Fakir Khan vs Kuanr Khan and Others

G.B. Patnaik, J.—Defendant in the appellant against the final decree in a suit for partition. Defendant is the brother of the plaintiff. Their

father deceased Najib Khan was the owner of plot No. 952 Khata No. 1297, touzi No. 2616 situated at Dawan Bazar in the town of Cuttack

measuring Ac, O. 86 decimals. Admittedly, plaintiff has 1/3rd interest and defendant has 2/3rd interest. Najib Khan died in 1932. The parties were

continuing in joint possession, though plaintiff was keeping a different portion and defendant was keeping a different portion. The defendant

however got the property mutated in his name in the revenue records. Plaintiff filed an application before the Tahasildar for correction of the same

and that was allowed in respect of her 1/3rd share on 17-9-70. On an appeal being carried, the S. D.O. reversed the order dated 17-9-70 of the

Tahsildar vide his order dated 16-5-71. Therefore the plaintiff filed the suit claiming l/3rd interest in the suit properties.

The defendant took the stand in the written statement that the plaintiff had relinquished her share by taking some money and the defendant had

constructed his house with the full knowledge of the plaintiff on the disputed land. It was also averred that the plaintiff was never in possession of

the disputed property and the Khasmal authorities granted lease in favour of the defendant after due enquiry and consequently the defendant had

become the absolute owner of the property. The learned trial Judge on appreciation of the evidence before him, disbelieved the"" story of

relinquishment of share by the plaintiff as well as receipt of money from the defendant. It was found that there being no registered document relating

to relinquishment as required u/s 17 of the Registration Act, there had been no proof of such relinquisliment. It was also observed that the

defendant had no right of preemption. On these findings, a preliminary decree was passed declaring the plaintiffs 1/3rd interest in the suit

properties. It was further directed that the portion on which the plaintiff''s residential house situated should be allotted to her. The defendant

assailed the judgment and decree in appeal which was registered as First Appeal No. 16 of 1973 but that was dismissed by the High Court on 12-

12-76, Thereafter, the plaintiff filed an application for drawing up of the final decree. In course of the final decree proceeding, the original plaintiff

having died, her legal heirs were substituted. A Civil Court Commissioner was deputed to effect the partition and the said Civil Court

Commissioner submitted his report stating therein that on actual measurement it was found that the defendant had encroached upon Ac. 0.007

decimals of land belonging to the plaintiff and therefore the plaintiff was in actual possession of only. A.O. 21 dec. 3 Kadis; whereas the defendant

was in possession of Ac.O. 34 dec. 3 Kadis. This report was dated 1-1-80. No objection to the said report having been filed, on perusing the

said report, the learned trial Judge accepted the same and made the decree final by order dated 31-3-80. It is against this final decree, the present

appeal has been preferred.

Along with the appeal, an application has been filed in this Court by the appellant purporting to be under Sections 2 and 3 of the Partition Act

with the prayer that the appellant may be permitted to purchase Ac. 0.007 dec. of land on which the wall of the residential building stands.

In course of hearing of this appeal, the learned Counsel for the appellant raised the only contention that the defendant having already constructed

his residential building over Ac. 0.007 decimals of land which comes under the plaintiffs share and allowing the plaintiff to possess the said Ac.

0.007 decimals of land would have the effect of demolition of the building of the defendant that stands on the said land, the principle of ''owelty''

should be applied and the plaintiff should be awarded due compensation rather than Ac. 0.007 decimals which has been in possession of the

defendant for the last several years. Mr. Misra appearing for the plaintiffs-respondent, on the other hand, contended that the plaintiff is entitled to

her share in the joint family property and the defendant not having filed any objection to the Commissioner''s report and not having made the

application u/s 2 of the Partition Act at the appropriate time, this Court should not interfere with the final decree. In view of the rival submissions of

the parties, the only question that falls for determination is, whether in the facts and circumstances of the present case, the defendant can be

permitted to purchase Ac. 0.007 decimals of land belonging to the plaintiff and the plaintiff can be duly compensated for the same.

