JUDGMENT
B. Panigrahi, J.
1. Plaintiff’s in Title Suit No. 130 of 1980 of the Court of Civil Judge, Senior Division. Bhadrak are in appeal challenging dismissal of their suit by the Judgment and decree passed therein.
2. For better appreciation of the case of both parties it is necessary to quote the admitted genealogy given in the plaint.
GENEALOGY
Sk. Manohar Ali
/
Sk. Asgar Ali
/
Zobeda @ Zabeda Bibi(Wife)
/ (D.3)
_____________________________/___________________________________
/ / / / /
Sk.Akbar Ali Sk. Umar Ali Fatema Bibi Sayera Banu Ayesha Sultana
(D.1) (D.2) (Plff.1) (Plff.2) (Plff.3)
It is revealed from the genealogy that one Sk. Manohar Ali had only one son, namely, Sk. Asgar Ali. Sk. Asgar Ali died leaving behind his widow Zobeda @ Zabeda Bibi, who has been arrayed as defendant No. 3 in the suit before the trial Court. Sk. Asgar Ali had two sons, namely, Sk. Akbar Ali and Sk. Umar Ali who have been arrayed as defendants and 2 respectively, and three daughters namely, Fatema Bibi, Sayera Banu and
Ayesha Sultana, who are plaintiff’s 1 to 3 respectively. The plaintiffs’ case is that the immovable properties described in Schedules ‘Kha’, ‘Ga’, ‘Gha’ and, ‘Cha’ and the movable properties described in Schedule ‘Una’ belonged to their father Sk. Asgar Ali It is further stated that the properties de-scribed in Schedule ‘Cha’ were acquired by the Transport and Railway Departments and compensation granted by those Departments was received by defendants 1 and 2. It is further stated that there is a Lodging house and some other houses/shops standing in Schedule ‘Chha’ properties have been rented out and the rent amounting to Rs. 4,99,56o/- has been collected by defendants 1 and 2. Therefore, the plaintiff’s claim 6 annas interest in all the properties mentioned in Schedules ‘Kha’, ‘Ga’. ‘Gha’ ‘Cha’ and ‘Una’ and in the amount of rent collected from the properties mentioned in Schedule ‘Chha’ on the ground that the aforesaid suit properties were never partitioned by metes and bounds for which the plaintiffs filed the suit for partition and separate possession.
3. Respondents 1 and 2 have filed their written statement by strongly controverting the appellant’s claim. They have. Inter alia, stated that the properties described in Schedule ‘Kha’ belonged to late Sk. Manohar Ali, their grandfather, who gifted away about Ac. 14.00 acres of land to the defendants 1 and 2 separately in the year 1955. A major portion of Schedule ‘Chha’ properties were sold by late Sk. Asgar Ali to different persons and since those purchasers have been possessing those properties separately, the present suit without they being impleaded as parties, is not maintainable. It has been further stated that even though the properties mentioned in Schedule ‘Cha’ were acquired by the Transport and Railway Departments, those Departments have not been
impleaded as parties in the suit. The properties described in Schedule ‘Ga’ belonged to the Government and their father Sk. Asgar Ali had got the same on annual lease basis and was being renewed at the end of every year and since Sk. Asgar Ali died in the year 1966, after his death the said properties had not been leased out till 1971. In the year 1971 defendant – respondents 1 and 2 got fresh lease in their names and, thereafter, they constructed pucca houses thereon and rented out the same. So the properties described in Schedule ‘Ga’ cannot be partible and the plaintiffs have no interest whatsoever thereon. So far as compensation amount alleged to have been received by defendants 1 and 2 from the Transport and Railway Departments in respect of Schedule ‘Cha’ properties is concerned, it is stated that the said amount was received by their father Sk. Asgar Ali and they having not received any compensation amount, the plaintiffs are not liable to get any share therefrom. It has been further pleaded in the written statement that out of total lands of Ac. 3.36 decimals in Khata No. 909, Ac. 0.41 decimals of Plot No. 2247 were acquired by Railway Department and out of Ac. 1.41 decimals of Khata No. 324 in Plot No. 341 as mentioned in Schedule ‘Kha’, about Ac. 0.07 decimals were acquired by the Transport Department. So far as Schedule ‘Ga’ properties are concerned, respondents 1 and 2 have claimed that about Ac. 7.67 decimals were gifted away by their grandfather under a registered gift deed No. 1/223 in the year 1955. Out of Schedule ‘Gha’ properties, it is claimed by the respondents 1 and 2 that Ac. 4.72 decimals had been transferred by their father to different persons. It is further stated that the properties mentioned in Schedules ‘Una’ and ‘Cha’ have been shown to be not partible. With these pleadings respondents 1 and 2 claim for dismissal of the suit.
