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Sm. Oshashashi Dei Vs. Petei Dei and and After Death, Khandei Dei and anr. - Court Judgment

LegalCrystal Citation
CourtOrissa
Decided On
Reported inAIR1949Ori29
AppellantSm. Oshashashi Dei
RespondentPetei Dei and and After Death, Khandei Dei and anr.
Excerpt:
.....of sum mouses, notices and all incidental processes beginning from the filing of the plaint by the landlord-delendant till the delivery of possession. this is at one bottom of the well-known principle that one co-owner's possession is for the benefit of all the other co-owners the partition is the formal act by which co-ownership in the entire common property is converted into exclusive ownership in a part of it. we have carefully studied the' judgments of both the courts below dealing with this aspect of the case and we fail to find any materials before the courts which would warrant them to come to a finding of specific allotments of lands as between two brothers. 9. in the result the appeal succeeds in part, judgment of the learned lower appellate court is set aside and that of the..........provisions of section 199, orissa tenancy act, and the suit, as framed, had not the character of a rent suit. the decree was obtained ex parte on 2nd march 1934 and verbal prayer for execution was made on the same date. on 2nd april 1937, order for attachment of 8.70 acres of lands (the disputed lands) was issued and it was effected on 18th june 1937. the sale took place later which was followed by delivery of possession on 28th november 1937 as already stated. the plaintiff impugned the sale as 'no sale' and as not binding on her inasmuch as she was not impleaded in the execution proceedings, her husband having died on 27th april 1937 (ii) the only judgment-debtor against whom execution was pursued resulting in the alleged sale had absolutely no interest in the holding on account of.....
Judgment:

Ray, C.J.

1. This is a defendant's second appeal in a suit for declaration of-title and recovery of possession of Section 70 acres of land said to have been inherited by the plaintiff from her deceased husband (Dhruba) but now possessed, by the defendant by virtue of delivery of possession given by the rent execution Court at Jaipur on the strength of an auction purchase which took place some time in the year 1987. The delivery of possession is dated 28th November 1987 and the present suit commenced on 16th July 1943.

2. In order to appreciate the questions raised, it is necessary to state certain facts. The disputed lands 'constituted one occupancy holding which was the ancestral property of the plaintiff's husband (Dhruba) and his brother (Brundaban). Both the brothers were in joint occupation of the same till they separated and divided the family property some time about 50 years before the suit. It is alleged by the plaintiff that in that family partition the disputed lands fell completely to the share of her husband. Defendant 1, who is a coherer landlord, obtained a decree for recovery of rent due in respect of half of the holding in lieu of her moiety share in the landlord's interest. In the said suit, the plaintiff's husband (Dhruba) and his brother (Brundaban) were impleaded as defendants being the owners in occupation of the holding as joint tenants. Other cosharers landlords were not joined in the suit as required by the provisions of Section 199, Orissa Tenancy Act, and the suit, as framed, had not the character of a rent suit. The decree was obtained ex parte on 2nd March 1934 and verbal prayer for execution was made on the same date. On 2nd April 1937, order for attachment of 8.70 acres of lands (the disputed lands) was issued and it was effected on 18th June 1937. The sale took place later which was followed by delivery of possession on 28th November 1937 as already stated. The plaintiff impugned the sale as 'no sale' and as not binding on her inasmuch as she was not impleaded in the execution proceedings, her husband having died on 27th April 1937 (ii) the only judgment-debtor against whom execution was pursued resulting in the alleged sale had absolutely no interest in the holding on account of there having been a complete partition of the joint family properties as between the brothers in course of which the disputed holding, in its entirety, had been allotted to her husband; (iii) it was also urged that the suit as well as the execution proceedings were tainted with fraud effectuated by fraudulent suppression of sum mouses, notices and all incidental processes beginning from the filing of the plaint by the landlord-delendant till the delivery of possession. The defendant resisted the suit in denial of all the aforesaid averments and by his two specific and substantive pleas, namely, as landlord he was not bound by any partition, if at all, effected between the joint tenants and was entitled to proceed against the tenants recorded in the lat st record 61 rights and in his own rent-roll and secondly the plaintiff's suit was 'barred by the special rule of limitation provided for in schedule 3, Article 3, Orissa Tenancy Act.

