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Judgment
317 paragraphs · 7,455 wordsBiswanath Rath, J
This Appeal involves a challenge to the judgment and decree dated 7.10.2009 and 14.10.2009 respectively passed in R.F.A. No.3/2010 of 2008-04
thereby dismissing the Appeal of the plaintiff and confirming the judgment and decree dated 9.12.2003 and 28.12.2003 respectively passed in T.S.
No.427/1994, a suit for partition. Plaintiff is the appellant in this Second Appeal and the defendants are the respondents herein against a confirming
judgment.
Facts involving the case, as revealed from the submission and the materials available on record, are that the appellant-plaintiff filed T.S.
No.427/1994-I claiming to pass a decree in favour of the plaintiff for partition of Schedule-A land by declaring the right, title, interest and possession of
the plaintiff to the extent of Ac.0.04½ decs. and further after the preliminary decree is passed to make the same final by deputing a Survey
Knowing Commissioner from his Court and to allot Ac.0.04½ decs. of land to the plaintiff out the Schedule-A land under a separate allotment sheet
by giving due delivery of possession to the plaintiff in accordance with law. The appellant-plaintiff also prayed for decree for cost of the suit and such
other relief as may be deemed fit and proper.
Attempting to make out a case in his favour, the appellant-plaintiff contended that the Schedule-A land relates to M.S. Plot No.177 with an area
Ac.0.290 decs., M.S.Plot No.178 with an area Ac.0.210 decs., M.S.Plot No.179 with an area Ac.0.124 decs. and M.S.Plot No.181 with an area
Ac.0.430 decs. and thus making a total area Ac.1.054 decs. under M.S.Khata No.133 of Mouza-Bhaskarganj under P.S.-Balasore Town in the
district of Balasore, which corresponds to a portion of the C.S.Plot No.533 with an area Ac.3.21 decs. under C.S.Khata No.228 of Mouza-
Srikanthapur under the same P.S. It is further contended that so far the land under C.S. Plot No.533 is concerned, it originally belonged to Manmath
Nath Deb and Manoranjan Deb, who were the then ex-intermediaries. Manmath Nath Deb died leaving his son Nanda Dulal Deb and while Nanda
Dulal and Manoranjan Deb were in joint possession in respect of the land under C.S. Pot No.533 under registered deed of partition bearing No.8430
dated 20.7.59, the present suit land along with some other undisputed land fell to the share of Nanda Dulal Deb. Nanda Dulal also during his life time
sold some portion out of the land allotted to him under C.S. Plot No.533 to different persons including some of the defendants in the suit and Nanda
Dulal died leaving some portion out of the allotted land from out of C.S. Plot No.533. However in respect of the left out portion out of the C.S. Plot
No.533 along with in respect of some undisputed land after the death of Nanda Dulal, there was again a partition amongst the son (defendant no.1),
his wife and his daughters (defendant no.2), which was materialized under the registered deed of partition dated 20.12.69. It is pleaded that in view of
the partition in the year 1969, the plaintiff was also allotted with some portion out of C.S. Plot No.533. It is further pleaded that Prithinath Deb,
defendant no.1 in the suit while in peaceful possession of the land under C.S. Plot No.533 allotted to him by virtue of partition deed dated 10.12.69, he
in order to meet his pressing need for money sold Ac.0.04 ½ decs., as described in Schedule-B of the plaint out of C.S. Plot No.533, i.e., Schedule-
A land for consideration of Rs.9000/- under registered deed bearing No.1077 dated 2.3.83, consequently, defendant no.1 duly delivered the possession
of the said land to the plaintiff and the plaintiff possessed the suit Schedule-B land peacefully, openly and without any interruption whatsoever and
further with direct knowledge of the defendants. It is further pleaded that at the time of purchase of the suit land, M.S. operation was going on and
thus the plaintiff could not get it mutated in the Tahasil Office but however he took necessary steps in the Settlement Office for recording the
Schedule-B land in his favour separately. The M.S. operation publication was finally made on 16th December, 1986 involving both Schedules-A & B
land. When it was learnt by the plaintiff that the Schedule-B land along with some other land from out of Schedule-A land has been recorded jointly in
the name of his venders as well as others, the plaintiff since a Bank Employee and used to reside in his place of service away from Balasore, it was
not practicable for him to come down frequently to court premises for the purpose of necessary preparation for recording the Schedule-B land in his
name but however he was in peaceful possession of the Schedule-B land all through. The plaintiff further pleaded that defendant nos.1 to 18 are
shrewd and turbulent persons. Thus taking advantage of illegal recording of the disputed land jointly in the last M.S. operation on 2.10.1994, they
threatened the plaintiff to disposes him from lawful possession over Schedule-B land. Finding the attitude of the defendants involving both the Major
Settlement and for the creation of cloud over title of the plaintiff in spite of his separate and peaceful possession, the plaintiff with a view to have a
permanent solution of the problem requested all the defendants to have partition by metes and bounds on number of times but finding the defendants
not responding to his request to have a mutual arrangement finally turned down the request of the plaintiff on 5.10.94. It is claimed that the plaintiff
having no other remedy available to sell his title over the land was constrained to file the suit with the prayer indicated herein above.
