Michhu Rana (since deceased) after him Jogesh Rana and Others vs Netrananda Rana and Others

K.B. Panda, J.—This is on appeal by Defendant No. 1, against the judgment of the Third Additional Subordinate Judge, Cuttack decreeing the suit of the Plaintiffs preliminarily for a partition by metes and bounds of the properties described in the schedules to the plaint. The sole Appellant having died during the pendency of the appeal, his legal representatives have been brought on record.

As would appear from the following admitted genealogy, the Respondents of the first branch of the common ancestor Dinei together with the descendants of the third branch has brought the suit for partition against the descendants of the second branch.

Dinei Rana

Surjya Parami Adikanda

Gopi Raghu Banchu Michhu Panchu Caitan

Plff. 2 =Labani Deft. 1

Netrananda Plff. Sria Malati

Plff. 1H arekrushna (daughter) (daughter)

Plff. 4 Deft. 2 Plff. 5

The entire immoveable properties of the family are confined to two khatas, namely,. 830 and 831 of mouza Bahar Bisnabar, Ph. Bakharabad in the town of Cuttack, Khata

No. 830 contains only on plot, namely, 320 having on area of A. 0.005 decimals which is the residential house of the family. Khata No. 831 comprises of 23 plots having a total area of A. 0.905 decimals. Out of these, plot No. 299 is admittedly a road carrying aft area of A. 0.015 decimals. There are two tanks bearing plot Nos. 300 and 310 having on area of A. 0.076 and A. 0.075 decimals respectively. These three plots according to both the parties have never been partitioned and kept joint. The plaint ''B'' schedule properties form part of plaint A schedule lands, having on area of A. 0.234 decimals in all which have been sold by the second branch (Parami, Michhu and Panchu) in favour of the third branch Chaitan and a stranger Iswar Rana under a registered sale deed Ext. A. dated 20/27-7-1931. Initially, Khata No. 830 was not included in, the schedule. It was done when in the written statement it was pointed out that all the properties of the joint family had not been brought for partition particularly the residential house. In Schedule ''A'' properties, the Plaintiffs 1 to 4 claim one-third share, Plaintiff, No. 5 claims one-third share leaving one-third share for the second branch, whereas in Schedule. ''B'' properties, Plaintiff No. 5 alone claim''s a half share.

The case of the Plaintiffs specifically was that the parties have separated in status since long but their immoveable properties have not been partitioned by metes and bounds. They are possessing their joint properties separately more or less according to their share without partitioning it by metes and bounds.

They further alleged that since Defendants 1 and 2 are, creating trouble in their joint possession; hence the suit.

Michhu Defendant No. 1 asserted that 5 to 6 years prior to the last settlement in 1931, there had been partition between the parties of all their assets both moveable and immoveable. Accordingly, there was separate note of possession in respect of different plots in the settlement records of 1931,. Further it is asserted that it is on account of this partition that Schedule B properties have, been sold by the second branch in favour of a member of the third branch and another, Besides, different branches have got their names separately recorded In the Anchal. There is also separate municipal assesses fit in respect of each branch. According to Defendant No. 1 since lie attempted to put a compound wall around the area he is in possession that the suit has been filed mischievously although there was metes and bounds partition several years ago on the basis of which each brand is dealing with the properties fallen to its share and possession is if it is the separate property of that branch.

There is no dispute regarding the extent of immoveable properties belonging to the family. The Record-of-Rights of the year 1931 Ext. C is also not challenged nor Ext. A under which Schedule ''B'' properties have been conveyed. The Municipal receipts are Ext. B series which are also not challenged nor the assessment list of the Ward No. XXIII of the Cuttack Municipality within the properties lie. The Tenants Ledger Ext. E series is similarly not disputed. Both parties further adopt that the Rasta and the two tanks referred to above have Dot been partitioned at any time. During evidence it transpired and also it has been asserted in the written statement of Defendant No. 1 that Adikanda had transferred 0.221 decimals of land in the name of Sri Bhagabat Gosain which is a Part of Khata No. 831. It has been separated recorded in the Anchal in the name of Bhagabat Gosain under Khata No. 831/3. When this was pointed out in the written statement, Bhagabat Gosain was made a party with Plaintiff No. 5 as Marfatdar and the plaint was accordingly amended (See para 8 of the judgment of the trial Court).

