Judgment:
Dipak Misra, J.
1. Defendants 3 to 6 are the appellants challenging the judgment and decree passed in T.S. No. 59 of 1980 by the learned Subordinate Judge, Jajpur wherein he has preliminarily decreed the suit for partition in respect of A. 4.93.3 links of land.
2. To appreciate the real controversy, it is essential to indicate the admitted genealogy showing the relationship between the parties:
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Dhani
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Jagannath Upendra
(extinct) (died in 1976)
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Panchanan Bamdev Dasarathi Suma Uma Fula
(Plaintiff) (D-1) (D-2) (D-7) (D-8) (D-9)
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Krushna Niranjan Bishnu Prahallad
(D-3) (D-4) (D-5) (D-6)
As per the plaintiff, Dhani the common ancestor was the owner in possession in respect of Ac. 9.47, 1 kadi 12 Biswas of land. As Jagannath's branch became extinct, Upendra became the sole successor in or about 1930. During the period between 1929 to 1974, Upendra acquired nearly 9 1/2 acres of land in his name exclusively. In the year 1972, as there was dissension between the family, partition was done by mutual agreement. After separation defendants 1 and 2 as plaintiffs instituted, Title Suit No. 38/1977 seeking the relief of partition against the present appellant and others. In the said suit all the properties belonging to the family were covered except 4.97.3 links which is the subject matter of the present suit. It has been alleged in the plaint that the aforesaid property was not included in the hotchpot on the ground those properties were gifted by Upendra in favor of present defendants 3 to 6, sons of defendants Nos. 1 and 2. The plaintiff challenged the validity of the gift deeds in favour of defendants 3 to 6, on the ground that the properties covered under the said gift deeds are partly ancestral and partly self-acquired with the aid and assistance of the joint family nucleus and therefore, ignoring his interest, Upendra could not have gifted in favour of said defendants
3. Defendants 3, 4 and 5 filed a joint written statement resisting the claim of the plaintiff. The defendant No. 6, being a minor was represented by the G.A.L. Other defendants chose not to contest the suit. The contesting defendants have taken the stand that the gifted properties are the self-acquired properties of Upendra and he had complete authority to gift the same. The properties having been rightly gifted are not available for partition. That apart, a stand has also been taken that in the written statement in the earlier suit, the present-plaintiff who was the defendant there in had abandoned the claim in respect of the present suit schedule properties and therefore, the suit is barred by the principles of constructive res judicata. The plea of limitation has been also canvassed as the suit to set aside the deed of gift has not been brought within the period of limitation from the date of knowledge. Immense emphasis has been laid on the findings of the earlier jugment.
4. The learned Subordinate Judge, presently-Civil Judge (senior Division), Jajpur frame the following issues:--
'1. Is the suit maintainable?
2. Has the plaintiff any cause of action to file the suit?
3. Are the suit properties liable to be partitioned?
4. Is the deed of gift dated 30-7-1974 executed by Upendra Misra in the names of defendants Nos. 3 to 6 valid transaction?
5. Are the defendants Nos. 3 to 5 bound by the decree in T.S. No. 38 of 1977?
6. Is this suit barred by res judicata in view of T.S. No. 38 of 1977?
7. To what share and extent of property in suit the plaintiff is entitled?
8. To what relief, if any, the plaintiff is entitled?'
5. The plaintiff examined three witnesses including himself. No document was brought in evidence on his behalf. The defendant examined three witnesses and series of documents have been brought on record. The learned trial Judge in respect of issue Nos. 3 to 4 recorded the findings that the suit properties are a part and parcel of the ancestral properties belonging to the family. He has also held that even assuming that the suit properties were the self acquired properties of Upendra those were inseparably blended with the ancestral properties and it was not open to him to gift the said properties in favour of defendants 3 to 6. A further finding has been recorded that by virtue of execution of 'Ekrarnama' (Ext. A) and 'Panchayat-Patra' (Ext. B) the plaintiff could not have relinquished his right and more so, the said documents were never acted upon. On the basis of the aforesaid findings, the learned trial Judge arrived at the conclusion that the plaintiff was entitled to 7/24 share in the suit properties and the gift by Upendra could not be allowed to interrupt inheritance.
