Damodar Naik vs Bidyadhar Naik

D.M. Patnaik, J.—The sole Defendant Damodar Naik has filed the present appeal against the reversion judgment of the lower appellate Court, allowing the Plaintiff''s suit for partition. He having died during the pendency of the appeal, his heirs have been substituted.

Plaintiff''s case is: Jaikrishna the common ancestor had three sons, Bala, Ratna and Cheru, of whom Ratna died issueless. The disputed land measuring Ac. 10.9 decimals under Khata No. 21 of village Ratanpur stood recorded in the 1945 settlement in the names of Plaintiff and Defendants. This being the joint family property there was no partition by metes and bounds though they were living separately and possessing their respective lands by amicable arrangement. Plaintiff claims that though he demanded for a partition by metes and bounds Defendant did not pay any heed and hence the suit.

Defendant filed written statement wherein he admitted the genealogy but took plea of previous partition and in para-8 of the written statement stated that father of the Plaintiff Bala in such previous partition was given the entire family landed properties Ac. 35.84 decimals of land situates in village Birapratappur, whereas Ratna and Cheru were given Ac. 20.98 decimals of land in village Ratanpur. Therefore, the Plaintiff had no right, title and interest over the schedule property because of the previous partition. It was further pleaded that Ratna having alienated his Ac. 10 acres of land, the remaining Ac. 10.98 decimals of land exclusively belong to the Defendant in which the Plaintiff had no right.

The lower Court framed the following issues:

(1) Is the suit maintainable?

(2) Is there any cause of action to bring the suit?

(3) Is the suit bad for non-joinder of the parties?

(4) Whether Ratna and Cheru were partitioned during their life time?

(5) Whether Bala was exclusively allotted and possessing the lands other than the suit land?

(6) Whether the Plaintiff secretly recorded his name jointly in the suit land during the current settlement operation?

(7) Is the Plaintiff entitled to any relief?

The lower Court held that the Defendant shave been able to prove previous partition and therefore dismissed the suit. The lower appellate Court reversed the finding of the lower Court and that the Defendant failed to prove previous partition.

The appeal was admitted for decision of two substantial questions of law: that is (i) Whether the lower appellate Court was correct in reversing the finding of the lower Court by holding that there was no previous partition, admittedly when the partition claimed being an old partition for which no evidence could be available; (2) Whether the lower appellate Court erred in law in holding that there was no evidence to hold that the properties under Ext. B are the ancestral properties of the parties on the face of evidence on record.

Mr. B.M. Patnaik, learned Counsel for the Defendant-Appellant strenuously urged that while the, lower Court gave a finding that previous partition to have been proved after discussing evidence of the witnesses of the Plaintiff, considering the R.O.R. of the year 1930 and rent paid by the Defendant in respect of the lands in question and disbelieved possession of the Plaintiff in respect of any land of village Ratanpur, the lower appellate Court, according to Mr. Patnaik, did not consider these aspects and reversed the finding with reasons which could be said to be wholly unacceptable. Mr. P.V. Ramdas, learned Counsel for the Plaintiff, on the other hand, supported the judgment of the lower appellate Court and drew attention of this Court to the decision of the Apex Court reported in Ramanuja Naidu Vs. V. Kanniah Naidu and anothers, to upheld the contention that in a case of second appeal scope for appreciation of evidence is limited.

I have gone through the judgments of the Courts below, documents exhibited in this case. The Plaintiff came forward with a case that there was no previous partition. Trial Court framed issues with regard to previous partition. The lower appellate Court dealt with the matter. Admittedly, no direct evidence has been laid with regard to previous partition since it is the case of the Defendant that the partition took place sometime long before, that is before 1930 when Cheru and Ratna were recorded jointly in the R.O.R., of that year. Obviously, no evidence could have been available for the previous partition. Therefore, question arises whether from the materials on record an inference of previous partition should have been drawn by the lower appellate Court.

