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2018 Supreme(Ori) 772
IN THE HIGH COURT OF ORISSA
S.K. MISHRA AND Dr. A.K.MISHRA, JJ.
AHO No.09 of 1997
In the matter of an appeal challenging the judgment dated 30.09 1996 passed by the Hon’ble Single Judge in F.A. No.386 of 1983.
Decided on 18th December, 2018.
Pramodini Mishra and others. ... Appellants
Versus
Krushna Prasad Mishra
and others. ... Respondents.
For Appellants : M/s. R.C. Mohanty, R.K. Mohanty, D.K. Mohanty, N.Behuria and S.K. Acharya
For Respondents: M/s. R.K. Mohapatra, A.K. Baral, S.S. Kanungo, B. Dash, B. Sarangi, B. Routray, A.K. Mohanty, K.B. Kar, B. Parida, Sapan Sahoo, Bharati Das & U.C. Panda.
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 14 Rule 2 (1) - A Lawyer can abandon an issue but when Court is under legal obligation to answer that issue, it is desirable that a written memorandum is obtained in that regard and mention is made in the order sheet - The consequence of such ‘not pressed’ statement should be analysed in answering the issues so that meaning of ‘not pressed’ can be read into the context of the decision.
2. WORDS AND PHRASES - Judgment - ‘Not pressed’ contextually is a statement which may mean abandonment, admission and taken back - It is not an answer to any issue - The consequence of ‘not pressed’ of an issue if not analysed in the judgment, cannot be a caveat to doubt and ambiguity - It is wrong to import meaning into the words ‘not pressed’ when the said combination of words, i.e. ‘not pressed’ is likely to have several consequences in the lis.(Para - 17)
3. CIVIL PROCEDURE CODE, 1908 - Order 41 Rule 24 - The provision of Order 41 Rule 24, CPC makes it obligatory on the part of the Court to take a refuse first to answer the issue in the evidence on record is sufficient.
JUDGMENT
Dr. A.K. MISHRA, J. - This letters patent appeal has been preferred by the substituted legal heirs of the plaintiff against the judgment dated 30.09.1996 of the learned Single Judge in F.A. No.386 of 1983 wherein and whereunder the preliminary decree dated 13.05.1983 in a partition suit bearing No.T.S. 59 of 1980 passed by the learned Subordinate Judge, Jajpur was reversed resulting dismissal of the suit.
2. The facts in brief, shorn of detail and necessary for the disposal of this intra-court appeal lie on a narrow compass.
Upendra, the common ancestor of the parties had three sons, namely, Panchanan, Basudev and Dasarathi and three daughters, namely, Suma, Uma and Phula. Basudev had two sons, namely Krushna and Niranjan. Dasarathi had two sons, namely, Bishnu and Prahalad. Upendra died in the year 1976.
3. Upendra had owned joint family property of Ac.9.47, 1 Kadi 123 Biswas of land. During the period from 1929 to 1974 he had acquired 9 ½ acres of land in his name exclusively. There was a mutual partition in the year 1972. By gift deed dated 30.07.1974 Upendra had transferred Ac.4.97.3 links of land in favour of the sons of Basudev and Dasarathi, who were defendant nos. 3 to 6 in the original suit. Two sons of Upendra, namely, Basudev and Dasarathi filed Title Suit No.38 of 1977 against their brother Panchanan and others for partition of the joint family property except lands measuring Ac.4.97.3 links covered under the gift deed dated 30.07.1974. The above gifted land was not brought to the hotchpotch of the T.S,. No.38 of 1977 where Panchanan had registered contest.
3.1. As the brothers were gifted with the landed property measuring Ac.4.97.3 links by their grandfather Upendra, plaintiff-Panchanan felt aggrieved.
3.2. Panchanan as plaintiff brought the present T.S. No.59 of 1980 against his two brothers defendant nos. 1 and 2 and their sons defendant nos. 3, 4, 5 and 6. For clarity it may be stated that defendant nos. 3 to 6 were the donees under gift deed dated 30.07.1974 executed by their grandfather, Upendra
4. The lands covered under the gift deed was the subject matter of the partition suit on the ground that the donor Upendra had no authority to make gift of joint family properties which were acquired with the aid and assistance of joint family nucleus.
5. The contesting defendant nos. 3,4 and 5 resisted the claim for partition advancing plea that the gifted property was the self-acquisition of Upendra.
6. Defendant no.6, one of the donees, being minor was represented by the GAL. The other defendants did not choose to contest the suit. The plea of constructive res-judicata for the partition of joint family property in the earlier suit bearing T.S. No.38 of 1977, and the period of limitation to challenge the deed of gift was taken.
7. The learned Subordinate Judge framed the following eight issues:-
1. Is the suit maintainable ?
2. Has the plaintiff any cause of action to file the suit ?
3. Are the suit properties liable to be partitioned ?
4. Is the deed of gift dated 30.7.1974 executed by Upendra Mishra in the names of defendant nos. 3 to 6 valid transaction ?
5. Are the defendant nos. 3 to 5 bound by the decree in T.S. No.38 of 1977 ?
6. Is this suit barred by res-judicata in view of T.S. No.38/77 ?
7. To what share and extent of property in suit the plaintiff is entitled ?
8. To what relief, if any, the plaintiff is entitled ?
8. Learned Subordinate Judge in answering the issues nos. 3,4,7 and 8 held that the suit properties were the part and parcel of the ancestral properties belonging to the family and Upendra had no authority to alienate the same by way of gift in favour of defendant nos. 3 to 6. The share of the plaintiff was carved out to be 7/24 on the basis of notional partition. Issue nos. 1 and 2 were answered affirmatively in favour of the plaintiff.
9. As against issue nos. 5 and 6, learned Subordinate Judge in paragraph-14 of his judgment was mentioned “not pressed”.
Thus, a preliminary decree was pass