4. The trial court accepted the genealogy filed by the plaintiffs and held that the grandfather of respondents 1 and 2, namely, Sk. Manohar Ali had gifted some lands under a registered gift deed and rejected the plaintiffs’ prayer for partition on account of vagueness of the Schedules. It has been further held that P.W. 1, who is the husband of plaintiff No. 2, could not categorically say as to what extent of property was gifted away under a registered gift deed in the year 1955. Rather, from his evidence it has transpired that the plaintiffs have ho right over the properties gifted in favour of respondents 1 and 2.
5. Since there was no proper identity of the lands covered under Schedule ‘Kha’ the trial Court was, therefore, not inclined to allow partition. The trial Court observed as follows :
“Thus, ‘Kha’ schedule land being unspecific cannot be partitioned. As indicated by me above, in a suit for partition, if there is no dispute as to the properties to be divided, the court is relieved of the duty of ascertaining the properties that should be partitioned, but if otherwise the court should ascertain the properties to be divided in that suit, upon evidence, before preliminary decree is passed.”
6. In this view of the matter we are of the opinion that the trial Court committed error in rejecting the plaintiff’s prayer especially when there has been no dispute as regards the shares of the parties. In case of lack of proper identification, the duty is cast either upon the parties or upon the Court to specify the lands for which the parties seek partition. True it is that the plaintiffs have not made any prayer for deputation of a Survey knowing Commissioner to identify the lands gifted in favour of respondents 1 and 2 covered under Schedule ‘Kha’.
7. The trial Court on the basis of the evidence placed before it held that the plaintiffs have no claim over the properties mentioned in Schedule ‘Ga’ inasmuch as the properties described thereunder belonged to the Government which were being leased’ out’ and renewed every year from time to time. The plaintiffs’ father had no absolute right over such property unless it was renewed. Once it is held that the plaintiffs’ father had no right, the plaintiffs cannot claim any share over such property. It is an admitted fact that the properties mentioned in Schedule ‘Ga’ were leased out to Sk. Asgar Ali, father of the plaintiffs till 1966 and after his death there has been no evidence as to whom the same were given on lease till 1971. Since the properties belonged to Government, the annual lessee gets a limited right and, therefore, the plaintiffs cannot lay their hands in claiming partition over such property. In the year 1971 defendants 1 and 2 had applied for lease and it was granted in their favour.
It has been further stated by defendant-respondents 1 and 2 that only some kutcha houses stood on Schedule ‘Ga’ properties but in course of time those were damaged and raised to the ground. Thereafter they constructed new houses thereon after getting proper lease from Government. It has been contended that the plaintiffs have got sikkim right over Schedule ‘Ga’ properties and the same is heritable. There is no iota of evidence to establish that the plaintiffs have any semblance of sikkim right over such property.
