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2016 Supreme(Ori) 436
IN THE HIGH COURT OF ORISSA, CUTTACK
D. DASH, J.
Ekabal Hussain & others – Appellants
Versus
Makasud Hussain & others – Respondents
R.S.A. NO. 48 OF 2010
Decided On : 09-08-2016
For the Appellant : M/s. A.K. Mohapatra, Alok Ku. Mohapatra, S.K. Padhi, A.R. Swain, & S.K. Mishra
For the Respondent: M/s. S.K. Dash, Anang Ku. Otta, Mrs. Arunima Dhalsamanta & Miss Swetlana Das
The validity of a registered sale-deed and the grounds for challenging it, along with the applicability of the Code of Civil Procedure in partition suits.
Headnote:
Sale-Deed - Partition Suit - Code of Civil Procedure - Ext. B - Section 100
Fact of the Case:
The plaintiff filed a suit for partition of Schedule -A land and allotment of share. The lower appellate court included the property covered under a registered sale-deed in the partition, which was challenged by the defendants in the second appeal.
Finding of the Court:
The trial court's finding that the property covered under the sale-deed is not liable to be partitioned was upheld, and the judgment and preliminary decree passed by the lower appellate court were set aside.
Issues: The main issue was the genuineness and validity of the registered sale-deed dated 16.07.1951, Ext. B, and whether the property covered under it is liable to be partitioned or excluded from the partition.
Ratio Decidendi: The court held that the sale-deed was valid and not challenged for over 30 years, and the grounds for challenging it were found to be untenable. The lower appellate court erred in including the property in the partition based on the sale-deed being void.
Final Decision: The appeal was allowed, and the judgment and preliminary decree passed by the lower appellate court were set aside, restoring those passed by the trial court.
JUDGMENT :
This second appeal under section 100 of the Code of Civil Procedure has been filed calling in question the judgment and decree passed by the learned Adhoc Addl. Sessions Judge (FTC No. IV), Bhubaneswar in R.F.A. No. 18/104 of 08/05.
2. The respondent no. 1 as the plaintiff had filed the suit for partition of Schedule -A land and allotment of share to him as also to the others as indicated on para-4 of the plaint. The suit was preliminary decreed by order as under:-
“The suit is preliminarily decreed in part on contest against the defendant No. 10 to 15, 29, 32 and 40 and Defendant Nos. 1 to 3, 18, 21 to 23 and 30 and Defendant Nos. 16, 24 to 28 and Defendant no. 43 and exparte against the rest of the Defendants without cost. Let the suit properties be partitioned between the parties wherein the plaintiff and Defendants No. 10 to 16 be allotted 2/10th share and Defendant nos. 34 to 39 be allotted 1/10th share. Defendant Nos. 31 to 33 be allotted 1/10th share and Defendant Nos. 40 to 42 be allotted 1/10th share out of the suit ‘A’ Schedule property within a period of one month ailing which the plaintiff is at liberty to partition the suit properties through a Civil Court Commissioner in due process of law and to make the preliminary decree final. It is to be kept in mind while allotting share that the ancestor of the plaintiff and defendant No. 10 to 16 and the ancestor of Defendant No. 34 to 39 along with two daughters of Md. Hussain had sold away some properties towards their share vide Ext. B out of the suit properties in favour of the father of Defendant no. 43 and a such the plaintiff and Defendant No. 10 to 16 and Defendant No. 34 to 39 are be allotted jointly 3/10th of the suit properties in a separate patch out of which Defendant No. 43 be given Ac. 0.16 dec. of land purchased vide Ext. b and the balance land if available be allotted in favour of the plaintiff and Defendant No. 10 to 16 jointly and Defendant No. 34 to 39 jointly in the ratio 2:1.”
The respondent no. 1-plaintiff by the above order having only been partially aggrieved preferred an appeal under section 96 of the Code of Civil Procedure. The main ground of attack to the preliminary decree is with respect to the genuineness and validity of the registered sale-deed dated 16.07.1951, Ext. B and accordingly the relief sought is for necessary modification of the decree, consequential to that. The properties covered under the said sale-deed when had been excluded from the purview of partition, the lower appellate court holding to the contrary, has thus held the same as also liable for partition. So, now the defendants being aggrieved by the judgment and decree passed by the lower appellate court have filed this second appeal.
3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.
4. In view of the challenge, now the scope of the appeal centers round the finding of the trial court so far as the issue no. 2 and 3 are concerned which relate to the said registered sale-deed dated 16.07.1951 admitted in evidence and marked as Ext. B. The point remains whether the said sale-deed is genuine and valid in the eye of law and as such whether the property covered under the said sale-deed is liable to be partitioned or to be excluded from the purview of the partition.
5. The appeal has been admitted on the following substantial question of law:-
Whether the lower appellate court has fallen in grave error, both in law and fact by ignoring the sale-deed, Ext. B and going to set aside the finding of the trial court that the property covered under it is not liable to be partitioned and by holding that it is also liable to be partitioned, when the document is more than 30 years old remaining unchallenged for all these period?
6. Learned counsel for the appellants submits that the sale-deed, Ext. B is a valid document in the eye of law and when that has remained
