BAMBUDHAR ALIAS KAMBUDHAR PANDA vs HIRA ALIAS HARIHAR ALIAS HIRADHAN PATEL AND OTHERS

Dr.A.K.RATH, J.

Defendant no.1 is the appellant against a reversing judgment.

The plaintiff-respondent no.1 instituted the suit for declaration of title along with defendant no.2 and for declaration that the sale deed dated

8.4.1970 is null and void. The case of the plaintiff is that he along with defendant no.2 purchased Ac.0.55 dec. of land appertaining to hamid

settlement khata no.26, plot nos.165 & 166 of mouza/district Sambalpur Town from Apurna Patel and Ghaisan Patel by means of a registered sale

deed dated 23.1.1967 for a consideration of Rs.2,500/-. Since the date of purchase, he is in possession of his share. While the matter stood thus, on

8.4.1970 defendant nos. 2 and 3 sold Ac.0.05 dec. of land out of Ac.0.55 dec. on 23.1.1967 to defendant no.1 by means of a registered sale deed,

Ext.B. In that sale deed, defendant no.3 described himself as the adoptive father of the plaintiff. According to the plaintiff, he is the son of Sukru

Patel. He was a minor at the time of execution of the sale deed. No permission was obtained from the competent authority for alienation of the land.

Defendant no.1 filed a written statement stating, inter alia, that defendant no.2 had originally purchased Ac.0.55 dec. of land on 23.1.1967, when the

plaintiff was a minor and staying with her. The plaintiff had not paid any consideration. Out of love and affection, name of the plaintiff was

incorporated in the sale deed, Ext.2 as one of the vendee. The plaintiff had no title over the suit land. Defendant no.2 alienated the land to defendant

no.1 by means of a registered sale deed dated 8.4.1970, Ext.B, for a valid consideration. He is in possession of the suit land. No permission was

obtained from the competent authority under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 (“Act, 1956â€) for alienation of the

land.

Stemming on the pleadings of the parties, learned trial court struck five issues. Learned trial court held that the plaintiff was a benamidar.

Defendant no.1 purchased the suit land from defendant nos.2 and 3 by means of a registered sale deed. Defendant no.1 has constructed a house over

the suit land. Plaintiff is not entitled to claim any partition. Held so, it dismissed the suit. Feeling aggrieved, the plaintiff filed T.A.No.5/6 of 1985/86

before the learned Additional District Judge, Sambalpur. Learned appellate court held that the sale deed stands in the name of the plaintiff and

defendant no.2, Ext.2. The defendant nos.3 is not the adoptive father of the plaintiff. Defendant no.3 had no authority to sell the share of the plaintiff.

There is no evidence that the suit property was partitioned between the plaintiff and defendant no.2. Defendant no.1 failed to prove that transaction

was banami. The plaintiff and defendant no.2 had title over the suit land. The transaction was not for the benefit of the plaintiff. The plaintiff has half

interest over the suit land. The sale deed, Ext.B, is not binding on the plaintiff. Held so, it allowed the appeal.

This appeal was admitted on the substantial questions law enumerated in ground nos.1, 2 & 4 of the appeal memo. The same are:

“1. Whether in view of the concurrent finding that the present appellate is in possession of the disputed land by constructing a house thereon, the

lower appellate court should have held that the suit for mere declaration without any prayer for consequential relief was barred?

Whether in view of the fact that the date of birth of the plaintiff was 20.3.1960 as reflected in the School Admission Register, Ext.A and the suit

was filed on 30.7.1981, three years after attaining majority, the court below should have dismissed the suit for declaration that the sale deed was void,

being barred by limitation ?

Whether in view of the admitted case of the plaintiff that he was not the adopted son of Akrua Patel and the admitted fact that the disputed

property had been purchased in the name of respondent no.2 and the adopted son of Akrua Patel, the lower appellate court should have held that the

respondents 2 and 3 were the real owners and Hira Patel, the minor, described as the adopted son of Akrura Patel was merely a name lender ?â€​

Mr.Buddhiram Das, learned Advocate on behalf of Mr.N.C.Pati, learned Advocate for the appellant submitted that plaintiff and defendant no.2 had

purchased the suit land by means of a registered sale deed, Ext.2. Defendant nos.2 and 3 alienated A0.05 dec. of land out of Ac.0.55 dec. to

defendant no.1 by means of a registered sale deed, Ext.B. Â The defendant nos.2 and 3 have half share over the suit property. Thus, they have right

to alienate the property, which is less than their share.

Per contra, Mr.Pranay Swain, learned Advocate on behalf of Mr.N.K.Sahu, learned Advocate for the respondents submitted that the suit property

was not partitioned. The plaintiff was a minor at the time of execution of the sale deed by defendant nos. 2 and 3 in favour of defendant no.1. No

permission was obtained from the competent authority under Section 8(2) of the Act, 1956. Alienation was not for the benefit of the minor. The sale

deed is void.

Admittedly, the plaintiff and defendant no.2 had purchased Ac.0.55 dec. of land by means of a registered sale deed, Ext.2. The defendant nos.2 and

3 alienated Ac.0.05 dec. of land out of Ac.0.55 dec. to defendant no.1, which is less than their share. The plaintiff and defendant no.2 have ½

shares each in the entire suit property. Thus, the finding of the learned lower appellate court is perverse.

The next question arises for consideration as to whether the suit schedule property can be partitioned in absence of any prayer ? The subject of

matter of dispute is no res integra. The apex Court in the case of Firm Srinivas Ram Kumar vs. Mahabir Prasad, AIR 1951 SC 177 held thus:

The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis.

The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the

other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only

admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there

would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the

defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when

they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may

not be proper to drive the plaintiff to a separate suit. The same view has taken in Khali Pnaigrahi v. Kamala Devi, AIR 1967 Ori.100.

As held above, the plaintiff has ½ share in the entire property. The defendant no.1 is a bona fide purchaser for value. He is in possession of the

property. Instead of driving the parties to another suit for partition, to give quietus to the issue, it would be just and proper to pass a preliminary decree

for partition and separate possession of ½ interest in the plaintiff. The same will not cause any prejudice to any party. The decree passed by the

court below is modified as follows:

The entire suit schedule land is to be divided ½ each between the plaintiff and defendant no.2. The land purchased by defendant no.1 shall be carved

out from ½ share of defendant no.2 and allotted to him. Accordingly, a preliminary decree for partition is made between the plaintiff and defendant

no.2 as aforesaid. Learned trial court shall appoint a Commissioner to effect partition by metes and bounds of the suit land. The substantial questions

of law are answered accordingly.

In the result, the appeal succeeds and is allowed to the extent indicated above. The plaintiff’s suit is decreed in part. No costs.