3. The plea of the fraudulent character of the suit and the execution proceedings has been negatived by both the Courts below in concurrence with each other. Mr. Chatterji, the earned Counsel for the respondent, tried to invite our attention to the circumstance of the shockingly low price that was fetched at the auction sale. This simply raises a question of probability but does not enure to bis benefit in view of the explicit findings of the Courts below that the necessary processes of Court in relation to the suit and the execution proceedings had been duly served and effected.

4. There was a lot of controversy as to the story of either separation or jointness and partition as between the two brothers. Here too, the controversy is silenced to a very large extent by the concurrent findings of the Courts below. Both of them have concurred in the conclusion that Dhrub and Brundaban separated both in mess and estate for a considerable time before the suit and, therefore, the plaintiff was justly entitled to the share that her husband had in the joint family properties and the lands that fell to his share at the family partition. There is some substantial dispute as to the actual division. Both the Courts below have come to the finding that the entire holding consisting of 8.70 acres of lands had fallen to the share of the plaintiff's hubband. This finding, based as it is, on an in ference of the learned Courts' two findings of facts, is challenged as one contrary to law. This argument seems sound. The legal implication of partition has not been properly appreciated by the Courts below in coming to their conclusion on this part of the plaintiff's case. The two facts from which they came to this inference are: (i) that the brothers separated in mess and estate and (ii) that the disputed lands were in the sole occupation or cultivating possession of the plain-tiff's husband since the separation and after his death of the plaintiff. If what partition legally means is kept in view, these two facts, as found, will not be enough to conclude a complete partition so as to extinguish the co-ownership of Brundaban (plaintiff's husband's brother) in this 'disputed land. Till partition in whatever manner, the different parcels of lauds may be possessed by tenants in common as distinguished from coparceners; the ownership of each co-sharer in each and every inch of the common lands lies dormant; separate possession of specific lands by one of them does not amount to ouster or dispossession of the other cosharers nor implies absence of title in the latter. This is at one bottom of the well-known principle that one co-owner's possession is for the benefit of all the other co-owners the partition is the formal act by which co-ownership in the entire common property is converted into exclusive ownership in a part of it. After this formal act is completed either by consent of parties or by an adjudication of Court, some specific lands exclusively and wholly represent a particular co-owner's interest in the entire property. The coming into existence of this exclusive title of one necessarily excludes even the notional title and constructive possession of the other co-owners in the properties so specifically allotted to the former. That the plaintiff's husband was possessing the entire 8.70 acres of lands alone and that after the disruption of the coparcenary, both in mess and estate, will not be sufficient to prove that Bmndaban's (the plaintiff's husband's brother's) title in the selfsame lands had been withdrawn from them as a result of partition. We have carefully studied the' judgments of both the Courts below dealing with this aspect of the case and we fail to find any materials before the Courts which would warrant them to come to a finding of specific allotments of lands as between two brothers. Therefore while upholding the finding that the brothers were separate in mess and estate, we cannot accept the finding that the entire disputed lands fell to the share of the plaintiff's husband, while at the same time accepting the finding that the plaintiff's husband and after his death the plaintiff were in sole cultivating possession thereof.

