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2022 Supreme(Ori) 267
IN THE HIGH COURT OF ORISSA AT CUTTACK
D. DASH, J.
Gagan Kumari Das and Others – Appellants
Versus
Susila Das and Others – Respondents
R.S.A. No. 214 of 2016
Decided On : 04-07-2022
Advocate Appeared:
For the Appellant : D. Mund.
The burden of proof in establishing a prior partition of ancestral property lies with the party making the claim, and reasonableness of claims is a crucial factor in determining the validity of such partitions.
Headnote:
Partition - Ancestral Property - Code of Civil Procedure, 1908, Section 100 - Summary of Acts and Sections: Code of Civil Procedure, 1908, Section 100 - The court discussed the provisions of Section 100 of the Code of Civil Procedure, 1908, which allows for an appeal to be filed against a judgment and preliminary decree. The court also referred to the principles of partition of ancestral property and the burden of proof in establishing a prior partition. The court's decision was influenced by the interpretation of evidence and the reasonableness of the claims made by the parties.
Fact of the Case:
The case involved a dispute over ancestral properties among the descendants of a common ancestor. The plaintiff sought a partition of the ancestral land, while the defendants claimed that a prior partition had already taken place, and they were no longer part of the joint family.
Finding of the Court:
The court found that the defendants failed to provide clear and acceptable evidence of a prior partition and that their claim of separate possession of certain properties was not sufficient to establish their exclusive ownership. The court also noted the unreasonableness of the defendants' claim to a significant portion of the land, casting doubt on the validity of the prior partition.
Issues: The key issues included the existence of a prior partition, the burden of proof on the defendants to establish the same, and the reasonableness of the defendants' claim to a substantial portion of the ancestral land.
Ratio Decidendi: The court held that the burden of proof lay with the defendants to establish a prior partition, and their evidence was found to be insufficient. The court also emphasized the need for reasonableness in claims related to ancestral property partitions.
Final Decision: The court dismissed the appeal, affirming the preliminary decree for partition of the ancestral properties. The court emphasized the consideration of equitable factors in effecting the partition.
JUDGMENT :
D. DASH, J.
1. The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) have assailed the judgment and preliminary decree dated 06.02.2016 and 19.02.2016 respectively passed by the learned District Judge, Kalahandi in RFA No. 03 of 2003.
By the same, the Appeal filed by the Appellants (Defendant No. 6 to 10) under section 96 of the Code has been dismissed and thereby the judgment and preliminary decree passed by the learned Senior Civil Judge, Senior Division, Keonjhar in T.S. No. 85 of 2000 have been confirmed.
2. 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.
3. The Plaintiff’s case is that Purandar Das, the common ancestor of the parties had seven sons namely, Achyuta, Hita, Abodhuta, Jagdish, Hari, Bhagaban and Radhamohan. Purandar is dead and so also his elder son Achyuta. The Plaintiff and Defendant No. 1 to 5 are serving the sons of Purandar. Defendant No. 6 is the widow of Achyuta and Defendant No. 7 to 10 are the sons and daughters of Achyuta.
It may be stated that original Defendant No. 1 having died during pendency of the suit, his legal representatives are on record as Defendant No. 1(a) and 1(g). The Plaintiff, having died during pendency of the First Appeal, his legal heirs are on record, who are the Respondent Nos. 1 to 3.
It is stated that the suit lands are the ancestral properties of the parties and it was recorded as such in the record of 1955 settlement. The name of father of the Plaintiff and Defendant No. 1 to 5 had been wrongly recorded as Bibachha Das in place of Purandar Das. It is the further case of the Plaintiff that suit land was never partitioned in metes and bounds. However, when members of the family increased, for the sake of convenience, the parties went to possess separate potions of lands remaining in separate mess. The Plaintiff however wanted a partition of the suit land in metes and bounds and proposed the same to the Defendant’s and when the same was not paid any heed to, the suit has come to filed for partition of the suit properties.
4. The Defendant Nos. 2, 4 and 5, in their written statement, have admitted the case of the Plaintiff and have accepted the proposal of the Plaintiff that there should be partition of the suit properties in metes and bounds.
The Defendant No. 6 to 10 in their written statement have however, challenged the claim of the Plaintiff for partition of the suit properties stating that they have already separated themselves from the joint family since long and the properties in suit are no more the joint family property available for the partition amongst the parties. They thus claim that they are no more the members of the undivided joint Hindu family and all are leaving in separate mess and estate.
It is specifically stated that during the lifetime of Purandar, due to frequent quarrel and disturbances in the joint family, Achyuta had been given the properties described in Schedule ‘X’ of the written statement and since that time onwards, Achyuta was possessing the same and thereafter, these Defendant Nos. 6 to 10 have been possessing the said land by making many improvements therein. This land in Schedule ‘X’ of the written statement is said to be no more the joint family property and as such according to them, cannot be taken as the subject matter of the suit for partition as upon that land the parties other than the Defendant No. 6 to 10 have no right at all.
5. On the above rival pleadings, the Trial Court framed as many as four issues. Coming to the answer the crucial issue, i.e. Issue No. 1 with regard to the specific claim of the Defendant Nos. 6 to 10 in so far as land in Schedule ‘X’ in written statement is concerned, the Trial Court, on examination of evidence and their evaluation, has recorded the finding against the Defendant Nos. 6 to 10. Then accordingly answering th