It may be stated here that Defendant No. 2 has filed a separate written statement substantially supporting the case of Defendant No. 1, but thereafter was set ex parte.

On the Plaintiffs side Plaintiff No. 1 examined himself alone as p.w. 1 and on the Defendants'' side Defendant No. 1''s son was examined as D.W. 1. D.W. 2 is a common relation being nephew aged about 53 years who supported die case of earlier partition by metes and bounds.

The learned trial Court framed as many as eight issues of which the main issue was issue No. 5, namely, "is the Defendant''s story of prior partition true. However, on interpretation of the documents and the Records-of-rights he came to hold that there has been no evidence of earlier partition by metes and bounds and hence decreed the suit preliminarily. The main ground for arriving at the above decision appears to be inequality of shares in the Record-of-Rights. He further held that mutation in the Anchal or separate assessment in the Municipality are no proof of partition by metes and bounds.

It was contended on behalf of the Defendant-Appellant that assessment of the evidence both oral and documentary by the learned trial Court is wrong and that the learned trial Court has not at all taken into consideration the circumstances that flow from the manner in which the parties have dealt with the properties all these years. Obviously the oral evidence in the case is very scanty. The suit has to be decided mostly on the interpretation of the documents and the circumstances. Accordingly the appeal which came before a single Judge of this Court thought it fit to refer it to a larger Bench and this is how the appeal is before us.

At the outset we would like to discuss the principle of law on the point. True, the general law is that all Hindu families are presumed to be joint unless, the contrary is proved, But once severance of joint status is admitted, as in this case, the presumption fails. The Plaintiffs in this case though not specify the year, admit severance of joint status prior to the settlement in 1931. The dispute here is whether there is a metes and bounds partition or just a mutual partition for the sake of convenience. It has to be judged like any other fact on the basis of evidence on record, oral, documentary as well as circumstantial. There is no presumption to be availed of by either party in this background. Consideration in this case would be different from what would have been in a case where dispute arose soon after the severance of joint status. The suit in represent case was brought after a long lapse of time almost 40 years after the severance of joint status. As early as in 1927, their Lordships of the Privy Council in AIR 1927 208 (Privy Council) , in the circumstances of that case observed thus:

It is on undisputed fact that more than forty years ago, when the family separated in food and residence, some arrangement was come to between Hansaraj Singh and his brothers, whereby possession of by far the larger portion of the lands was distributed between them. With regard to some, it was arranged that the rents should be collected separately according to their respective shares with regard to others that they should be in the exclusive possession of each co-proprietor. The, Plaintiff alleges that this was merely for convention of management. The Defendant asserts that it was in pursuance of a formal partition.

The learned Chief Justice of the Patna High Court was of opinion that the present state of affairs may quite possibly be explained on either hypothesis, but he considered that certain facts pointed strongly to the absence of any formal partition having taken place, in particular the absence if any deed, document or writing in connection with such partition.

That, no doubt, is on important fact to bear in mind. It has also been urged before this Board that the plots of land, which are in the exclusive possession of the proprietors, are described in rent receipts and zamindari papers as kamat, which tends to show that they may have been taken without any formal division. But, on the other hand, there are other undisputed facts which point so strongly in the opposite direction that their Lordships have come to the conclusion that sum oral evidence as there is in support of a form partition was rightly accepted as correct by the Subordinate On a Consideration of several aspects of the case their Lordships held-

The very appearance of these separated holdings, i.e the plots from which rents ate collected exclusively, on the map prepared for the purpose of this case, which is not in three compact blocks, but in many cases isolated and scattered, seems to negative the theory that the arrangement for exclusive collection of rent was for convenience of management.

In Haria Vs. Bhindru and Others, , it was held thus:

Presumption of jointness is weakened as relationship between parties becomes more remote. Separate enjoyment and separate mess suggest separate status. It is not the statement of the parties but their actings and dealings with the estate which furnish a true guide to the determination of jointness or otherwise of a family.

xx xx xx xx

After a considerable laps of time, the testimony of the precise terms on which a separation or partition was effected will in most cases be wanting the presumption is that the old state of things continued. This presumption is stronger in the case of brothers than in the case of cousins and the father one goes from the founder of the family, the presumption becomes weaker and weaker. Where, therefore, it is found that the parties are descendants in three branches from a common ancestor, the presumption in favour of continued union becomes very slender. If it is met by evidence of long continued exclusive possession of parcels of original family estate, of independent dealings with them, of a total separation in food, worship and residence, it cannot prevail against the inference which such acts suggest. Long continued separation in food and worship can seldom exist without separation in enjoyment of property or income. In order to show separation it may not be necessary to prove a formal partition, for it may be that a formal partition, was never effected and it effected, it cannot be proved. In such a case, the only means of proving partition is by proof of separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness. Separate appropriation would be very good evidence of a tacit agreement amongst the members or amongst their ancestors to hold that property according to their separate shares.