The suit was registered as T.S. No.427/1994-I. Being noticed, defendant nos.11 to 14 initially filed a written statement again on being allowed also
filed amended written statement. These defendants while claiming that the plaintiff has no cause of action to file the suit against them also claimed
that the suit as laid is not maintainable, further also bad for non-joinder of necessary parties on the premises that after the death of late Bankim
Chandra Samal, his property was devolved upon defendant nos.11 to 14 and three daughters involved therein and these three daughters being not
made parties to the suit making the suit liable to be dismissed for non-joinder of proper party. These defendants also contested the claim of the plaintiff
on the premises that the plaintiff has not mentioned in which portion of the C.S. Plot No.533 he was in possession for the delivery of possession even
by the vendor, Prithinath Deb. The defendants also denied the claim of the plaintiff that defendant no.1 was in peaceful possession of the land under
C.S. Plot No.533 by virtue of the partition dated 20.12.1969 including the disputed area. These defendants also disputed the claim of the plaintiff with
regard to delivery of possession of area, if any, by defendant no.1 to the plaintiff. They also disputed the claim of the plaintiff to have any attempt for
recording the disputed land in his favour during Major Settlement operation, on the other hand the land over which the plaintiff claims, which was
purchased by him from defendant no.1, was already sold under a previous registered sale deed dated 6.8.69 by the father of defendant no.1 even prior
to partition dated 20.12.69. These defendants also disputed the claim of plaintiff on possession over the disputed property and on the other hand
claimed that there is never any delivery of possession involving the suit land taking place rather the entire land involving Schedule-A of the plaint
measuring Ac.1.054 decs. is being possessed by these defendants. The defendants also disputed the claim of the plaintiff that he was residing outside
Balasore for his service need rather claimed that the plaintiff was almost a permanent resident of Balasore Town. The defendants also claimed the
averments by the plaintiff in paragraph-6 that these defendants are turbulent persons and that there was a request for mutual partition and that such
request has been turned down by any of the defendants. They also denied to have given any threat to the plaintiff as claimed by the plaintiff. These
defendants on the other hand put forth a case that defendant no.1 being a shrewd and troublesome person has executed the sale deed with collusive
intention and this was not within the knowledge of these defendants. These defendants also submitted that in the event there is any fraud played by
defendant no.1, nothing prevented the plaintiff for recovery of the consideration money involved therein taking appropriate steps. Similarly while
denying the averment made in paragraph-7 of the plaint, these defendants claimed that although in the Major Settlement operation the land was
recorded jointly in the name of late Bankim Chandra Samal, the father of defendant nos.11 to 13 and husband of defendant no.14, defendant nos.1 to
10 and Sadhu Charan Jena. They alleged that the plaintiff with ill motive attempted to snatch away favourable order. It is in the premises of correct
recording in Major Settlement and their long undisputed possession over the disputed property, for no step taken by the plaintiff at any stage of the
matter to correct the R.O.R. and for amalgamation of the properties by these defendants after death of Bankim Charan Samal, the actual owner of
the property, the claim made by the plaintiff remains imaginary. These defendants also claimed to be paying rent to the State and thus denied that the
plaintiff has any manner of title and possession over the suit land. Defendant nos.15 & 16 filing a separate written statement while claiming that there
is no cause of action involving the suit and the suit is not maintainable involving raising a question of suit suffering for mis-joinder of parties so far
defendant no.16 is concerned, brought to the notice of the Court that defendant no.16 since a purchaser in respect of Ac.0.03 decs. from out of
Schedule-A land in the meantime, he has even sold the same to one Manmath Behera son of Late Jayakrushna Behera. While not disputing the plaint
averment in paragraph-3, these defendants rather claimed that the submission made therein is beyond the knowledge of these defendants and asked
the plaintiff to strictly prove the same. They have submitted that it is a fact that under registered deed of partition dated 20.7.59 the suit land was
allotted to Nanda Dulal Deb and during life time of Nanda Dulal, he had transferred some portion of the land and remained in possession of the
balance land and that there was a subsequent partition amongst his legal heirs. They claimed that the balance portion of the suit land was allotted to
defendant no.1. These defendants did not dispute the claim made in paragraphs-4 & 5 and admitted that the disputed land was jointly recorded without
involving the plaintiff in the Major Settlement operation. These defendants have admitted the plaint averments in paragraphs-7, 8 & 9. They however
disclosed that they have no objection for partition involved, if any. Defendant nos.20 to 23 similarly filing a separate written statement while attacking
the suit on the ground of no cause of action and that the suit is not maintainable also contended that the allegation so far as defendant nos. 20 to 23
made is also false. These defendants also disputed the claim of the plaintiff that he is in possession of the suit land. These defendants also challenged
the maintainability of the suit on the premises of non-inclusion of entire properties and also non-joinder of parties, i.e., the purchasers in the meantime.