5. The next question that has been debated at the Bar is whether the decree that was obtained by defendant 1 is a rent decree or a money decree. The question does not admit of any difficulty whatsoever in view of the admitted facts of the case. These facts are. (i) that the entire body of landlords were not impleaded in the suit either as plaintiffs or as defendants {pro forma defendants) as required by Section 199, Orissa Tenancy; Act, in the case of a suit by cosharer landlord.; for recovery of his share of the rent; (ii) the plaint in the rent suit disclosed, so does the decree, that the arrears of rent were claimed as due in respect of half of the holding comprising 4.35 acres; and (iii) though the rent claimed was; in respect of half of the holding, the decree was executed in respect of the entire holding, that is to say, properties other than those in respect of which the arrears were due were sought to be proceeded against These three combined together are quite sufficient to declare that the decree obtained was not a rent decree. At the stage of the execution, the fourth difficulty appeared, namely, one of the tenants who should have also been proceeded against as re presenting the holding was dropped out, namely, the plaintiff, as we have said the plaintiff's husband died on 27th April 1937 while the attachment was effected on 18th July 1937, that is after the death of the plaintiff's husband. Under the circumstances, in order to make the sale binding against the holding as such, the plaintiff &s; heir of one of the tenants should have been brought on to the record. Under the circumstances, what must be taken to have passed at the auction salt) would be only the right, title and interest of one of the defendants-judgment debtors, namely, Bnndeban.

6. The learned trial Court, in this view, gave the plaintiff a decree to the extent of half of the disputed lands that is 4.35 acres. The learned lower appellate Court, however, reversed it on the ground that by virtue of the partition the entire holding having fallen to the share of the plaintiff's husband, the judgment-debtor whose interest was sold in the auction sale had no right, title and interest in any part of the lands in dispute. Though both the Courts below took the view that the entire holding fell to the share of the plaintiff's husband, they differed as to the effect of such partition on the landlord. The trial Court held that as the partition was not recognised by the landlord, he was not called upon to give effect to it and was en-titled to proceed for realisation of rent against an interest which the recorded tenants appeared to have been holding in the holding. The learned lower appellate Court differed from this view and made the following observations:

This deficiency on the part of the plaintiff respondent will go to show at the moat that the partition between the two brothers was not recognised by the landlords. But after the amendment of the Orissa Tenancy Act in 1938 this default on the part of the Plantiff Will hardly be of any material consequence.7. I do not find any provision in the Orissa Tenancy Amendment Act of 1938 which nukes any partition of occupancy holdings as between the tenants binding on the landlord without the latter giving his consent or in the absence of any notice to him Such partition does necessarily involve in most cases spliting up of the holding or at any rate assigning ownership of the holding to one out of several persons recorded in respect thereof. This is a change which has a material bearing on the landlord's remedies available to him under the Act for facility of recovery of the rents. In these circumstances I Bold that the learned lower appellate Court was wrong.

8. It has been contended by Mr. P.C. Chatterji that even if the partition is not binding on the landlord, yet the result would be otherwise than as o included by the trial Court. He submits that the right,, title and interest of the judgment-debtor Only having been sold and in fact the judgment-debtor having had no interest in the land nothing should pass to the auction, purchaser. This is so according to him because the decree obtained is not a runt decree nor is it executed as a rent decree. Hi contends that had a rent decree been obtained, the absence binding Character of the partition would certainly convey the holding or a part of it so far as it is represented in the execution proceedings. This contention has some force but I leave it at large as in view of the alteration of the finding by me in this Court, the contention does not arise for consideration. Lastly Mr. Mohanty the earned Counsel for the appellant, has contended that the plaintiff having been out of possesion for more than two years, he suit is barred by limitation. In consideration of the fact that the landlord as such, namely, the entire body of landlords in a duly constituted rent suit, have not purchased the holding or a part of it an in that capacity have not dispossessed the plaintiff, the question of limitation also does not arise. Besides, it has been the settled view of the Patna High Court that when the landlord-qua-auction-purchaser takes possession through Court and thereby dispossesses the occupancy ryot, the article referred to does not apply.

9. In the result the appeal succeeds in part, judgment of the learned lower appellate Court is set aside and that of the trial Court restored though for reasons different from his, In view of the success being divided equally between the parties, each of them will bear his own costs throughout.

Panigrahi J.

I concur.


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