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IN THE HIGH COURT OF ORISSA
R.K. Dash, J.
SURENDRANATH SAHOO - APPELLANT
Versus
MOHENDRA SAMANTRAY AND OTHERS - RESPONDENT
S.A. No. 13 of 1987
Decided On : 24-04-1998
CIVIL PROCEDURE CODE, 1908 - SECTION 100 - SECOND APPEAL - ADMISSION - SUBSTANTIAL QUESTION OF LAW - REQUIREMENTS - STRANGER PURCHASER - JOINT FAMILY DWELLING HOUSE - RIGHT TO JOINT POSSESSION.
Fact of the Case:
Plaintiffs filed a suit seeking a declaration that they have the option to purchase the shares of the suit land of defendants 2 to 5 and 6 from defendant 1, a stranger transferee, and for a permanent injunction restraining defendant 1 from interfering with their possession over the suit property. Defendant 1 claimed that the suit property was no longer a joint family dwelling house and that he had purchased the shares of defendants 2 to 4 and 6 and amalgamated them with his own land.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiffs, but the appellate court modified the decree by holding that if defendant 1 was in possession, he should vacate the building within one month, failing which the plaintiffs would be at liberty to evict him through the court. Defendant 1 appealed to the High Court.
Issues: Whether the High Court erred in admitting the second appeal without formulating any substantial question of law.
Ratio Decidendi: The High Court held that the second appeal did not involve any substantial question of law and dismissed it. The court noted that the suit property had the character of a joint family dwelling house belonging to the plaintiffs and defendants 2 to 6, and that defendant 1, a stranger purchaser, failed to establish that there was a partition of the suit property by metes and bounds amongst the co-sharers. The court also noted that it is settled law that a stranger purchaser cannot have joint possession of a dwelling house belonging to a joint family.
Final Decision: The High Court dismissed the second appeal.
JUDGMENT :
R.K. Dash, J. - Heard. Shri I.C. Dash, learned Counsel for the respondents, submits that respondent No.9 having died in the meantime, appeal cannot be heard without bringing his L.Rs. on record. Since the interest of respondent No. 9 is represented by other respondents. 1 am of the considered opinion that substitution is not necessary in peculiar facts and circumstances of the case.
2. This appeal is directed against the judgment and decree of the learned Additional District Judge. Puri, in Title Appeal No. 34/1 of 1985/84. The appellant was defendant No. 1 and respondents 1 to 4 were the plaintiffs in Title Suit No. 125/64 of 1983/80. The other respondents, namely, respondents 5 to 11 were defendants 2 to 6. being the co-sharers of the plaintiffs. In the suit the plaintiffs prayed for the following reliefs:
"That the plaintiff therefore prays:
(a) The Court be pleased to declare that the plaintiffs have the option to purchase the shares of the suit land of the defendants 2 to 5 (two to five) and of the defendant No. 6(six) at such reasonable price as may be mutually agreed upon or as may be determined by the Court from the said defendant No. 1 (one).
(b) that the Court be pleased to permanently restrain the defendant No. 1(one)not to interfere in the plaintiff's possession over the suit property and from destroying, damaging or making any waste and damaging in suit land or change its shape in any form.
(c) award costs of the suit against the defendants.
(d) Any other relief which the Court deems just and proper in fact and circumstances and case may also be decreed."
3. Shortly staled, the plaintiff's case was that the suit property specifically described in the schedule of the plaint is the homestead land belonging to plaintiffs and defendants 2 to 8 over which there exists joint family dwelling house. Defendant No. 1. a stranger to the family claimed to have purchased the share of defendants 2 to 4. and 6. But sine the suit property is joint family qua the dwelling house, he being a stranger-transferce is not entitled to have joint possession. With these averments, the plaintiffs filed the suit claiming the reliefs as quoted above.
4. Only defendant No. 1 contested the suit by filing written statement. He urged that the suit was not maintainable since the suit property was no more joint family dwelling house of the plaintiffs and defendants 2 to 6. His positive assertion was that there was amicable partition between the parties whereupon they were possessing their respective shares separately. At first he (defendant No. 1) had interest from Ananda Samantray. father of defendants 2 to 4 under the registered sale-deed dated 23.3.1971 and subsequently purchased the 1/4th interest of defendant No.6 by registered sale-deed dated 1.7.1978. After purchase he amalgamated the same with his own land and has been possessing by converting it to a compact area. The suit property having lost the character of joint family qua the dwelling house, the plaintiffs are not entitled to the reliefs as prayed for.
5. On the above pleadings the learned trial Court framed 8 issues of which issue Nos. 3 and 6 were not pressed. Both parties led oral and documentary evidence in support of their respective cases. Learned trial Court on consideration of the evidence decided the remaining issues in favour of the plaintiffs and decreed the suit. Against trial Court's judgment and decree the defendant No. 1 preferred appeal and the learned first appellate Court on reappraisal of the evidence and on consideration of the points of law involved set aside that part of the judgment and decree of the trial Court giving option to the plaintiffs to purchase the shares of defendants 2 to 6. Insofar as the decree for permanent injunction, the learned appellate Court modified the same by holding that if defendant No. 1 is in possession, he shall vacate the building within one-month, failing which the plaintiff shall be at liberty to evict him through Court. Aggrieve
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