Mere exclusive possession cannot afford evidence of exclusion but the exclusive possession enjoyed by three branches are elements for consideration whether the proprietors of them intended that they should possess estates as separate and absolute owners thereof.

Entries in revenue records suggesting jointness as a presumptive value was held to be rebutted by the evidence of exclusive and separate enjoyment by a particular branch of the family. This view was reiterated in another case reported in Mela Ram and Ors. v. Amar Nath and Ors. AIR 1957 HP 59.

In the case of Jayakrushna Sahu and Ors. v. Sri Paramieswar Sahu and Ors. 24 (1958) C.L.T. 304, it was held thus:

It is contended strongly on behalf of the Plaintiffs Appellants that possession noted separately in favour of the different parties are not exactly and accurately representing their respective shares. The learned lower appellate Court has discussed this aspect very carefully and has come to the finding that separate possession noted in favour of different parties does not indicate that possession was completely disproportionate or inequitable. In my opinion, the cumulative effect of the voluminous records placed before the Courts below could lead them to come to the conclusion that in fact there was a completed partition by metes and bounds, long before the suit for partition was filed, and as such the present suit for partition must fail,

Mr. Mohanty, learned Counsel appearing for Respondents relied on two decisions, namely; Smt. Savitri Devi v. Jiwan Chaudhary and Ors. AIR 1900 Pat. 548 and Narasingh Panda and Anr. v. Adikanda Panda and Ors. 1872 (1) C.W. 977. In the first case the dispute was whether there was separation of status or not. In that connection it was observed that mention of separate shares of different branches in the survey-record of rights does not indicate at all that there was definition of the shares in the sense that severance of joint status had taken place. The definition of shares must be brought about with on intention to separate. A mere definition of shares in revenue and village papers would not by itself, be conclusive evidence, even of the fact that on actual partition was then intended.

That case has no application to the present case in as much as in the instant case separation of joint status is admitted. In the latter case, the point decided was as follows:

In view of the formal presumption of jointness, the burden is on the party who alleges prior partition by metes and bounds. The final Court of fact, therefore, is to carefully analyse and scrutinise the evidence on record, snowing separate possession, separate dealing with the joint family properties and separate mess and separate recording of the name of the members of the family in respect of the separate portion of the joint family properties to see if such evidence has outweighed the normal presumption of jointness.

Where the party alleging prior partition has asserted that the partition took place at a particular time and such assertion has not been substantiated, the falsity of such asserting is a factor to be reckoned with in course of appraisement of the evidence and may, in appropriate cases negative the case of prior partition. Similarly where there, are circumstances appearing in evidence which lead to on adverse inference against the theory of prior partition by metes and bounds such circumstances, may go to strengthen the presumption of jointness.

We do not find anything here which can be called in aid in support of the case of the Respondents. In conclusion we will hold that regard being had to this case, the Plaintiffs admitting severance of joint status, but no metes and bounds partition and the Defendants alleging metes ,and, bounds partition, the respective claims of the parties have to be decided on materials available on record.

On assessment of the oral evidence on the side of the Plaintiffs, there is hardly anything to support the case of no metes and bounds partition. Plaintiff No. 1 is p.w. 1 who has alone been examined on the side of the Plaintiffs. He is the great grandson of the common ancestor Danei. He has stated in his examination-in-chief-

I do not know if any mutation or separation of Khata in Khasmahal. (The suit lands were under Zamindariand later it vested in Government.)

In cross-examination he stated-

Since long from the time of the Zamindar we were paying rents separately according to 5 annas. 4 pies and we were obtaining 5 receipts there for. From the Zamindar, we were getting three rent receipts.

But the Khatas were separated from 1960 only. We are in separate possession of lands but the extent is not proper and some possess less and some possess more.We are in possession of lands as per note of possession in Settlement khatian.

xxxx xx

Municipality we have been separately have separate holdings and pay tax

xx xxxx

I had seen original of Ext. A with Chaitan and Iswar. I cannot say if it is written in that sale deed that they sold the property as per any amicable partition.

xx xxxx.