They however disclosed that during life time Nanda Dulal remaining in possession of the land executed registered sale deed nos.2869 dated 26.5.83,
2866 dated 26.5.83, 2867 dated 26.5.83 and 89 dated 6.1.95 in respect of Ac.0.05 decs. in respect of Ac.0.05 decimals, Ac.0.7 decs. and Ac.0.03
decs. making a total area of Ac.0.20 decs. in favour of defendant nos.20 to 23 and that they are in peaceful possession of the property sold in their
favour. Defendant nos.24 & 25 while filing independent written statement while disputing the maintainability of the suit on the premises of no cause of
action, being based on false and imaginary facts also challenged the suit Schedule-A property involving Major Settlement Plot Nos.177, 179, 178, 180
& 181 in Major Settlement Khata No.133. These defendants also claimed that the suit is bad for non-joinder of party claiming that while Nanda Dulal
Deb was in possession, he has sold Ac.0.07 decs. and Ac.0.05 decs. respectively in favour of defendant nos.24 & 25 in the year 1983 and that they
are in peaceful possession of the said land. Defendant no.1 similarly filing an independent written statement while supporting the case of the plaintiff
submitted that the plaintiff has the cause of action to file the suit for partition involving a joint recording of the suit land. In course of Major Settlement
operation and for creation of a cloud on the title of the plaintiff in respect of the suit land being purchased from defendant no.1, while claiming that the
description of the suit land was correct, these defendants submitted that the land under C.S. Plot No.533 originally belonged to both Manmath Deb and
Manoranjan Deb and Manmath Deb died leaving behind his son, Nanda Dulal Deb. He also pleaded that during life time of Manoranjan Deb and
Nanda Dulal, they had sold away some portion of the suit land to different persons and the remaining portion of C.S. Plot No.533 along with some
other undisputed properties belong to the joint family. Defendant no.1 contended that there was a partition effected vide registered partition deed
no.8430 dated 20.7.59 and in the said partition, the suit land fell to the share of Nanda Dulal Deb. Nanda Dulal died leaving behind defendant nos.1 &
2, the son and daughter and also his wife, Nandarani, who died in the year 1982. For involvement of a family arrangement, this defendant became the
absolute owner in possession in respect of the left out portion by Nanda Dulal in respect of Schedule-A property. Accordingly, defendant no.1 was in
possession of the disputed property. While not disputing the allegation made in paragraph-4 of the plaint, defendant no.1 admitted the fact of sale of
the disputed Schedule-B land by him, vide sale deed bearing no.1077 dated 2.3.1983 and also the fact of delivery of possession of the land to the
plaintiff. This defendant while not disputing the averment made in paragraph-5 of the plaint and partly disputing the plaint averment in paragraph-6
submitted that it is false on the part of the plaintiff to claim that defendant no.1 was a shrewd and turbulent person. Defendant no.1 also claimed that
he had not threatened the plaintiff on 2.10.94 to dispossess him from his lawful possession of the disputed land. So far as joint recording in the Major
Settlement and the request for partition are concerned, this defendant while admitting both the claim submitted that this defendant has never turned
down the request of the plaintiff for partition. This defendant while claiming that he was in valid right, title, interest and possession involving the
disputed property has rightly sold the same to the plaintiff and claimed that to avoid any future conflict and for convenience of the parties, he has no
objection in the event the Schedule-A property is partitioned and the area of the plaintiff is identified and delivered with the possession.
The plaintiff in order to establish his case examined P.Ws.1 to 4 and exhibited documents, vide Exts.1 to 11 whereas defendant
nos.11 to 14 while examining themselves as D.Ws.1 to 4. Defendant nos.20 to 25 examined D.Ws.1 to 3. On behalf of the Court also one witness
was examined as C.W.1.