It is relevant to mention here that the court below answered the issues 1 and 2 in favour of the plaintiff and with regard to issue Nos. 5 and 6, the binding nature of the decree in T.S. No. 38/77 and the suit being barred by principles of res judicata observed that they were not pressed. Feeling aggrieved by the aforesaid judgment and decree the contesting defendants have preferred this appeal.
6. Sri B. Routry, the learned counsel for the appellant has contended that the finding of the learned trial Judge that the contesting defendants had not pressed the issues Nos. 5 and 6 is absolutely erroneous inasmuch as they had taken such a stand in the written statement had adduced evidence in that regard by bringing the previous judgment passed in T.S. No. 38/77 on record, and there was no reason not to press the same. It is also highlighted by Sri Routrary that in the previous suit the prayer for partition in respect of the present suit properties was not pressed and a finding had also been given that Upendra had some self-acquired properties. In view of these findings the recording by the learned trial Judge that issue Nos. 5 and 6 were not pressed is absolutely erroneous and the same has been done under a misconceived notion. The learned counsel has also urged that the approach of the court below in putting the onus on the defendants that the property was the self-aquired property though as required under the, law he who claims a property to be joint family property has to discharge the initial onus that there was available nucleus from which the acquisition of the item of property would have been made, and only thereafter the onus shifts to the party who advanced the proposition that the individual had sufficient independent funds of his own out of which the acquisition was possible. It is submitted that as the plaintiff has not been able to establish the existence of available nucleus the onus should not have been cast on the defendants. It has been further canvassed by Sri Routry that the delineation of Exts. 'A' and 'B' by the learned trial Judge is erroneous and the said documents should not have been discarded in totality and should have been utilised for collateral purposes.
7. Sri R.C. Mohanty, the learned counsel for the respondents, supporting the judgment passed by the trial court has contended that as the learned trial Judge has recorded issues 5 and 6 were not pressed, it should be regarded as truthful expression of the proceedings and the defendants should be bound by it. In any case, as submitted by Sri Mohanty, the principles of res judicata would not be applicable as the plaintiff who was the defendant No. 1 in the earlier case had not pressed for adjudication in respect of the properties covered under the disputed deeds of gift and therefore, there being no adjudication of the lis concept of res judicata is not attracted. It has been strenuously canvassed by Sri Mohanty that in absence of any positive evidence from the side of the defendants to substantiate the plea of self-acquisition by Upendra, it is to be deemed that the properties in question were not self-acquired properties and as such available for partition. He also supports the finding with regard to the interpretation of Exts. A and B by the learned trial Judge and submits that the said documents were never acted upon and they cannot be utilised for any other collateral purpose.