There is no dispute that out of the joint family property, the plaintiff is entitled to Ac. 0.28 decimals and 7 kadis whereas on being measured at

the spot, it was found by the Commissioner that she was in possession of Ac. 0.21 dec. 7 kadis and thereby she had to get Ac. 0.007 dec. from

the defendant. The Commissioner''s report further indicated that over the said Ac. 0.007 decimals of land the defendant had constructed a house

and was in possession of the same. The plaintiff''s residential house stands on Ac. 0.21 dec. 7 kadis was in her possession. The assertion of the

defendant in his application under Sec. 2 of the Partition Act in this Court to the effect that the northern wall of his building stands on the disputed

land i.e. Ac. 0.007 decs, and if the land was to be carved out, then the entire ancestral building of the defendant will collapse which stands there

for the last several decades has not been controverted by the plaintiff. This assertion, on the other hand, is corroborated by the report of the

Commissioner dated 1-1-80 which has been accepted without any objection. In the premises as aforesaid, it is necessary to find out whether

equitable relief as enshrined in Sec. 2 of the Partition Act can be granted to the defendant by applying the principle of ''owelty''.

It is, no doubt, true as contended by Mr. Misra for the respondents that the defendant-appellant should have made this application u/s 2 of the

Partition Act earlier in the court below, but at the same time, merely because it has not been made in the court below and has been made in the

appellate Court, it cannot be said that the appellate Court cannot consider the relief sought for. The principle underlying Section 2 of the Partition

Act is that a partition cannot be allowed if by such partition the intrinsic value of the property sought to be partitioned would be destroyed. In such

a case, money-compensation should be given in lieu of the share to which a shareholder may be entitled. It has been held in several cases that if no

partition can be made without destroying the intrinsic value, then a money compensation should be given instead of the share which would fall to

the plaintiff by partition. Where one of the co-sharers builds a house on a portion of the joint family land for his own use, the said co-sharer cannot

be held to be a trespasser and the other co-sharer when seeing the erection of the house stands by and makes no objection, the Court will

presume his acquiescence to the erection of the building and will certainly not order demolition of the building which stands on the joint land unless

it comes to the conclusion that injury would accrue to the co-sharer-plaintiff and also before the building was started objection was taken to its

construction. In such a case, it would be more appropriate to fix a reasonable price for the land in dispute and the party in possession of the excess

land should be asked to compensate the plaintiff in money to the extent of his share. This view has been expressed by the Patna High Court in the

case of Gopal Ram and Others Vs. Ram Prasad and Others, . In effecting the partition where a Court is confronted with a situation that an item of

property is not capable of physical partition and if divided it will loss its intrinsic worth, in such a case, that item can be allotted to one and

compensation in money can be given to the other. The Court adopts this method in making equitable partition of the joint property in exercise of its

own discretion. It would be impossible for a Court to effectuate a partition on an equitable basis, if it should be held that it is under a legal

obligation to divide every item of the joint property in specie. Bearing in mind the aforesaid principle of equitable partition and applying the same to

the facts and circumstances proved and found in the present case, I am of the considered opinion that this is a fit case where the principle of

''owelty'' should be applied and the plaintiff should be paid due compensation in respect of Ac. 0.007 decimals of land out of the joint family

property which falls to their share and is in possession of the defendant over which the defendant has constructed a building to the knowledge of

the plaintiff and is staying thereon with his family members. The approximate valuation of the said land has been made by the Commissioner at Rs.

1221/- but that valuation can hardly be accepted to be the due compensation for the plaintiff. Taking into consideration the present valuation of the

land in the town of Cuttack and the locality in which the land situates, I am of the opinion that a sum of Rs. 10,000/- (rupees ten thousand) would

be the due compensation for the land in question. I would, accordingly, direct that the plaintiff would be entitled to Rs. 10,000/-(rupees ten

thousand) in respect of Ac. 0.007 dec. of land and the said sum of Rs. 10,000/- may be paid to the plaintiff by the defendant within two months

from today, failing which it would be open for the plaintiff to execute the decree and take possession of the land in question. The decree is modified

to the aforesaid extent. The first appeal is allowed and there would be no order as to costs.