8. Mr. Chose, learned Advocate appearing for the appellant, has strongly placed reliance on a decision reported in (1997) 83 Cut LT 43 : (1997 AIHC 3048) in the case of Dhuma Khan v. Commissioner of Consolidation. On a careful reading of the judgment we found that the property in question was an estate which had undisputedly vested in 1963. An application was filed by one of the co-owners on behalf of others. Therefore, this Court held that if any settlement made pursuant to Section 7 of the Orissa Estates Abolition Act, the benefit of such settlement shall be derived by the other co-owners too. It has been further decided that under Mohemmaden Law if any property enjoyed by the brothers and sisters jointly they are to be treated as co-owners or co-sharers. But in this case, from the above discussion, the following facts have emerged that the plaintiffs’ father was only a temporary lessee which was being renewed from year to year till his death. After his death no application was filed by the plaintiffs or by defendants 1 and 2 till 1971. In the year 1971 defendants 1 and 2 filed an application for grant of lease which was allowed by the concerned authorities. The lease granted to defendants 1 and 2 was not on behalf of the family as co-owners, but it is personal dehors to the claim by the plaintiffs. Therefore, the provisions of Section 7(1)(c) of the Orissa Estates Abolition Act can hardly have any application to the present case.
9. Mr. Ghose again relied upon a decision reported in (1993) 75 Cut LT 621 in the case of Sankarlal Verma v. Smt. Uma Sahu. It is no doubt true that the provisions of Transfer of Property Act shall be applicable ip respect of a permanent lease. Neither party filed the copy of the lease deed under which the plaintiffs’ father was granted lease. Rather, the defendants have specifically stated that it was a yearly lease and was being renewed from year to year. Certain documents have been filed in the Court below which certified the fact that Sk. Asgar Ali was granted lease from year to year which was continued till his death in 1966. From 1966 till 1971 there has been no evidence that it was granted/renewed in favour of respondents 1 and 2. Therefore, the properties in question absolutely belonged to the State and it was optional for the State Government to grant lease in favour of any person whom they decided to lease it out. We wish to add here that the principle as laid I down under the provisions of Orissa Estates Abolition Act in so far as the settlement of land is concerned cannot be applicable for the Khasmahal properties. Therefore, we are constrained to hold that the plaintiffs cannot lay any claim over ‘Ga’ Schedule properties.
10. The appellants have claimed that the Lodging house situated in Mouza Baralapokhari measuring about 60′ x 25′ and 47′ x 23′ belonged to their father. We have already held that the properties over which the Lodging house and other houses/ shops said to have been constructed by defendants 1 and 2 were acquired by defendants 1 and 2 on lease basis at least from year 1971 onwards and, therefore, the plaintiffs’ claim in respect of those houses is bound to fail. From the evidence of respondents 1 and 2 it appears that they had constructed, repaired and renovated the Lodging house and other houses out of their own funds after they got the land from the State Government on lease. In this background we cannot allow the plaintiffs’ prayer for seeking partition of the rent amount collected from those houses.
11. So far as the compensation in respect of the lands acquired by the Transport and Railway Departments is concerned. it is submitted that the compensation amount was received by Sk. Asgar Ali under Exts. F and G. Therefore, we are at a loss to understand how the plaintiffs without verifying the records as to who received the compensation from the respective Departments laid a claim for apportionment of the compensation amount. From the trial court’s judgment it has transpired that the plaintiffs’ counsel appearing there had conceded on their behalf that in so far as properties in Schedules ‘Una’ and ‘Chha’ are concerned they do not claim for partition. Even otherwise, it is unequivocally stated that he cannot say who acquired the ‘Chha’ schedule properties nor there is any evidence regarding acquisition of the said properties by the appellants or the respondents. It is not known whether the house-hold properties over which the plaintiffs have claimed their shares are still in existence or not. In that event the claim for partition in respect of movable properties covered under Schedule ‘Chha’ is bound to be rejected.