8. On purusal of the judgment, I find the learned trial Judge has not dealt with issue Nos. 5 and 6 observing that they were not pressed. This has been seriously challenged by the learned counsel for the appellant. In the memorandum of appeal, a specific ground has been taken challenging the delineations of the learned trial Judge on the ground that there has been a specific plea in the written statement and it has been pleaded in categorical terms in the written statement that the plea of the present plaintiff in the previous suit with regard to availability of sufficient nucleus out of which the properties were acquired by Upendra has been negatived and in view of this, non-pressing of the issues is neither possible nor correct. It has also been urged in the memorandaum of appeal that the learned trial Judge has erroneously framed issue No. 5, whether defendants 3 to 5 were bound by the decree in the previous suit, whereas the issue should have been whether the plaintiff was bound by the judgment and decree passed in T.S. Nos. 38/1977. The learned counsel for the appellant have also highlighted that to prove their plea of res judicata they have brought the earlier judgment and decree on record as Exts. J and J/1 and therefore, the recording by the learned trial Judge that the issues were not pressed is absolutely erroneous and exposes the defect which is fundamental in nature. On purusal of the written statement, the evidence brought on record, both oral and documentary, I am of the considered view that there could not been an occasion for not pressing the aforesaid issues. There is nothing on record to accept the said recording. The matter could have been different if a memorandum to that extent duly signed by the counsel would have been kept on record. In view of the overwhelming materials on record to agitate the aforesaid, issues, it is difficult to accept the recording made by the learned trial Judge. In such a situation the matter would have been remanded to the trial court to decide the issues on the basis of the materials on record with a further direction to frame the issue No. 5 appropriately keeping in view the pleadings on record. But as the parties have been litigating for a considerable length of time and they were aware of the real controversy I do not think it would be in the interest of justice to remand the matter on this score. True it is, the issue No. 5 has not been properly framed but as the pleadings and the evidence show parties were well aware what the issue meant and what was the arena of contest and what was the real controversy. It is well settled in law that even in absence of issues the court can record the findings if parties are aware about the real nature of controversy. In this regard, I may refer to a decision reported in the case of Kunju Kesavan v. M.M. Phip, AIR 1964 SC 164.
9. Keeping in view the aforesaid principles, 1 proceed to answer the two issues which in essence mean, whether the plaintiff was bound by the earlier decree and whether the suit is barred by the principles of res judicata in view of the judgment and decree passed in the previous suit for partition.
10. I have purused the judgment covered under Ext. J. Basudev and Dasarathi, the defendants 1 and 2 in the present suit were the plaintiffs. Panchanan, the present plaintiff, was defendant No. 1 and defendants 2,3 and 4 were the sisters. The suit was one for partition in respect of the properties described in 'Ka' and 'Kha' schedule to the plaint as there had been no partition by metes and bounds. In the said suit, as it appears, the properties gifted in favour of the sons of the plaintiff by Upendra were excluded. The defendant No. 1 (the present plaintiff) in the schedule 'A' of his written statement referred to the non-inclusion of property covered under the gift deeds. In the present plaint it has been admitted that the defendant No. 1 therein had taken the plea that due to non-inclusion of the land covered under the gift deed the suit was not maintainable. However, the said aspect was not pressed for adjudication. Thus, it become crystal clear that the plaintiff was well aware that certain properties were left out from the hotchpot on the plea of gift made by Upendra from his self-acquired property which he was entitled to do under law. The defendant No. 1 therein took a categorical and definite stand that the suit was not maintainable due to non-inclusion of the said properties on the ground that they were not self-acquired properties of Upendra as the same were bought from the funds available from the joint nucleus. It is worthwhile to note that the 'A' schedule properties in the written statement included the 'Kha' schedule properties of the plaint which were acquired in the name of Upendra Misra out of nucleus of the 'A' schedule properties of the family and therefore, the 'Kha' schedule properties were joint family properties. In the said suit a finding was returned that the 'Kha' schedule properties were self-acquired properties of Upendra. Taking into consideration, the nature of the pleadings and the controversy in issue it can be safely concluded that the present plaintiff had the occasion to contest that other part of the property mentioned in the Schedule 'A' to the written statement (the gifted properties) were joint family properties. In fact, a plea was taken but for reasons best known to the present plaintiff the same was not pressed. I find, the plaintiff in his evidence has admitted that he had taken the stand that the suit lands were not included in the hotchpot and it should have been included. He