I do not know if the Khata has been separated in Anchal-as to the said sale deed.

This Plaintiff while deposing in 1967 was 37 years old. Though in the plaint the year of severance of the joint status is not mentioned, yet it turns out to be sometime in 1925 or 1926 as alleged in the written statement. Thus by the time of severance of the joint status in the family, p.w. 1 was not born. As it appears, there is not only separate possession noted as between the three branches of Dinei, but their descendants also have got the lands divided as between them which is a significant factor to be taken into consideration. This witness pretends not to know about separate mutation in Khasmahal which can hardly be believed. There is no other evidence either oral or documentary to support the case of the Plaintiffs.

Turning to the oral evidence on the side of the Defendants, d.w. 1 is the sen of Defendant No. 1. He was aged about 36 years while he deposed. The evidence of d.w. 1 goes to show how the three branches are separate in mess and property; I there have been separate holdings in Municipality; there have been inter se transfers of land from the share falling to each branch; how only the, two tanks and the path are joint; and how the Plaintiff''s are only entitled to get that must which has been recorded in the Record-of-Rights of 1931.

In substance, therefore, his evidence only relates to the documentary evidence in the case which would be discussed hereafter. D.W. 2 who was aged about 53 years is a common relation of the parties being a nephew of Defendant No. 1. He supported the defence case of metes and bounds partition. He also stated how Defendant No. 1 was suffering from mental derangement at the time he was deposing and he was under treatment. Admittedly, Defendant No. 1 died during the pendency of the appeal here:

Coming to the documentary evidence, the first document that entitles discussion in point of time is Ext. A dated 20.7.193. Though this document is with the Plaintiffs, they did not produce it before the Court. The Defendants have produced a certified copy of it in Court. Under this document, plot Nos. 304, 306, 311 and 13 decimals out of plot No. 310 in all totalling 240 decimals have been sold by the second branch of Dinei to the third branch Chaitan and a stranger. The Defendants'' contend that it speaks of a metes and bounds partition whereas the Piaintiffs contend otherwise. The recitals therein are thus:

I, out of Sabak settlement Khata No. 737 Hal area 9,05 decimals, Zama Rs. 4-3-9 pies, out of which according to amicable partition (aposi Bantana Dakhala Jami) we being owners in possession of our share are going to sell. At a later stage of the document, it is mentioned that without finding any other means of paying up the debt, I am selling some lands out of my Kismat (out of my share).

It was contended by Mr. Mohanty that this word "Kismat" in the absence of the boundaries in the Tahsil of Ext. A, would indicate that there has been no metes and bounds partition. We do not think the document is capable of such on interpretation. In this document, three whole plots have been sold and boundaries of two sides have been given. Again the word "Kismat" can he well explained for plot No. 310 which is a tank and admittedly not partitioned had been conveyed under this deed. So it has been written out of plot No. 310, 0.013 decimals had been sold. This plot 310 has on area of 0.075 decimals. As already stated this has been allowed to remain joint. Therefore, it is no wonder that the word "Kismat" should be there in the document. Other recitals of the deed on the whole be speak of a complete partition by metes and bounds and not in the nature of a convenient possession. Besides it was one branch that was selling to another branch along with a stranger. Had there been no metes and bounds partition, it is doubtful if the vendee should be content in purchasing such a land on passing of consideration. The conduct of the parties as evidenced from other documents support the theory of a metes and bounds partition.