Similarly defendant nos.11 to 14 while exhibiting Exts.A to S/3, defendant nos.20 to 25 exhibited Exts.A-1 to F-1/4, defendant no.1 also exhibited
Exts.B-1/a-II to P-I/a-II.
Trial court entering into trial framed the issues as follows :-
“ISSUES
Is there any cause of action ?
Is the suit maintainable ?
Is the suit bad for mis-joinder of parties ?
Is the suit land liable for partition ?
Is the plaintiff entitled to an extent of Ac.0.04½ decs. of land out of the suit schedule ‘A’ property ?
If the plaintiff has any right, title and interest over the said Ac.0.04½ decs. of land ?
Is the suit bad for the non-inclusion of entire properties into hotch-potch ?
Are the defendant nos.22 and 23 in possession of their purchased land ?
To what relief ?â€
Considering the materials available on record, pleading of the parties, getting into answer all the issues indicated herein above, while recording that no
argument was advanced on issue nos.3 & 7 finally decided the remaining issues against the plaintiff particularly observing that defendant no.1 sold the
disputed land without having title over the same and further on issue no.8, it held that the suit land was also in possession of defendant nos.11 to 14.
Trial court finally holding that there is no case made out for partition dismissed the suit by his judgment dated 9.12.2003 and consequently also passed
a decree on dismissal of the suit on 28.12.2003.
On Appeal by the plaintiff-appellant herein, the Appeal was registered as R.F.A.No.3/10 of 2008/2004. The appellate court entering into the
materials available on record and the pleading of the parties as well as the submissions before that court further taking into account the issues framed
by the trial court, while confirming each of the findings of the trial court dismissed the Appeal on contest by judgment dated 7.10.2009, consequently a
decree involving R.F.A. No.3/10 of 2008/2004 was also drawn on 14.10.2009.
Being aggrieved by the judgments and decrees involved herein, the plaintiff-appellant filed the present R.S.A. No.18/2010 in this Court seeking
declaration of both the judgments and decrees involved herein and decreeing the suit thereby. This Court entertaining the Second Appeal admitted the
Appeal on the following substantial questions of law :-
“(a) Whether the partition in the family of the plaintiff’s vendor of the year 1959 (Vide Ext.5) allotting the plot in question (No.533) to the father of the
plaintiff’s vendor has not been challenged, whether the courts below are correct in assuming that the plaintiff’s vendor had no saleable title merely because in
the subsequent partition among the vendor and his other co-sharers of the year 1969 (Ext.K) the suit plot has not been included ?
(b) Whether the courts below are correct in discarding the certified copy of the plaintiff’s sale deed (Ext.1) on the ground that the conditions for secondary
evidence have not been made out, when genuineness of the sale deed is not disputed ?â€
Advancing his submission, Sri D.P.Mohanty, learned counsel for the plaintiff-appellant while reiterating the plaintiff’s claim in the
plaint, on reading of the same along with evidence from the side of the plaintiff as well as defendants and taking into account the issues framed therein
particularly on the question whether the vendor of the plaintiff, i.e. defendant no.1 had any title over the land transferred to the plaintiff through Ext.1
as the suit outcome was much depending on this particular issue, trial court negativing this issue and taking this Court to the observation of the trial
court that Ext.K, the deed of registered partition of the year 1969 did not reveal if the vendor of the plaintiff, Prithinath, defendant no.1 got any portion
of C.S. Plot No.533, Sri Mohanty contended that though this observation found to be correct partially but the trial court erred in coming to final
conclusion in arriving a wrong conclusion as available in paragraph-15 of the judgment that the C.S. Plot No.533 was not allotted in favour of the
vendor of the plaintiff and it still remained with the ownership of the plaintiff’s vendor, plaintiff’s vendor’s mother and plaintiff’s
vendor’s sister. For this observation of the trial court, Sri D.P.Mohanty, learned counsel for the plaintiff-appellant thus contended that the trial
court erred in holding that since defendant no.1was not having exclusive title over the property in question and as such defendant no.1 had no authority
to sell the disputed land extending Ac.0.04 ½ decs. of land in favour of the plaintiff and thus rendering the sale invalid as the plaintiff cannot derive
any title out of such sale deed. On the alternative plea of prescription of title by long possession of the plaintiff in respect of the suit Schedule-B
property, in paragraph-16 of the judgment the trial court observing that no relief can be granted in favour of the plaintiff becomes bad, as the plaintiff
failed to prove his title, Sri Mohanty contended that this finding of the trial court also remained erroneous. Sri Mohanty also urged that the trial court
holding the prayer for partition not maintainable is also wrong. Sri Mohanty, learned counsel for the plaintiff-appellant also contended that for the
erroneous decision on issue nos.5 & 6 by the trial court, all other issues automatically failed. Referring to the discussions on issue no.9 in paragraph-22
of the judgment and the observation of the trial court that defendant nos.11 to 14 having also failed to prove their title and possession in respect of any
part of C.S.Plot No.533, Sri Mohanty, learned counsel for the plaintiff-appellant contended that for the above conclusion of the trial court the
plaintiff’s claim ought to have been allowed. Similarly taking to the findings of the lower appellate court, Sri Mohanty submitted that the lower
appellate court while concurring with the findings of the trial court in paragraph-16 of the judgment came to the conclusion that the certified copy of
the registered sale deed cannot be held as sufficient proof of sale transaction without bringing the vendor to the Witness Box for the same purpose.