has also staled that he did not remember whether he had pressed for the inclusion of the said land. In course of hearing, Sri Mohanty appearing for the respondent submitted that the plaintiff was permitted to bring a separate action in respect of these lands. Nothing has been brought on record with regard to such permission/leave. In fact it is beyond comprehension when the suit was being contested on the ground of non-inclusion of certain property claiming the same to be joint family property, how it could be not pressed. If it was not pressed, it should be deemed to have been abandoned. It was open to the plaintiff to seek for adjudication on that score. He had the opportunity to raise the plea and contest it till its logical conclusion. From the surrounding facts it becomes luminously clear that the present plaintiff being aware of the situation accepted that the said properties were the self-acquired properties of Upendra. It is being contended that though the defence was available and taken, the same was not adjudicated, and therefore, it would not amount to res judicata. It is understandable if certain properties are left out by inadvertancc, a subsequent suit for partition may not be barred but a party being aware and taking a positive defence challening the maintainability of the suit and thereafter abandoning it, the same would amount to acceptance by him. He had, in fact, conceded that the property was self-acquired. In fact, the nature and character of the property held in the hands of Upendra could have been decided in the earlier suit. When Upendra had exclusive right in respect of the property or he had a share that could have been finally determined. A fresh suit for partition may be maintainable under a circumstance where decree passed in the first suit becomes un-executable but if any right or title could have been decided that would not be permissible. In this regard, I may refer to a decision in the case of Shyamsunder v. Chand Bai, AIR 1962 Raj 96, wherein it has been held as follows at page 97:--
'(5) Now the correct legal position in this regard, broadly speaking, seems to be that where an earlier suit for partition has ended in a decree, but for some reason or another there has been no partition by metes and bounds and it is not possible to give effect to that decree and the parties continue in joint possession even thereafter a second suit for partition does lie. The principle is that so long as a property is jointly held, until that time a right to partition continues intact, or, in other words a right to partition is a continuous and a recurring right and cannot be lost by mere non-exercise of it. Thus partition suits stand on a footing of their own, just, if I may say so, as redemption suits do. But this principle must be read as subject to an important qualification and that it is that any question of right or title which might have been finally decided in the earlier suit cannot be allowed to be reopened in the second suit except perhaps where a case of fraud or the like .........'
11. I also notice that the learned trial Judge has recorded a finding that Upendra had no separate source of income, and even if the properties were self-acquired, those were inseparably blended with the ancestral properties. It is noticed that in the earlier suit a finding was recorded in the following manner:
'In view of such failure of the defendant No. 1 to discharge the heavy onus of proof of acquisition of the disputed 'Kha' schedule properties out of the nucleus of the schedule 'Kha' property and or any other joint family, it has to be presumed that Upendra Misra in whose name the sale deed of those properties in dispute stand, it acquired the same out of his own separate earnings.'
In my view the finding in the present suit runs contrary to the earlier conclusion and the same is not permissible in the eye of law. I have no hesitation in holding that the present suit is barred by the principles of res judicata.
12. The whole scenario can be looked from another angle. In the Ekrarnama (Ext.A) present plaintiff had accepted that some properties had been gifted by his father. In the Panchayat-Patra, (Ext.B) the Ekrarnama has been referred. True it is, a suit was filed on the earlier occasion indicating that there has been no partition by metes and bounds, The same position in fact was accepted in a different way by the contesting defendant, the present plaintiff. In the present suit, the learned trial Judge has held the documents Exts. A and B were not acted upon and by that the plaintiff could not have abandoned his interest. The fact remains that the plaintiff has put his signature in the Ekrarnama. It may not amount to relinquishment of interest but it has to be construed keeping in view the stand of the present plaintiff in the previous suit. It makes it crystal clear that the plaintiff was aware of the gift deeds. It is not correct that he came to know for the first time on 11-11-1977. From Ext. B it appears that the plaintiff was aware that the gifted properties were excluded. In view of this there remains no iota of doubt that the plaintiff had accepted the position that it was the self acquired property of Upendra.
13. From the aforesaid analysis, the judgment and decree passed by the court below are unsustainable and are liable to be set aside, and accordingly I do so.
14. In the result, the appeal is allowed, the judgment and decree passed by the learned trial Judge are set aside. The suit filed by the plaintiff is dismissed. However, there shall be no order as to costs throughout the proceeding.