Parbati
Devi Vs. Purna Patra & Ors [1996] INSC 1594 (11 December 1996)
K. Ramaswamy,
G.T. Nanavati
ACT:
HEAD NOTE:
O R D
E R
Substitution
allowed.
This
appeal, by special leave, arises from the reversing judgment of the High Court
of Orissa in Second Appeal No.8/75, dated 2.8.1978. The admitted position is
that in Suit No.29/23 of 1937 in the Court of Small Causes, execution was laid
in M.S. No.217/37. 1/4th share of the property bearing Touzi Nos.2498 and
2503/354 was brought to sale on 16.2.1938, One Babu Suryanarayan, a practicing
advocate of that court, had become the auction purchaser. He had the possession
of the 1/4th specified share therein from the court. Subsequently, h sold the
self-same property by a registered sale deed in 1940 to one Hemamali Devi
daughter of another practicing advocate. Hemamali Devi in turn sold the
property to the appellant in 1950 under Ex.2(A), dated 14.10.1950. On the basis
thereof , the appellant filed the suit for partition. The respondents hand
purchased the property and other properties from the judgment-debtor in the
suit. They disclaimed the purchase made by Babu Suryanarayan and his sale in favour
of Hemamali Devi and further sale in favour of the appellant. thus it is a case
of total denial of the title of the appellant. The trial Court decreed the suit
and the appellate Court confirmed the same for partition of 1/4th share and
delivery of possession by metes and bound by passing a final degree. The High
Court reversed the said decree primarily on two grounds, viz. that there is no
proof of possession of the property delivered under the court sale, and that
the appellant has not proved what extent of the land they had purchased. Under
these circumstances, the appellant cannot seek possession by partition of the land
. The view taken by the high Court is clearly illegal. It is seen that the Sale
Certificate issued by the court clearly indicates the particulars of the lands
mentioned as under;
"1.
Touzi No.2498 - Thana No.214, Mouza - Baharabishabar in District Cuttack, P.S.,
Thana and Sub- registrar Cuttack Sadar, Ph. Bakhrabad in Khata No.431 - Area -
Ac.0.19 - rent - Rs.0.12.6. From this four annas share of the defendant -
debtor is Ac.0.04 -7 Kadis rent Rs.0.3. 2-1/2. This land is auctioned at a sum
of Rs.4/- Schedule Khasada No.1609 .... Ac.9.19. Rs.9.4.0 annas share of the
defendant debtor Ac.0.04 Kadis 0.07.
2. Touzi
No.2502/354 - Thana No.214 in District Cuttack, P.S. and Thana and subregistrar Cuttack Sadar Ph. Bakhrabad,
Mouza Baharabisnabar, Khata No.894 - Area Ac.0. 170 Dec. - rebd Rs.0.9.3. From
this the share of the defendant-debtor and his brother is eight annas
(Rs.0.3.0) Area Ac.0.84 Dec. 10 - Kadis - rent - Rs.0.4.7-1/2 which is
auctioned at a price of Rs.20/-.
Description
From the Tafsil No. 811 Ac.0.170 Dec. the 4 annas share of this
defendant-debtor is Ac.0.42 dec. 5 Kadis." The same was sold with
description of boundaries in the sale made in favour of Hemamali Devi and also
in the subsequent sale to the appellant under Ex.2 (A). Thus it is clear that Babu
Suryanarayan had purchased the 1/4th share in the above described property.
Thereby he became a co- owner with other 3/4th shareholders whose property was
purchased by the respondents. The High Court also is clearly in error in
holding that there is no proof of possession.
Since
the appellant had sought summoning of the warrant of delivery of possession,
which was not available, the court register was summoned which contained an
entry regarding delivery of the possession. No doubt the description of the
property delivered was not mentioned in the delivery warrant. When the entry
maintained in the court register of delivery of possession is read with the
sale certificate issued by the court, it is obvious that what was delivered to Babu
Suryanarayan, a practicing advocate, was the property mentioned in the sale
certificate. The property was leased out and rent was realised. Thereby he
became the co- owner. The appellant being successor-in-interest having
purchased the self-same property, had become co-owner along with the
respondents. Thereby the suit for partition was rightly decreed by the courts
below.
The
appeal is accordingly allowed. The judgment and decree of the High Court stands
set aside and that of the trial court as confirmed by the appellate Court stand
confirmed. It is open to the parties to proceed with the execution of the
decree in filing an application for passing a final decree and take further
steps according to law. No costs.
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