Again in paragraph-20 of the judgment, the lower appellate court erroneously came to the conclusion that no cross-objection having been filed by the
contesting defendants, there was no need to interfere with the findings of the trial court. Sri Mohanty thus contended that ultimately the view of the
lower appellate court remaining contrary to the above, the judgment and decree of the appellate court become bad. Sri Mohanty, learned counsel for
the plaintiff-appellant finally submitted that for the above findings arrived at by both the trial court as well as the appellate court, both the judgments
and decrees involved herein remain bad and unless interfered with and set aside, the impugned judgments and decrees will create bad law. To support
his case, Sri Mohanty also relied upon two decisions in Ramdas vrs. Sitabai & others reported in AIR 2009 SC 2735 and Manoj Kumar Nayak &
another vrs. Guna Mohanty & others reported in 116 (2013) CLT 209 particularly resting on the law of the land that the purchaser of a joint property
is entitled to the extent of the share of land can be drawn by drawing a decree of partition and further resting on the settled position of law on the
transfer by one of the co-sharers remained valid to the extent of the share of the transferor and the co-owner can transfer his undivided interest on a
joint property and the transferee acquires right to enforce the sale has the support through the above judgments.
Sri S.K.Dash, learned counsel being assisted by Sri Sahu, learned counsel for the contesting respondent nos.15 to 18 on reiteration of the stand of
the contesting defendant nos.11 to 14 and the contesting respondents in both the courts below contended that the claim of the plaintiff-appellant that he
had purchased the disputed land from out of C.S.Plot No.533, on the basis of which he has brought the suit for partition, for the courts below coming
to the concurrent finding of fact that the vendor of the appellant did not have any subsisting title to convey the prayer for partition does not arise.
Taking support through a decision of the Hon’ble apex Court in Union of India vrs. Ibrahim Uddin & another reported in (2012) 4 SCC (Civ) 362,
Sri S.K.Dash, learned counsel for the contesting respondents taking this Court to paragraphs-50, 51, 52, 53 & 54 of the said decision submitted that
there is no survival of any substantial question of law to be decided involving the Second Appeal. Sri Dash, however, contended that the plaintiff-
appellant while seeking partition included land out of Major Settlement plots having total area of Ac.1.054 decs., which even though was supported by
defendant no.1, the vendor but was vehemently resisted by defendant nos.11 to 14, 15 & 16 and 20 to 23 in filing their respective written statement.
Taking to the fact narrations involving the plaint averments and the written statement filed by the respective defendants, for the pleadings and the
evidence available on record and being taken care of by both the courts, learned counsel for the contesting respondents finally submitted that the suit
for partition in respect of area Ac.1.054 decs. comprised of several plots corresponds to C.S. Plot No.533 measuring an area Ac.3.21 under C.S.
Khata No.228 of Mouza-Srikanthapur on the basis of purchase from the grandson of Manmathnath Deb. C.S. Plot No.533 originally belongs to
Manmathnath Deb and Manoranjan Deb. Both of them effected the partition through registered deed of partition dated 20.7.1959 whereby the suit
land along with some other undisputed land fell into the share of Nanda Dulal Deb, the father of the plaintiff’s vendor. According to the plaintiff,
after the death of Nanda Dulal, who was in possession of some portion of C.S. Plot No.533, the partition was effected amongst his son, wife and
daughter under the registered deed of partition dated 20.12.1969. The plaintiff claims to have purchased an area of Ac.0.04½ decs. from out of C.S.
