Ashok Ku. Mohanty and others vs Antaryami Mohanty and others

Dr. A.K.Rath, J

Defendant Nos.1 to 6 and 9 are the appellants against a reversing judgment.

Plaintiffs-respondents 1 to 3 instituted the suit for partition. The following genealogy would show the relationship of the parties.Case of the plaintiffs

was that Bhagi was the common ancestor of parties. He had two sons; Dhoi and Gopi. Gopi was adopted by Pari. Plaintiffs and defendants 9 and 10

are sons and daughters of Dhoi. Defendants 1 to 8 are sons and daughters of Gopi. Defendant no.5 is the widow of Gopi. The suit property is the joint

family property of Pari and Bhagi. After death of Pari and Bhagi, Gopi and Dhoi are in possession of the ancestral thatched house. The suit property

was recorded jointly in 1962 settlement ROR. Although they were living in separate mess, but there was no partition by metes and bounds. All

attempts made by the plaintiffs for partition of the properties ended in fiasco.

Defendants 1 to 5 and 8 filed a written statement stating, inter alia, that there was complete partition of the suit schedule properties by metes and

bounds during life time of Pari and Bhagi. Gopi and Dhoi were in separate enjoyment of the properties. Plaintiffs reside in six thatched rooms standing

on the eastern portion of the suit land, which has a separate holding. Defendants 1 to 5 and 8 are in possession of the western portion of the plot

having five tiled rooms, three pucca rooms and courtyard. All are residing in separate mess. The houses of both the parties have been separated by a

brick wall. The parties have dealt with the properties independently after partition. Gopi sold Ac.0.04 dec. of land to Kamala by means of a registered

sale deed dated 21.2.1963. He had also alienated Ac.0.02 dec. to Udaynath by means of a registered sale deed dated 22.2.1969. Subsequently

Udaynath purchased Ac.0.04 dec. of land by means of a registered sale deed no.4350. The land purchased by Udaynath was mutated in his favour in

Mutation Case No.213 of 1972-73. Udaynath sold Ac.0.06 dec. of land to Fulla Bewa, defendant no.5 by means of a registered sale deed dated

6.12.1978 and delivered possession to her. Defendant no.5 became the exclusive owner of the suit property. Defendants filed Title Suit No.15 of 1976

for declaration of ownership and permanent injunction. The suit was decreed.

On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, both oral and documentary to substantiate their

case. Learned trial court dismissed the suit holding, inter alia, that there was partition of the suit schedule properties between the parties. The plaintiffs

filed Title Appeal No.4 of 1994 (80 of 1993) before the learned Civil Judge (Senior Division), Banki. Learned appellate court held that there was no

previous partition between the ancestors of the parties in respect of the suit properties. Held so, it allowed the appeal.

The second appeal was admitted on the following substantial question of law;

“Whether the lower appellate court committed gross error in not considering the evidence on record particularly with regard to Exts. A to K and

decreeing the plaintiffs’ suit for partition ?

Heard Mr. Bibhudananda Muduli, learned counsel for the appellants. None appeared for the respondents. Â

Mr. Muduli, learned counsel for the appellants submitted that there is evidence on record with regard to severance of joint status between the

parties in mess and property. Exts. F, G and H reveal partition of agricultural land of the parties long since and separate enjoyment. A boundary wall

exists between the portions enjoyed by the parties. The predecessor of the defendants dealt with his portion in the year 1963 and 1969, which was

subsequently purchased by defendant no.5 vide Ext.A. From Ex. K and K/1, it is evident that the parties are living separately. There is separate

holding number. Exts. B and C reveal separate payment of electricity bill. The finding of the learned appellate court that since portion of suit plot has

not been mutated separately according to the share of the parties, it cannot be said that there was previous partition between ancestor of the parties is

perverse. To buttress his submission, he cited the decisions in the case of Fakir Charan Parida v. Benudhar Parida and others, 1971 (2) CWR 848,

Raghab Jagatsingh (Expunged) Indra Dalai & others v. Sanei Dalai and others, 1974 (2) CWR 1021, Heram Patel v. Parikhita Patel and others, 64

(1987) CLT 448 and Dayanidhi Padhan and others v. Gadadhar Padhan and others, 70 (1990) CLT 527.

In Heram Patel (supra), on survey of the decisions of the apex Court as well as Privy Council, this Court held thus;

“7. Partition consists in a numerical division of the property in defining the shares of the coparceners in the joint property and an actual division of

the property by metes and bounds is not necessary. (See Ram Parshad Singh v. Lakhpat Koer ILR Cal. 231) If the shares are defined whether by an

agreement between the parties or otherwise then the partition is complete. After the shares are defined if there has been no division of property by

metes and bounds then it is the mode of enjoyment of the property that is only effected but not the tenure of the property. The property ceases to be

‘joint immediately after the shares are defined. Partition means a severance of joint status and, therefore, it is a matter of individual volition. What is

necessary to constitute a partition is, therefore, a definite, unequivocal indication of the intention of a member of a joint family to separate himself from

the family and enjoy his share in severalty. The Supreme Court examined this point in Raghavamma v. Chenchamma MANU/SC/0250/1963 : AIR

1964 SC 136, Puttamngamma and others v. M. S. Ranganna and others, and Smt. Krishnabai Ganaparao Deshmukh v. Appasaheb Tuliaramarao

