Brajabandhu Mohapatra vs Bhikari Charan Sahu and Others

S. Acharya, J.—Defendant No. 1 has preferred this appeal against the reversing decision of the Additional District Judge, Cuttack in Title Appeal No. 202 of 1974.

The Plaintiff, Respondent No. 1 in this appeal, instituted the suit for partition of the A schedule land in two equal shares between him and Madan, the original Defendant No. 1 in the suit. The Plaintiff based his claim for partition on his allegation that he was the adopted son of Madan.

Madan in his written statement alleged that he never adopted the Plaintiff and that the Plaintiff was all along living with his natural father and that the Plaintiff had no right, title and interest in the A schedule property belonging exclusively to Madan.

Admittedly, the A schedule property belonged to Madan as the same fell to his share in a family partition which was effected as per the registered partition deed dated 18-9-1967. During the pendency of the suit in the trial Court Madan died. The Appellant was substituted as Defendant No. 1 in place of Madan in the trial Court. On his appearance in that Court he merely adopted the written statement filed by the original Defendant No. 1 and did not file any additional written statement of his own. Pitabas, Defendant No. 2, admittedly is the uterine brother of Madan and natural father of the Plaintiff.

The trial Court found that the Plaintiff failed to prove his case of adoption and so he had no right, title or interest in the suit property. Mostly on the said finding the Plaintiff''s suit was dismissed by that Court.

The Plaintiff preferred appeal against that decision. In the appellate Court Pitabas (D. 2) filed a petition (dated 5-10-1975) stating therein that on the death of Madan the suit property entirely devolved on him in accordance with Section 8 and 9 of the Hindu Succession Act, 1956, he being a preferential heir to any other person in existence. In that petition he agreed that the suit property should be partitioned between him and the Plaintiff in equal shares.

In the appellate Court the finding of the trial Court that the Plaintiff was not the adopted son of Madan was not assailed by the Plaintiff-Appellant. It was however submitted on his behalf in that Court that applying the provisions of Order 41, Rule 33, CPC this appeal should be disposed of on consideration of all the facts then existing and the relevant legal consequences following from the death of Madan during the pendency of the suit. The appellate Court accepted that submission and applying its power under the said rule it held that on Madan''s death the suit property in its entirety devolved on Pitabas (D. 2), and as Defendant No. 2 agreed to partition the suit property between him and the Plaintiff, the same should be partitioned by metes and bound in two equal shares and one of the shares should go to the Plaintiff. It passed a decree to the above effect.

Defendant No. 1 has preferred this appeal against the said decision of the appellate Court.

It is contended on behalf of the Appellant that in view of the specific case put forward by the Plaintiff in his suit for partition the Court below was not legally justified in disposing of the appeal entirely on new facts and basis and in the manner aforesaid.

Law is well settled that it is open to the appellate Court to take notice of events and facts occurring subsequent to the institution of a suit and to modulate the relief in the suit in accordance with facts actually existing at the time of disposing of the suit. In this connection the decisions Sri Sri Sri Baldev Jew v. Baraju Sethi 1975 C.W.R 156, and AIR 1941 5 (Federal Court) , may be seen.

That the suit property described in schedule A of the plaint fell exclusively to the share of Madan (original Defendant No. 1 in the suit) is admitted by all and is not contested by the Defendants. It is also admitted that Pita has (D. 2) is the uterine brother of Madan It is conceded on behalf of the Appellant that on the death of Madan, Defendant No. 2 is his nearest preferential heir. So the suit property in its entirety has devolved on Defendant No. 2. Before the appellate Court Defendant No. 2 has in his petition agreed that the suit property may be partitioned between him and the Plaintiff.

Mr. Patra, the learned Counsel for the Appellant contends that the Appellant was substituted in place of Madan on the basis of his assertion that he was a legatee under the last will executed by Madan and so after the grant of probate in the probate proceeding O. S. No. 9/76 pending before the Subordinate Judge. Cuttack the suit property shall devolve on the Appellant. Accordingly it is prayed that the hearing of this appeal be stayed till the disposal of the said proceeding.

In the suit Madan did not state anything about any will executed by him. The Appellant on being substituted in place of Madan after the latter''s death merely adopted the written statement filed by Madan in the suit, but he did not file any written statement putting forward his claim to the suit property on the basis of any will executed by Madan. The Will also was not filed in the Court. No issue was framed on the above question. In the trial stage or in the appellate stage the question regarding the said alleged Will or the effect of the said probate proceeding was never agitated to be decided on merits. It is not known at what stage that proceeding is pending. Moreover, no petition to stop the hearing of the appeal in the lower Court or in this Court was and is filed by the Appellant. Rather, in this Court petition was filed on 7-7-1976 praying for the stay of further proceeding in O. S. No. 9/76 till the disposal of this appeal. On the above consideration, the above-mentioned oral prayer of Mr. Patra to stay the disposal of this appeal till the disposal of O. S. No. 9/76 has no merit and cannot be entertained.

Under Order 41, Rule 33, CPC the Court below was justified in taking into consideration the admitted facts then in existence and the legal consequences of the same and to dispose of the appeal on the said facts and materials before it. So the decree of the Court below directing partition of the suit property in two equal shares between the Plaintiff and Defendant No. 2 is correct and justified.

I do not find any merit in this appeal and it is accordingly dismissed, but in the circumstances there will be no order as to costs of this Court.

Appeal dismissed.