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1960 Supreme(Ori) 113
HIGH COURT OF ORISSA
J. K. Misra, J.
MAHADEI BEWA - Appellant
Versus
KELUNI DEI - Respondent
Second Appeal 301 Of 1959
Decided On : DECEMBER 08, 1960
B.K.PAL, J.RATH, M.S.Rao, P.K.DHAL, U.N.RATH
In a partition suit, the court should respect the possession of the parties as far as practicable and allot shares accordingly. A co-sharer who extends his constructions and possession without any apparent bona fides is not entitled to be allotted the share of another co-sharer and compensated with the price thereof. A co-sharer who is in possession of more land than his legitimate share is liable to compensate the other parties by way of ground rent.
Headnote:
PARTITION - PRELIMINARY DECREE - ALLOTMENT OF SHARES - PRINCIPLES - EXCESS POSSESSION - MESNE PROFITS - GROUND RENT.
Fact of the Case:
Plaintiff and defendant No. 2 appealed a preliminary decree in a partition suit, challenging the allotment of shares and the denial of mesne profits. Defendant No. 1 had purchased an 8 annas share in the suit property, while the plaintiff purchased a 1/3rd share and defendant No. 2 purchased a 1/6th share. Defendant No. 1 had made substantial alterations and constructions on the property, occupying more than his allotted share.
Finding of the Court:
The court held that the appellate court erred in interfering with the trial court's discretion in not impleading the rival purchaser of defendant No. 2's share. It also held that defendant No. 1 was not entitled to be allotted defendant No. 2's share in the land and compensated with the price thereof, as he had extended his constructions and possession without any apparent bona fides. The court further held that defendant No. 1 was entitled to get his constructions and building materials removed from any area allotted to the other parties, but he was not entitled to any further equity. The court also held that the plaintiff and defendant No. 2 were entitled to a share in the ground rent for defendant No. 1's excess enjoyment of the suit land.
Issues: 1. Whether the appellate court erred in interfering with the trial court's discretion in not impleading the rival purchaser of defendant No. 2's share? 2. Whether defendant No. 1 was entitled to be allotted defendant No. 2's share in the land and compensated with the price thereof? 3. Whether defendant No. 1 was entitled to any further equity for his constructions and building materials in the area allotted to the other parties? 4. Whether the plaintiff and defendant No. 2 were entitled to a share in the ground rent for defendant No. 1's excess enjoyment of the suit land?
Ratio Decidendi: 1. The court held that the appellate court erred in interfering with the trial court's discretion in not impleading the rival purchaser of defendant No. 2's share, as the transfer of the deity's property involved several complicated questions and the trial court had rightly exercised its discretion in leaving that aspect of the litigation out of the scope of the present suit. 2. The court held that defendant No. 1 was not entitled to be allotted defendant No. 2's share in the land and compensated with the price thereof, as he had extended his constructions and possession without any apparent bona fides. The court reasoned that there was no equity in favour of defendant No. 1 to be allotted defendant No. 2's share in the land, compensating defendant No. 2 with the price thereof. 3. The court held that defendant No. 1 was entitled to get his constructions and building materials removed from any area allotted to the other parties, but he was not entitled to any further equity. The court reasoned that defendant No. 1 had gone on building constructions over the joint property of the parties without any partition or the consent of others, and therefore he was not entitled to any further equity. 4. The court held that the plaintiff and defendant No. 2 were entitled to a share in the ground rent for defendant No. 1's excess enjoyment of the suit land. The court reasoned that defendant No. 1 was in possession of more land than his legitimate share, and therefore he was liable to compensate the other parties by way of ground rent.
Final Decision: The appeal was allowed with costs, and the decrees passed by the courts below were modified to the extent indicated by the court. The order of the appellate court regarding costs of courts below stood.
J. K. MISRA, J.
( 1 ) THIS is a second appeal by the plaintiff and defendant No. 2 over a preliminary decree arising out of a suit for partition. The suit property comprises of two plots nos. 72 and 73, measuring 23 acre and. 104 acre respectively in Cuttack town-both contiguous the latter plot being to the east and south of the former. To the west of the two plots lies a lane and to the north of the two plots lies the main road. The two plots Originally belonged to three brothers--Harekrushna, udayanath and Krushna. Defendant no. 1 purchased the l/3rd share of Udayanath in 1934, and purchased the l/6th share of one of the two sons of Harekrushna in 1935. In 1938 the l/6th share of the other son of Harekrushna was purchased by defdt. No. 2, a deity, represented through its marfatdar, then a minor who himself was represented by his mother, the plaintiff. In the same year and shortly after the said purchase, the plaintiff purchased the l/3td share of Krushna. Before harekrushna's sons and brother sold the suit property, they had a thatched house over plot No. 73th plot No. 72 there was a Darchandanadar who was ultimately ejected after purchases by the parties. The Original owners had made no partition of the suit property amongst themselves before they sold their respective shares. Defendant No. 1, after his purchase of 8 annas share in the suit property, which was earlier to the purchase made by the plaintiff and defendant No. 2, occupied the thatched house that stood in plot No. 73, the original owner residing far away. Ho subsequently substantially remodelled the old house and raised some new constructions and also raised a compound wall adjoining the eastern boundary of plot No. 72. After the ejectment of the Darchandanadar from plot no. 72, the plaintiff raised a thatched shed in a portion of that plot. The plaintiff was in possession of. 031 acre, whereas defendant no. 1 was in possession of. 096 acre out of the two suit plots. Defendant No. 2 was not in physical possession of any part of the suit plots at any stage.
( 2 ) IN the suit for partition, the plaintiff claimed mesne profits from defendant No. 1 being in possession of the old house and of a larger area than what was clue to his share. The trial court disallowed the plaintiff's claim for mesne profits and passed a preliminary decree for partition directing that the two plots would be treated as a compact area, and defendant No. 1's 8 annas share should be allotted in the eastern-most portion, whereas the plaintiffs l/3rd share would be allotted in the western-most portion, and that defendant No. 2's l/6th share would be allotted in between them.
Since defendant No. 1 had reoriented the old house, the trial court valued the old house at Rs. 200/- and directed defendant No. 1 to pay the plaintiff and defendant no. 2 their respective shares out of the same. It further directed that in case any of the new constructions mads by defendant No. 1 in plot No, 73 fell to the share of the plaintiff or defendant No. 2, that construction was to be valued and defendant No. 1 was to recover the price thereof from the party, to whose share that construction would fall. It further laid down that in case any single room or similar structure appertained to the share of two persons and the division could not be made without destroying the intrinsic value of the property, the structure or room should be allotted to the party to whose share the major part of it appertains, and the other party should be entitled to be compensated to that extent. It may be noted that during the trial of the suit, the plaintiff's share and the share of defendant No. 2 were sold to a third parson, the deity being represented through the minor marfatdar's natural mother--the plaintiff--in the said, sale, and this purchaser wanted to be substituted as a party for the plaintiff and defendant no. 2. Shortly thereafter, defendant No. 1 purchased the deity's l/6th share from the deity's minor marfatdar's adopt