12. Defendants 1 and 2 have specifically taken a plea that their father Sk. Asgar Ali made an oral gift in the year 1966 in presence of Kishori Mohan Das and others. It has been stated that besides the property covered under the registered gift deed executed by their grandfather Sk. Manohar Ali, their father Sk. Asgar Ali executed an oral gift for the rest of the properties. The details of the properties alleged to have been gifted away have not been described either in the written statement or in the evidence of D.W. 1. It is only stated that the oral gift was in respect of a homestead and 4 to 5 acres of agricultural lands. P.W. 1 in an unequivocal term admitted in his evidence that the properties covered under the oral gift were the properties of the father of defendants 1 and 2 or their grandfather. The oral gift is in respect of Schedule ‘Gha’ properties. No document was executed at the time of such oral gift. D. W. 1’s father Sk. Asgar Ali was ill and bed-ridden for a year prior to the oral gift. Hardly within two months after such oral gift Sk. Asgar Ali died. From this, it can well be presumed that at the time of such oral gift, the donor was not keeping good health. The donor had also not gone to the land to indicate defendants 1 and 2 as to which land he gave on oral gift. The land covered under oral gift is said to be in M. S. Khata No. 108 in Mouza-Baralapokhari. But D.W. 1 was unable to describe the extent of such land. At the time of oral gift the plaintiffs were not present. From the narration of evidence of D. W. 1 it appears that Sk. Asgar Ali expressed a desire to make an oral gift in favour of defendants 1 and 2. His evidence further certified that defendants 1 and 2 had constructed few houses on the lands belonging to Sk. Asgar Ali 4 to 6 years before execution of the oral gift. Therefore, those properties were given to them. From his evidence, therefore, we gather that Sk. Asgar Ali had an intention to give away the house-site to his two sons and on such house-site they had constructed houses. His evidence is not specific as to which properties other than the house site were gifted to defendants 1 and 2. Therefore, in this background we are unable to appreciate as regards the oral gift claimed by the defendants in respect of the lands other than the house site. The defendants 1 and 2 have relied upon a judgment reported in AIR 1998 Karnataka 39 in the case of Abdur Rahman v. Smt. Athifa Begum. On a careful reading of the judgment we have however gathered that one of the three essentials of a gift deed under Mohammedan Law is delivery of the possession of the gifted land by the donor to the donee. Registration of a gift deed does not cure the want of delivery of possession nor the mutation of names would be a valid substitute for delivery of possession. Mutation of names is not necessary to complete the transfer of possession. In the aforesaid decision strong reliance was placed on a decision reported in AIR 1995 SC 1205 Mahboob Sahab v. Syed Ismail. In this case peculiarly it is to be noted that there has been no evidence whatsoever adduced by the defendants that Sk. Asgar Ali gave delivery of possession of those lands. Further evidence is also lacking that the defendants accepted such gift. Defendants 1 and 2 have placed strong reliance on a decision reported in (1971) 37 Cut LT 226 : (AIR1971 Orissa 272) in the case of Ramchand Lakhani v. Sk. Umar Ali. In the aforesaid decision there was a claim of easementary right which was obstructed by the defendants. Therefore, plaintiff filed a suit of injunction for removal of such obstruction. This court held that in respect of a ‘Nainjori land’ right of access to the feeder road cannot be obstructed. Thus the Court held that in such a situation, an injunction may be issued for removal of the obstruction. In the aforesaid judgment, the nature of the land was not decided nor any evidence adduced that the owner was a lessee.
13. In Mohammedan Law there has been no presumption as to jointness. But in certain cases, the Court may uphold such doctrine of ‘jointness’. We have already discussed in the preceding paragraphs that there was no division among the parties. Rather the defendants in their written statement have agreed for partition of the properties measuring Ac. 5.00 and odd described in the Schedule. But from the fact, so emerged we have already held that defendants, have significantly failed to prove that the properties, apart from the registered gift deed, were given on oral gift to defendants 1 and 2. The plaintiffs have filed an application under Order 41, Rule 27, C. P. C. to admit the khatians prepared during the pendency of the appeal which were finally published on 15-3-1983. Since those R. O. Rs. are public documents, there could be no difficulty to mark those documents as exhibits on behalf of the plaintiffs. Defendants 1 and 2 along with their sisters were recorded as Co-owners. A plea has been taken by the defendants that they were in exclusive possession since the time of death of Sk. Asgar Ali. Therefore, the right has accrued to them on the doctrine of ouster. We, however, find that in final R.O.R. the plaintiffs have been described as co-owners. There has been no evidence worthwhile to establish the specific date from which the defendants 1 and 2 had asserted their own right in exclusion of the plaintiffs. Therefore, the claim of the defendants to have acquired properties on the plea of ouster is also bound to fail.
