effected vide registered partition deed no.8430 dated 20.7.59 and in the said partition, the suit land fell to the share of Nanda Dulal Deb. Nanda Dulal died leaving behind defendant nos.1 and 2, the son and daughter and also his wife, Nandarani, who died in the year 1982. For involvement of a family arrangement, this defendant became the absolute owner in possession in respect of the left out portion by Nanda Dulal in respect of Schedule-A property. Accordingly, defendant no.1 was in possession of the disputed property. While not disputing the allegation made in paragraph-4 of the plaint, defendant no.1 admitted the fact of sale of the disputed Schedule-B land by him, vide sale deed bearing no.1077 dated 2.3.1983 and also the fact of delivery of possession of the land to the plaintiff. This defendant while not disputing the averment made in paragraph-5 of the plaint and partly disputing the plaint averment in paragraph-6 submitted that it is false on the part of the plaintiff to claim that defendant no.1 was a shrewd and turbulent person. Defendant no.1 also claimed that he had not threatened the plaintiff on 2.10.94 to dispossess him from his lawful possession of the disputed land. So far as joint recording in the Major Settlement and the request for partition are concerned, this defendant while admitting both the claim submitted that this defendant has never turned down the request of the plaintiff for partition. This defendant while claiming that he was in valid right, title, interest and possession involving the disputed property has rightly sold the same to the plaintiff and claimed that to avoid any future conflict and for convenience of the parties, he has no objection in the event the Schedule-A property is partitioned and the area of the plaintiff is identified and delivered with the possession.