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High Court Of Orissa
B. N. MISRA
JAGANNATH SAHU - Appellant
Versus
GOLAPI BARIK - Respondent
Second Appeal 356 Of 1977
Decided On : 05/11/1984
HINDU LAW - JOINT FAMILY - PARTITION - BURDEN OF PROOF - ADMISSIBILITY OF DOCUMENTS - LIMITATION - ADVERSE POSSESSION.
Fact of the Case:
Plaintiff and defendant No. 2 were coparceners of a Hindu joint family. Defendant No. 1 claimed to have purchased the suit land from defendant No. 2 by a registered deed of sale and applied for mutation of the said land in her favour. The plaintiff came to know of the invalid, inoperative and illegal sale by defendant No. 2 at the stage of enquiry in respect of the mutation case and in spite of the objection of the plaintiff, the learned Tahsildar recorded in the remarks column of the Khatian that defendant No. 1 was in illegal possession. The plaintiff filed a suit for a declaration that the sale deed alleged to have been executed by defendant No. 2 in favour of defendant No. 1 should be declared to be invalid and inoperative, the right, title and interest of the plaintiff over the suit land should be declared and possession of the plaintiff along with defendant No. 2 be declared, or, in case of dispossession, possession should be restored to the plaintiff through court.
Finding of the Court:
The court found that the suit land was the ancestral property of the plaintiff and defendant No. 2, that defendant No. 1 had failed to prove that there was a partition between the two sons of Subala about twenty years ago and that the suit land had fallen to the share of defendant No. 2 at the said partition, that the sale deed dt. 23-4-65 executed by defendant No. 2 in favour of defendant No. 1 was not binding on the plaintiff, that the plaintiff was not in possession of the suit land on the date of the suit and that the suit had been filed within the prescribed period of limitation of twelve years and was not barred by the law of limitation.
Issues: 1. Whether the suit land was the ancestral property of the plaintiff and defendant No. 2? 2. Whether there was a partition between the two sons of Subala about twenty years ago and that the suit land had fallen to the share of defendant No. 2 at the said partition? 3. Whether the sale deed dt. 23-4-65 executed by defendant No. 2 in favour of defendant No. 1 was binding on the plaintiff? 4. Whether the plaintiff was in possession of the suit land on the date of the suit? 5. Whether the suit had been filed within the prescribed period of limitation of twelve years and was not barred by the law of limitation?
Ratio Decidendi: 1. The normal status of every Hindu family is joint in the absence of proof of division; such is the legal presumption. 2. The burden of proof is on the party asserting partition to prove the same. 3. Documents which are not properly proved or are inadmissible cannot be relied upon to prove partition. 4. A sale deed executed by one coparcener without the consent of the other coparceners is not binding on the other coparceners. 5. A suit for declaration of title and recovery of possession is governed by Article 142 of the Limitation Act and must be filed within twelve years from the date of dispossession.
Final Decision: The appeal was allowed. The judgment and decree of the learned lower Appellate Court were set aside and those of the trial court restored.
B. N. MISRA, J.
( 1 ) PLAINTIFF is the appellant against the reversing judgment of the learned Subordinate Judge, Sonepur. Present respondent No. 1 was defendant No. 1 in the trial court. The late Gourhari Sahu was defendant No. 2. After the death of defendant No. 2 on 5-12-75, present respondent No. 3, the daughter and only heir, was substituted in place of deceased defendant No. 2. The name of the late Gourhari Sahu, who was inadvertently added as respondent No. 2 in this court has been deleted by Order No. 7 dt. 17-5-78 of this court.
( 2 ) THE following genealogy which is admitted describes the relationship between the plaintiff, the late defendant No. 2 and respondent No. 3. Bhama (Respondent No. 3) the total extent of the suit land is Ac. 2. 550 decimals. It appertains to plot No. 1132 with an area of Ac. 1. 680 decimals and part of plot No. 1133 with an area of Ac. 0. 870 decimals under Khata No. 95 of Mouza Phulmuthi under Binka P. S. As described in the genealogy, the plaintiffs father and the late defendant No. 2 are the two sons of Subala. Plaintiffs father and Subala were dead at the time of filing of the suit. Plaintiffs family is governed by the Mitakshara School of Hindu Law. The suit land is the ancestral property of the plaintiff and defendant No. 2 and there has been no partition of the same between the plaintiff and (Sic ). defendant No. 2, Gopal and defendant No. 2 or Subala and his sons. Till the filing of the suit the plaintiff and defendant No. 2 were the coparceners of the Hindu undivided family. In the current settlement the suit land has been recorded jointly in the name of the plaintiff and defendant No. 2 and Khatian has been issued to them. Defendant No. 2 by himself had no right to transfer any portion of the lands comprised under Khata No. 95 including the suit land. Defendant No. 1 claimed that she had purchased the suit land from defendant No. 2 by a registered deed of sale dt. 23-4-65 and applied for mutation of the said land in her favour. The plaintiff came to know of the invalid, inoperative and illegal sale by defendant No. 2 at the stage of enquiry in respect of the mutation case and in spite of the objection of the plaintiff, the learned Tahsildar recorded in the remarks column of the Khatian that defendant No. 1 was in illegal possession. It is asserted that defendant No. 1 has never been in possession of the suit land. However, in view of the wrong entry in the Khatian, the plaintiff was forced to take shelter of the court. Accordingly, he has prayed that the sale deed alleged to have been executed by defendant No. 2 in favour of defendant No. 1 should be declared to be invalid and inoperative, the right, title and interest of the plaintiff over the suit land should be declared and possession of the plaintiff along with defendant No. 2 be declared, or, in case of dispossession, possession should be restored to the plaintiff through court.
( 3 ) DEFENDANT No. 1 had denied the plaint allegations in the written statement filed by her. According to her, the lands appertaining to Khata No. 95 are not the ancestral property of the plaintiff and defendant No. 2. Some twenty years ago (1954) there was a partition between the two sons of Subala and the suit land along with other lands had fallen to the share of defendant No. 2 at the said partition. Since after the partition, Gourhari and his brother Gopal possessed their respective shares separately. Gopal died some fifteen years ago (1949) and since then the plaintiff has been separately possessing his share while defendant No. 2 had been possessing his share including the suit land separately until 23-4-65 when by a registered deed of sale for legal necessity he transferred the suit land to defendant No. 1 for a consideration of Rs. 1,000/ -. Defendant No. 2 delivered possession of the suit land to defendant No. 1 and since then the latter has been possessing the suit land on her own right, title and interest. She has been paying rent in r
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