14. The appellants have filed another application ‘praying to admit the Information Slip Nos. 162 to 166 dated 6-9-2001 as an additional evidence. In the said Information Slip the Sabik plot numbers and the corresponding Hal plot numbers have been noted. In the original plaint only Sabik plot numbers have been mentioned. But in the mean time the settlement operation has already been completed and the present plot numbers noted in the final khatian cannot be linked up with the Sabik plot numbers. In the original ‘Kha’ Schedule the plaintiffs have described that Sk. Asgar Ali had Ac. 25.23 decimals as per the Sabik Plot numbers. In the meanwhile final settlement has already been completed and Hal plot numbers have to be inserted in the plaint Schedule. The plaintiffs for, that purpose must have to enclose corresponding Hal plot numbers.
15. The defendants in their written statement have described that the plaintiffs are having their rights over Ac. 4.70 decimals and Ac. 1.07 decimals in ‘Una’ and ‘Cha’ Schedule properties respectively. But the
defendants have specifically failed to prove about the lands claimed under oral, gift. Therefore, such property excluding the house-site are also liable to be partitioned. We have rejected the plaintiffs claim for partition in respect of ‘Ga’, ‘Gha’, ‘Una’, ‘Cha’ and ‘Chha’ Schedule properties. But, however, in respect of ‘Kha’ Schedule properties excluding the homestead properties and the properties gifted by Sk. Manohar Ali are to be partitioned and plaintiffs shall be allotted 3/8th share. Since the plaint Schedule is not clear and suffers from vagueness, therefore, we direct the plaintiffs to amend the plaint Schedule and incorporate the Hal Plot numbers excluding the properties gifted by Sk. Manohar Ali and also the homestead, the other houses and lodging house enjoyed by the defendants. The properties mentioned in Schedule ‘Ga’, ‘Gha’, ‘Una’, ‘Cha’ and ‘Chha’ shall also be deleted from the plaint Schedule.
16. The defendants have filed another application alleging that during the pendency of the appeal the appellants have sold away some lands in favour of Smt. Rama Devi Gupta, Smt. Geeta Devi Gupta, Smt. Sabitri Devi Gupta, Smt. Madhurani Gupta, Kumari Devi Gupta and Smt. Abhamani Mohapatra. Therefore, they should be impleaded as respondents. But we find it difficult in decreeing the suit in view of the vagueness of the plaint Schedule in absence of Hal Plot numbers.
17. In the aforesaid situation, we therefore, remand the suit to the learned Civil Judge (Senior Division), Bhadrak for deciding the plaintiffs’ right in the light of the discussions made above. The plaintiffs are, therefore, directed to take steps to amend the plaint Schedule and also to implead the subsequent purchasers during the pendency of the appeal in the suit. At this stage the prayer of the defendants to include the plaintiffs’ subsequent purchasers cannot be allowed.
18. After such amendment application is filed relating to the plaint Schedule by mentioning the corresponding Hal plot numbers in respect of ‘Kha’ Schedule properties and by impleading the subsequent purchasers, the defendants and the subsequent purchasers shall be at liberty to file written statement confining to such amendment. The parties shall be permitted to lead evidence only in respect of ‘Kha’ Schedule properties of the plaint. The properties which were alienated in favour of third parties during the pendency of the appeal shall as far as possible be adjusted to the plaintiffs’ share and in case the Court finds that they had sold excess lands beyond their share those sales shall be declared as invalid.
19. Accordingly, we set aside the judgment and decree passed by the trial Court and dismiss the prayer of the plaintiffs’ for partition of the properties mentioned in Schedules ‘Ga’, ‘Gha’, ‘Una’, ‘Cha’ and ‘Chha’ and remand the suit to the trial Court to decide the plaintiffs right over ‘Kha’ Schedule properties other than the house-site, lodging house other houses and shops enjoyed by defendants 1 and 2, the lands acquired by Transport and Railway departments and the lands gifted by Sk. Manohar Ali.
20. The appeal is partly allowed. Parties are directed to bear their own costs.