Plot No.533 from defendant no.1 in whose share the said plot claimed to have been allotted in the registered deed of partition dated 20.12.1959. While
refuting the above, learned counsel for the contesting respondents further taking to the materials available on record contended that it appears both
Manmathnath Deb and Manoranjan Deb had executed registered lease deed in favour of Bankim Chandra Samal on 17.5.1953 in respect of an area
of Ac.0.46 decs. whereas the remaining area of Ac.0.59 ½ decs. was amalgamated with the said leasehold land and Bankim Chandra Samal
possessed the entire Ac.0.59 ½ decs. was allotted in the share of Nanda Dulal Deb in the registered deed of partition in the year 1959 but he was
never in possession of the same. It is in course of an amicable settlement in between Nanda Dulal and Bankim Chandra Samal, the predecessor-in-
interest of the defendant, Bankim Chandra Samal left Ac.0.17 decs. towards the extreme western side in favour of Nanda Dulal Deb and it was
agreed that Nanda Dulal had not led any claim over the remaining land. It is thus claimed that when Bankim Chandra Samal left Ac.0.17 decs. from
out of extreme western side of plot no.533 being sold by Nanda Dulal on 6.8.1969 in favour of one Sadhu Charan Jena, there remained no land from
out of C.S. Plot No.533 creating any scope for partition in the year 1969 nor giving any right in favour of defendant no.1 to sell any further land after
the sale of last piece of land by the purchaser of vendor in favour of Sadhu Chandra Jena on 6.8.1969. In the above premises, learned counsel for the
contesting respondents taking this Court to the consideration of the pleading and evidence in this regard involving issue nos.5 & 6 by the trial court and
for the discussion involving the lower appellate court, further for the concurrent findings of both the courts on the same aspect contended that there
remained no scope for interfering in either of the judgments and decrees involved herein. While resisting the substantial question no.(a) framed by this
Court, learned counsel for respondent nos.15 to 18 taking this Court to the stand of the plaintiff-appellant in paragraphs-3, 4 & 7 of the plaint, for the
courts below observing that there is no basis to find that Nanda Dulal died intestate in absence of a brief by the plaintiff-appellant that Nanda Dulal
died intestate, contended that the plaintiff failed in making out a case. Thus, learned counsel for the contesting respondents contended that in view of
the above, there is no infirmity in the findings at issue nos.4, 5 & 6 and issue no.8.
Then coming to the findings of the lower appellate court, learned counsel for the contesting respondents taking this Court to the findings of the lower
appellate court, for the observations involving paragraphs-15, 16, 17, 18 & 19 held that the lower appellate court rightly concurred the findings of the
trial court and further their findings having no perversity requiring any interference by this Court in exercise of power under Section 100 of C.P.C.,
1908. In answering the submission of the plaintiff-appellant that at least his purchase was well within the share of the vendor even in absence of
property being included in the deed of partition, learned counsel for the contesting respondents contended that such ground must fail once it is upheld
that there is no material to hold that Nanda Dulal died intestate leaving behind some portion of plot no.533 and as nobody raised the the question of
validity to the sale exceeding the share and the case rested only on the title and possession of defendant no.1. In absence of any material supporting
the claim of the appellant, the suit was rightly dismissed. Relying on the decision of the Hon’ble apex Court in the case of MadamanchiÂ
Ramappa & others vrs. Muthalur Bojjappa reported in (1964)2 SCR 673, learned counsel for the contesting respondents submitted that
for the failure of the plaintiff-appellant to prove the joint title and possession over the disputed property involving the defendants including defendant
no.1, no right and title will flow in favour of the plaintiff. The appellate court’s observation that there was no cross-objection to the finding of the
trial court that defendant nos.11 to 14 had also no possession over the disputed property, learned counsel for the contesting respondents submitted that
such observation since is not relevant, there was no scope for any cross-objection and further mere finding without any declaration does not also
entitle a party to file appeal or raise cross-objection. Sri Dash, learned counsel, taking support of the decisions of the Hon’ble apex Court in Ganga
Bai vrs. Vijay Kumar & others reported in AIR 1974 SC 1126 and State of Karnataka vrs. Union of India & another reported in (1977) 4 SCC 608
substantiated his above submission.
For the stand of the parties indicated herein and their support to the decisions referred to herein above, this Court proceeding to decide on the
question of law framed by this Court in admission of the Appeal and taken note of in paragraphs-A & B, finds, the case involved herein rests on the
ultimate outcome of the substantial question no.(a), which reads as follows :-
 “(a) Whether the partition in the family of the plaintiff’s vendor of the year 1959 (Vide Ext.5) allotting the plot in question (No.533) to the father of the
plaintiff’s vendor has not been challenged, whether the courts below are correct in assuming that the plaintiff’s vendor had no saleable title merely because in
the subsequent partition among the vendor and his other co-sharers of the year 1969 (Ext.K) the suit plot has not been included ?
