Back
High Court Of Orissa
G. B. Pattanaik
FAKIR KHAN - Appellant
Versus
KUANR KHAN - Respondent
FIRST APPEAL 50 Of 1983
Decided On : 09/12/1990
PARTITION - PARTITION ACT, 1893 - SECTION 2 - OWELTY - APPLICATION OF PRINCIPLE OF OWELTY IN PARTITION PROCEEDINGS - CIRCUMSTANCES IN WHICH PRINCIPLE OF OWELTY CAN BE APPLIED - COMPENSATION IN LIEU OF SHARE - DISCRETION OF COURT.
Fact of the Case:
Plaintiff and defendant were co-owners of a joint family property. Plaintiff filed a suit for partition, claiming 1/3rd interest in the property. Defendant claimed that plaintiff had relinquished her share and that he had constructed his house on the disputed land with the full knowledge of the plaintiff. The trial court found that there was no relinquishment of share and that the defendant had no right of preemption. A preliminary decree was passed declaring the plaintiff's 1/3rd interest in the suit properties. The defendant appealed, but the appeal was dismissed. The plaintiff filed an application for drawing up of the final decree. A Civil Court Commissioner was deputed to effect the partition and submitted a report stating that the defendant had encroached upon Ac. 0. 007 decimals of land belonging to the plaintiff. The trial court accepted the report and made the decree final. The defendant filed an appeal and an application under Ss. 2 and 3 of the Partition Act, praying that he be permitted to purchase Ac. 0. 007 dec. of land on which the wall of his residential building stands.
Finding of the Court:
The court held that the principle of 'owelty' could be applied in the present case, as the partition of the property would destroy its intrinsic value. The court directed that the plaintiff would be entitled to Rs. 10,000/- (rupees ten thousand) in respect of Ac. 0. 007 dec. of land and the said sum of Rs. 10,000/- may be paid to the plaintiff by the defendant within two months from today, failing which it would be open for the plaintiff to execute the decree and take possession of the land in question.
Issues: Whether the principle of 'owelty' could be applied in the present case, as the partition of the property would destroy its intrinsic value.
Ratio Decidendi: The court held that the principle of 'owelty' could be applied in the present case, as the partition of the property would destroy its intrinsic value. The court relied on the following principles: * If no partition can be made without destroying the intrinsic value, then a money compensation should be given instead of the share which would fall to the plaintiff by partition. * Where one of the co-sharers builds a house on a portion of the joint family land for his own use, the said co-sharer cannot be held to be a trespasser and the other co-sharer when seeing the erection of the house stands by and makes no objection, the Court will presume his acquiescence to the erection of the building and will certainly not order demolition of the building which stands on the joint land unless it comes to the conclusion that injury would accrue to the co-sharer-plaintiff and also before the building was started objection was taken to its construction. * In such a case, it would be more appropriate to fix a reasonable price for the land in dispute and the party in possession of the excess land should be asked to compensate the plaintiff in money to the extent of his share.
Final Decision: The court allowed the appeal and modified the decree to the extent that the plaintiff would be entitled to Rs. 10,000/- (rupees ten thousand) in respect of Ac. 0. 007 dec. of land and the said sum of Rs. 10,000/- may be paid to the plaintiff by the defendant within two months from today, failing which it would be open for the plaintiff to execute the decree and take possession of the land in question.
G. B. PATTANAIK, J.
( 1 ) DEFENDANT is the appellant against the final decree in a suit for partition. Defendant is the brother of the plaintiff. Their father deceased Najib Khan was the owner of plot No. 952 Khata No. 1297, touzi No. 2616 situated at Dawan Bazar in the town of Cuttack measuring Ac. O. 86 decimals. Admittedly, plaintiff has 1/3rd interest and defendant has 2/3rd interest. Najib Khan died in 1932. The parties were continuing in joint possession, though plaintiff was keeping a different portion and defendant was keeping a different portion. The defendant however got the property mutated in his name in the revenue records. Plaintiff filed an application before the Tahasildar for correction of the same and that was allowed in respect of her 1/3rd share on 17-9-70. On an appeal being carried, the S. D. O. reversed the order dated 17-9-70 of the Tahsildar vide his order dated 16-5-71. Therefore the plaintiff filed the suit claiming 1/3rd interest in the suit properties.
( 2 ) THE defendant took the stand in the written statement that the plaintiff had relinquished her share by taking some money and the defendant had constructed his house with the full knowledge of the plaintiff on the disputed land. It was also averred that the plaintiff was never in possession of the disputed property and the Khasmal authorities granted lease in favour of the defendant after due enquiry and consequently the defendant had become the absolute owner of the property. The learned trial Judge on appreciation of the evidence before him, disbelieved the story of relinquishment of share by the plaintiff as well as receipt of money from the defendant. It was found that there being no registered document relating to relinquishment as required under S. 17 of the Registration Act, there had been no proof of such relinquishment. It was also observed that the defendant had no right of preemption. On these findings, a preliminary decree was passed declaring the plaintiff's 1/3rd interest in the suit properties. It was further directed that the portion on which the plaintiff's residential house was situated should be allotted to her. The defendant assailed the judgment and decree in appeal which was registered as First Appeal No. 16 of 1973 but that was dismissed by the High Court on 12-12-76. Thereafter, the plaintiff filed an application for drawing up of the final decree. In course of the final decree proceeding, the original plaintiff having died, her legal heirs were substituted. A Civil Court Commissioner was deputed to effect the partition and the said Civil Court Commissioner submitted his report stating therein that on actual measurement it was found that the defendant had encroached upon Ac. 0. 007 decimals of land belonging to the plaintiff and therefore the plaintiff was in actual possession of only A. O. 21 dec. 3 Kadis; whereas the defendant was in possession of Ac. O. 34 dec. 3 Kadis. This report was dated 1-1-80. No objection to the said report having been filed, on perusing the said report, the learned trial Judge accepted the same and made the decree final by order dated 31-3-80. It is against this final decree, the present appeal has been preferred.
( 3 ) ALONG with the appeal, an application has been filed in this Court by the appellant purporting to be under Ss. 2 and 3 of the Partition Act with the prayer that the appellant may be permitted to purchase Ac. 0. 007 dec. of land on which the wall of the residential building stands.
( 4 ) IN course of hearing of this appeal, the learned Counsel for the appellant raised the only contention that the defendant having already constructed his residential building over Ac. 0. 007 decimals of land which comes under the plaintiff 's share and allowing the plaintiff to possess the said Ac. 0. 007 decimals of land would have the effect of demolition of the building of the defendant that stands on the said land, the principle of 'owelty' should be applied and the plaintiff should be award
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