The second in point of time comes the Record-of-Rights finally published on 17-2-1932. It comprises of five categories of lands, namely; Ghara, Bari, Gharabari, Gadia and Rasta as per different plots. In the tenant''s column against Khata No. 831 all the co-sharers are recorded and there is separate note of possession in respect of each plot, barring the two tanks (plots 300 and 310) and the rasta (plot No. 299) which are recorded joint. There are three items, that is, plot Nos. 316. 317 and 318 which have been described as Ghara. One of these, that is plot No. 316 is noted to be in possession of the second branch, having on area of 0.23 decimals only. Evidently Bari, Gharbari and Ghar cannot be placed on the same footing. It was contended on behalf of the Plaintiff-Respondents that, the inequality in sharers from Khata po. 831 in the Record-of-Rights is a conclusive proof of want of metes and bounds partition. The learned lower Court has also accepted the same. True it is one of the factors to be judged whether there has been a metes and bounds partition or not. But that can hardly be the sole test. It would all depend on the value of the shares given to each co-sharer. If the value of some, share is more, be is likely to get less area whereas if the value is less the area will be, greater. Regard being had to the nature of the properties, there is bound to be inequality in shares. Besides the value of the land in Cuttack town in the year 1966 when the suit was brought was something quite different than what it was in the year 1925 or 1926 when admittedly there was division. In the meantime, during the course of their possession for about 40 years; each party issue Posed to have either improved the land in his possession or allowed the same to go waste. In this case, as the record shows, the Defendant was going to put a boundary wall over his area for which the quarrel started. There was a petition for injunction and that is the surest evidence also how nobody was particular till the Defendant No. 1 attempted to raise a pucca, structure.

In this context, we cannot ignore making a reference to the residential house under Khata No. 830. Nobody knows how many rooms it contains and how it was, or is being possessed, Obviously this was pot included in the suit initially. But when pointed out in the written statement of Defendant No. 1 that it was subsequently included in the suit as lot No. 2 to Schedule A. It is very likely that some of the branches have got more share in this ancestral residential house which has been compensated by giving certain parties more in the Ghar and Gharbarias described under Khata No. 831. The family having immoveable property in two khatas only, it is really significant that the Plaintiffs should omit the residential house under khata no 830 while bringing the suits. It appears to be intentional and not accidental.

Further had there been no metes and bounds partition ordinarily the co-sharers would have objected to separate note of possession in the Record-of-Rights, which was at least to the prejudice of the party who had been recorded in respect of less lands than other co-sharers recorded in respect of more lands. To add to this, the parties remained content with that still they gottheir names muted in the Zamindari Sherista under Ext, E series. It was sometime in the year 1958-59.-Ordinarily the parties would have made a petition in the Sherista of the Zamindar in consequence of which separate mutations were granted in respect of different parties in respect of different khatas and rents were accordingly paid for at least eight years prior to the institution of the suit. If really there had been no metes and bounds partition, we do not think the parties would have agreed to on unequal division and subsequently on unequal mutation and unequal payment of rents this conduct is incompatible with the Plaintiffs case of possession for mutual convenience without metes and bounds partition.

Next we come to the assessment list in the Cuttack Municipal records. Ext. D-1 refers to the year 1953-54 and Ext. D refers to the year 1661-62. This separate assessment in the Municipal records is also indicative of the fact how the parties agreed to this division, and did not raise any objection. That was only possible if there had been a metes and bounds partition and not otherwise. Here also reference may be made to the transfer made by Adikanda in favour of Lord Bhagabat Gosain. Thus this course of conduct of the parties vis-a-vis the properties show as if they were treating it for all these 40 years as their own by virtue of a clear metes and bounds partition and not possession for sale of convenience. Accordingly from die admission of p.w. 1, the various documents, conduct of the parties, coupled with the fact of admitted severance of joint status long ago in the year 1925 or 1926 we are led to the conclusion that there had been a prior partition which die Plaintiffs characterise as division for convenience. In fact, there was a partition, of which oral evidence though lost, is borne out by documentary evidence coupled with the conduct of the parties. To conclude, therefore once there has been a partition, a suit for a second partition does not lie, hence the appeal has to be allowed.

In this context, we may, however, add that the Plaintiffs had not initially brought the residential house under Khata No. 830 for partition. Their only prayer was for partition of Khata No. 831 in equal shares. In that they had clearly stated that the Gadias tanks, and the Rasta have not been partitioned and they have been allowed to remain joint. That is also the case of Defendants. The learned lower Court has directed in respect of these three plots thus:

...they need not divide the road and tanks which are in plot Nos. 299, 300 and 310 which should continue as joint property of the family as it is not possible to divide them by metes and bounds unless parties agree as between themselves to fill up the tanks and divide the dry area as per the above shares.

So far this part of rile judgment is concerned, we confirm the same subject to the alienation made under Ext. A by way of adjustment. The Defendants allege a complete partition except these three plots. So they cannot lay any claim for partition of the residential house under Khata No. 830., The shares of the parties and their possession of Khata No. 830 would remain untouched by this judgment.

In the result, the appeal is allowed to the extent indicated above with costs throughout.

S.K. Ray, A.C.J.

I agree.