On facts on question of defendant no.1 had the right, title and interest over the disputed property or not, this Court finds, the plaintiff in the trial court
has the pleading substantiating this aspect in paragraphs-3, 4 & 5. The contesting defendants, defendant nos.11 to 14 in response to it have clear denial
vide paragraphs-5, 6, 7 & 8 respectively in their additional written statement. These defendants again in the objection to such claim of the plaintiff
filing additional written statement have their clear objection in paragraph-2 therein. There is no much relevancy in the other three sets of plea and
evidence of defendant nos.15 & 16, defendant nos.20 to 23 and defendant nos.24 & 25. Coming to scan the evidence of defendant no.1, it appears,
the defendant simply supported the claim of the plaintiff. This Court thus here finds, while the plaintiff makes his claim on the disputed property on the
basis of defendant no.1’s right, title and interest over the dispute property of defendant no.1 while supporting his such stand, the contesting
defendants have a clear challenge to the same. To establish their respective claim, the plaintiff examined as many as four witnesses and exhibited
Exts.1 to 11 involving plaintiff as P.W.1. D.W.1 in his chief states that the disputed property fell to the share of defendant no.1 in a family partition
dated 20.12.1969 which the plaintiff purchased by virtue of a sale deed dated 2.3.83involving defendant no.1, vide Axt.1 and since then he is
possessing of the same. The plaintiff while saying so again in his chief submitted that in the Major Settlement dated 16.12.86 the disputed property still
remained in jointness. Perusal of Ext.7 it also established that the property was in jointness. As appears, the plaintiff has no specific case on his
attempt to correct the M.S. R.O.R. and/or correction of settlement records has reached finality or not. It is at this stage, considering that there is no
concrete material coming forth establishing that this particular disputed property fell to the share of defendant no.1 independently and further for the
existence of Ext.7, the Major Settlement R.O.R., vide Ext.7, no correction having been taken place therein, there is serious clout on the claim of the
plaintiff that defendant no.1 possessed any particular portion of the land independent of his own, which has been sold vide Ext.1 and that there was
possibility of delivery of possession of the same. It is at this stage, even assuming that the disputed property involved in jointness in the Major
settlement R.O.R. involving defendant no.1, there was no possibility of sale of any particular land as law only permits a party to sell his share only by
entering into a sale deed leaving it open to decide the particular piece of land either in mutual partition or future litigation, consequence of which there
is also no possibility of delivery of possession of any particular land in absence of effective partition in the meantime. Strangely enough defendant no.1
though filed written statement supporting the case of the plaintiff-appellant but neither defendant no.1 chose to examine himself as a witness through
vendor on his possession over the particular disputed property at the time of sale to establish his right, title, interest and possession over the disputed
property nor the plaintiff chose to examine defendant no.1 at least to establish his such claim. It is at this stage, examining the stand of contesting
defendant nos.11 to 14 and further their evidence, this Court on scan of statement in chief of defendant no.1 and the cross-examination, finds
D.Ws.11 to 15 have been able to clearly establish that for the development taking place therein in between and particularly keeping in view the last
portion of patch of land extending Ac.0.17 decs. sold by Nanda Dulal on 6.8.69 in favour of Sadhu Charan Jena, the uncle of defendant nos.11 to 13,
vide Ext.G. It appears, defendant no.1 had no alienable right over western side of the property and for the admission of Nanda Dulal in the said sale
deed that title in respect of remaining Ac.0.42 decs. remained with Bankim Chandra Samal rightly C.S. Plot No.533 was not included in the partition
between defendant nos.1 & 2 and their mother in the year 1969. For this clear material available on record, this Court finds, the plaintiff remained
unable to make out a case that the disputed property was in the right, title, interest and possession of defendant no.1.
It is at this stage, looking to issue nos.5 & 6 framed in the trial of the proceeding and the finding therein, this Court finds, the trial court in a
threadbare discussion of the entire aspect has come to the clear finding that the vendor of the plaintiff-appellant had no title over the C.S. Plot No.533
so as to enter into a sale deed with the plaintiff and further since the plaintiff has no valid title over the property claim of partition on such basis
remained not maintainable. On this score, issue no.4 also failed.
Coming to scan the lower appellate court judgment, this Court finds, the lower appellate court taking all these materials into consideration and after
getting into the discussion and finding of the trial court has clearly observed that for the father of defendant no.1 having sold his last patch of land
Ac.0.17 decs. in favour of respondent nos.16 to 19 by virtue of a sale deed bearing no.11381 dated 6.8.69 marked as Ext.G on behalf of respondent
nos.16 to 19 and for no challenge to such sale deed, the appellate court while approving the findings of the trial court was pleased to dismiss the
appeal. For the observation of this Court on the specific observation of both the courts below that defendant no.1 had no title over the disputed
property at the time of sale to plaintiff and for the concurrent finding of fact on issue nos.5 & 6 by the trial court and the lower appellate court, this
Court finds, the substantial question no.(a) framed by this Court is to be answered observing that both the courts below are correct in holding that the
plaintiff’s vendor had no saleable title. For the answer on the substantial question no.(a), there is no necessity to go to
substantial question no.(b) framed by this Court vide its order dated 6.8.2010.