Nimbalkay and others, AIR 1979 SC 1880, and held that to constitute severance there must be an intimation, indication or representation of such

intention and what form that manifestation should take would depend upon the circumstances of each case. It is implicit in this principle that this

manifestation or declaration of intention should be to the knowledge of the persons affected for a mere uncommunicated declaration may amount to no

more than merely harbouring an intent to separate. It is immaterial in such a case, whether the other members assent. Once a member of a joint

family has clearly and unequivocally intimated to the other members his desire to severe himself from the joint family, his right to obtain and possess

his share is unimpeachable whether or not they agree to a separation) and there is an immediate severance of the joint status. This intention to

separate may be evinced in different ways, either by explicit declaration or by conduct. There cannot be any manner of doubt that a partition can also

be effected by an agreement between the parties. It has been held by their Lordships of the Privy Council in the case of Appovier v. Ram Subba

Aivan (1866) 11 M.I.A 75 (P.C), that the true test of partition of property according to Hindu Law is the intention of the members of family to

become separate owners. Intention being the real test, it follows that an agreement between the members of a joint family to hold and enjoy the

property in defined shares as separate owners operates as a partition) although there may have been no actual division of the property by metes and

bounds. It is no doubt true that a person who claims partition has to prove the same, but it may not be necessary in every case to prove the same by a

document of partition and the burden can be discharged by other acts and conducts though standing by themselves not conclusive proof of partition yet

may lead to the conclusion that there has been partition in conjunction with ether facts. Separate occupation of portions of the joint property division of

the income of the joint property, definement of shares in the joint property in revenue records, independent dealings with the joint family property, are

some such evidence from which a conclusion can be arrived at that there had been a partition in the family.â€​

In Fakir Charan Parida (supra), this Court held that where a prior partition is admitted or proved, the presumption is that it was a complete partition

in all respects and that there is no presumption that any property was excluded therefrom. The presumption is a rebuttable one.

In Raghab Jagatsingh (supra), this Court placed reliance on the decision of this Court in the case of Jayakrishna Sahoo v. Paremeswar Sahoo, 24

(1958) CLT 430 and held that where the parties have been possessing lands separately for a long time and further when they are exercising acts of

ownership in respect of those lands, the courts of fact are competent enough to give proper weight to such circumstances and come to the conclusion

of completed partition.

In Dayanidhi Padhan (supra), the view expressed in Heram Patel (supra) was reiterated.

Reverting to the facts of the case and keeping in view the aforesaid principles, it appears that there is no dispute with regard to partition of the

agricultural lands. The plaintiff asserts that the homestead land, where the residential house of the plaintiff and the defendants stands, has not been

partitioned. According to the defendants, there was previous partition. Learned trial court, on a scanning of the evidence on record and pleadings, held

that P.W.1 admitted that Dhoi and Gopi were separately enjoying their agricultural lands and accordingly record-of-right had been published in their

names separately. There is severance of joint status between the parties. Certified copies of record-of-right vide Exts.F, G and H show that

agricultural lands had been partitioned long before. The contesting defendants are paying electricity charges in respect of their separate holding

standing over the suit land under Exts. B and C. The voter list, vide Ext.K, reveals that holding number of defendant no.5 is 58, whereas the holding

number of plaintiffs 2 and 3 is 59. It further held that there was no partition deed in proof of the alleged partition. The dispute has to be set at rest on

the basis of available circumstantial evidence such as separate holding, separate possession, separate dealing of the property and separate mess.

Defendant no.5 had purchased Ac.0.06 dec. of land of the suit land vide Ext.A. The plaintiff has not challenged the same. Since P.W.2 has admitted

that he has received the consideration money from defendant no.5, the property covered thereunder becomes the exclusive property of defendant

no.5. Plaintiffs have got their residential houses on the eastern half of the suit land, whereas defendants have got their residential house on the western

half of the suit land. Both the houses are divided by an old pucca wall which is about 30 to 40 years old. There is no compelling reason to re-open the

partition. Learned appellate court upset the finding of the learned trial court on the ground that the suit land has been wrongly recorded in the names of

Dhoi and Gopi and the same has not been mutated separately in their names. There is no evidence on the side of the defendants to show the modality

of partition, which portion of the suit land fell to whose share. It further held that if at all there was any partition of the agricultural land admitted to

have been partitioned by metes and bounds, there is no reason not to record the suit land in separate khatians. The feature of separate possession,

separate mess and separate panchayat holdings taken together are compatible with separate living for convenience, but would not necessarily lead to

the conclusion of previous partition.

Once parties admit that there is a previous partition of the agricultural lands and record-of-right have been published in their names separately,

merely because the record-of-right in separate holding has been published jointly is per se not a ground to disbelieve the prior partition more so on the

clinching material on record. On taking a holistic view of the matter, learned trial court came to a conclusion that there was earlier partition between

the ancestor of the parties in respect of the suit plot dividing the same half and half. But then, the learned appellate court upset the same on untenable

and unsupportable grounds. The learned appellate court committed a manifest illegality and impropriety in not considering the evidence on record,

particularly with regard to Exts.A to K. The judgment suffers from vice of non-consideration of materials available on record. The substantial question

of law is answered accordingly.

Resultantly, the appeal is allowed. The impugned judgment is set aside. Consequently, the suit is dismissed. There shall be no order as to costs. Â