One of the circumstances in support of previous partition pleaded in the separate recording in respect of lands in two villages. When the Plaintiff has been recorded in respect of Ac. 35.84 decimals of land in village Birapratappur, admittedly Cheru and Ratna have been recorded in respect of Ac. 20.98 decimals of land in village Ratanpur in R.O.R. 1930. It is submitted by Mr. Patnaik that because of its previous partition the parties have been in possession of their respective lands separately in different villages. To this Mr. Ramdas, learned Counsel for the Plaintiff has strenuously urged that the finding of the lower Court that there is no evidence that, the lands situate in Birapratappur is ancestral land should not be disturbed in the second appeal.

I am unable to accept the contention of Mr. Ramdas that in the present case finding of the lower appellate Court that the properties situated in Birapratappur is not the ancestral property cannot be disturbed. It is well settled that such a finding of fact can be reversed if the Court has drawn a total wrong conclusion on the basis of materials available. In this connection, I may point out that Ext. B is the R.O.R. in respect of Ac. 35.84 decimals of land which stand alone in the name of Bala, father of the Plaintiff. These lands are not bhogara lands as claimed by the Plaintiff, but on examination it found to be stitiban lands. When the Plaintiff was put question in the cross-examination he expressed absence of knowledge with regard to this property and gave an explanation that the lands in Birapratappur were bhogara lands and such an explanation is found to be rather false on the basis of documentary evidence itself. That apart, there is also admission of the Plaintiff that Jaikrishna was the common ancestor of all these lands. Therefore, I accept the contention of Mr. Patnaik that the lands under Ext. B were the joint properties of the family and fell to the share of Bala on previous partition. I also accept the contention of Mr. Patnaik that these lands having been recorded in the R.O.R. of 1930, there is a strong presumption of partition by metes and bounds in the family. The finding of the learned lower appellate Court is therefore reversed.

With a view to prove jointness of possession with the Defendant, the Plaintiff came forward with a case that he was possessing two acres of land of village Ratanpur, though on the other hand, Defendant''s case is that he has been in exclusive possession of land sin village Ratanpur and the Plaintiff did not possess anything. This plea of joint possession by the Plaintiff has been disbelieved by the lower Court after analysing evidence of witnesses which the Court found to be discrepant when compared with each other. While giving the reasons for disbelieving the possession of the land at Ratanpur by the Plaintiff, the lower Court found that the Plaintiff was keeping his plough in her sister''s village at a distant of 14 to 15 miles away and so his possession of land in village Ratanpur was not believable. It was incumbent on the part of the lower appellate Court to reverse this finding only after giving reasons thereof, but this has not been done.

Defendant proved several rent receipts showing payment of land revenues in respect of Ratanpur lands from the year 1952 onwards, whereas Plaintiff proved only one rent receipt of the year 1973. The lower appellate Court committed error by holding that both paid rents and therefore drew conclusion that there was no previous partition. This is wholly incorrect. Needless to point out that payment of land revenues for a considerable length of time certainly is one of the factors to judge possession of the person, though the same cannot be made the sole basis for such a finding with regard to possession. Payment of rent receipts coupled with other circumstances mentioned above positively proved previous partition between the parties.

The lower appellate Court held that though Defendant pleaded previous partition, yet did not gave specific year of partition and that no documents of previous partition has been proved.

Defendant proved Ext. 1, that is R.O.R. of the year 1930 which recorded name of Cheru and Ratna jointly and Bal''s name was not mentioned herein. Land under Ext. 1 is admittedly joint family property. The fact that Bala''s name did not find place as a joint owner, this prima facie proved of previous partition. Therefore, it would have been appropriate to six time and year of previous partition sometime before 1930. Further, in case of such partition it is too much to expect direct oral evidence after such long lapse of time. The lower appellate Court did not try to analyse the case in the light of the settled proposition of law that if no direct evidence is available with regard to partition which took place more than 50 years back, an inference of previous partition could be legitimately be drawn from other materials on record. This finding having not been done as found by me in the foregoing paragraphs, judgment of the lower appellate Court is liable to be set aside.

In the result, appeal is allowed. Judgment of the lower appellate Court is set aside and that of lower Court is upheld. Parties to bear their own costs.