Considering the allegation of the appellant that for no appeal against the findings of the trial court that some of the defendants had not even
possession of the suit land, the suit has been decreed by the lower appellate court, this Court finds support of the submission of the learned counsel for
the respondents through the decision of the Hon’ble apex Court in the case of Ganga Bai vrs. Vijay Kumar & others reported in (1974) 2 SCC
393, wherein the Hon’ble apex Court in paragraphs-16 & 17 held as follows :-
“16. Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an
appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section
100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals
against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal
shall lie ""from no other orders"". Clause (i) of this section provides for an appeal against ""any orders made under Rules from which an appeal is expressly allowed by
rules"". 'Order 43, Rule 1 of the Code, which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under
various rules referred to in clauses (a) to (w) thereof, Finally, section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from
any order made by a court in exercise of its original or appellate jurisdiction.
These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an
appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It
must follow that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court.
Considering the decision of the Constitutional Bench of Hon’ble apex Court in the case of State of Karnataka vrs. Union of India & another
reported in (1977) 4 SCC 608, this Court finds, the Hon’ble apex Court in paragraph-165 held as follows :-
“165. In an ordinary civil suit, the rejection of a right asserted by the defendant cannot correspondingly and of its own force establish the right claimed by the
plaintiff. But proceedings under Article 131 are adjudicatory of the limits of constitutional power vested in the Central and State Governments. The claim that the
defendant (the Central Government here) does not possess the requisite power involves the assertion that the power to appoint the Commission of Inquiry is vested
exclusively in the plaintiff (the State Government here). In a civil suit the plaintiff has to succeed on the strength of his own title, not on the weakness of his
adversary's because the defendant may be a rank trespasser and yet he can lawfully hold on to his possession against the whole world except the true owner. If,, the
plaintiff is not the true owner, his suit must fail. A proceeding under Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a
proceeding is between two or more governments-either the one or the other possesses the constitutional power to act. There is no third alternative as in a civil suit
wherein the right claimed by the plaintiff may reside neither in him nor in the defendant but in a stranger. A demarcation and definition of constitutional power
between the rival claimants and restricted to them and them alone is what a proceeding under Article 131 necessarily involves. That is how in such a proceeding, a
denial of the defendant's right carries with it an assertion of the plaintiff's. Firstly, therefore, 1 am unable to appreciate that if a State Government challenges the
constitutional rights of the Central Government to take a particular course of action, Article 131 will still not be attracted. Secondly, the contention of the State
Government in the present proceeding is not only that the Central Government has no power to appoint the Inquiry Commission for inquiring into the conduct of
State Ministers but that such a right is exclusively vested in the State Government. There is, therefore, not only a denial of the right claimed by the Central
Government but an assertion that the right exclusively resides in the State Government. In a sense, the instant case stands on a stronger footing than the Rajasthan
Case because there the challenge made by the State Governments could perhaps be characterised as purely negative in nature since the basic contention was that the
Central Government had no power to dissolve the State Assemblies. There is, therefore, all the greater reason here for rejecting the preliminary objection.â€
Reading the aforesaid decisions, this Court is of the view that the plaintiff has to succeed on the strength of his own title and not on the evidence of his
adversary.
Considering the submission of the learned counsel for the plaintiff-appellant that when defendant nos.11 to 14 even failed in establishing their title and
possession, this Court finds, the above decisions of the Hon’ble apex Court opposes the claim of the plaintiff-appellant.
Scan of the judgment cited by the plaintiff-appellant, this Court observes, for the plaintiff-appellant failing to succeed his case on the title of the
vendor of defendant no1, both the decisions taken support by the plaintiff-appellant do not support the case of the plaintiff.
On the question of purchase of undivided share of co-sharer, this Court observes that there is no doubt in the purchase of share of a co-sharer for
the settled position of law, vide AIR 2009 SC 2735 and a decision of this Court, vide 116(2013) CLT 209 but for the concurrent finding of fact of both
the courts below that the vendor of plaintiff had no title to sell the disputed land, none of the decisions indicated above has any application to the case
of the appellant. For the aforesaid position of law, the appellant could not have also maintained the suit for partition and both the courts below have
proceeded in accordance with law.
As a consequence, the Second Appeal fails. However, there shall be no order as to cost and the parties are to bear their own expenses.
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