Bhagaban Panda and Another vs Dullav Panda and Others

V. Gopalaswamy, J.—The unsuccessful defendants 1 and 2 have preferred this appeal against the judgment and decree dated 31-7-1976

and 7-8-1976 respectively passed by the learned Subordinate Judge, Keonjhar, in Title Suit No. 17 of 1975 on his file, preliminarily decreeing the

plaintiffs'' suit for partition.

The relationship between the parties is shown in the following genealogical table:

Brajamohan Panda

Ballav Dullav Sanatan

(P-I=R-1) (P-2=R-2)

Bhagaban (D-

I-A-I)

Ratnakar (D-

2=A-2)

From the table it is seen that the plaintiff No. 1 Dullav (present respondent No. 1), plaintiff No. 2 Sanatan (present respondent No. 2) and Ballav

(the father of defendant No. 1 Bhagaban -- appellant No. 1 and grand-father of defendant No. 2 Ratnakar -- appellant No. 2) are brothers.

Defendant No. 3 (present respondent No. 3) purchased Ac.O.46 decimals of land from plaintiff No. 2 under the registered sale deed Ext. 4 dated

25-9-1974.

The plaintiffs case, briefly stated Is as follows:

The plaint ''Ka'' and ''Kha'' schedule lands are lands received as gift and they stand recorded in the name of Brajamohan Panda. The plaint ''Ga''

and ''Gha'' schedule lands are the raiyati lands of the said Brajamohan. All the above referred lands were the lands of the joint family comprising of

Brajamohan and his three sons, plaintiff No. 1, plaintiff No. 2 and defendant No. 1''s father. Defendant No. 2 is the son of defendant No. 1. The

parties and their ancestral dwelling house at Jyotipur. During the minority of the plaintiffs, their father Brajamohan died and after his death,

defendant No. 1''s father Ballav acted as the Karta of the joint family. The lands of the joint family as given in the plaint schedules are situated at

villages Adipur, Sadangi, Bhimapur, Kenduapada and Bada Amuni. In pursuance of an amicable arrangement among the three brothers for the

sake of conveniently possessing and enjoying the joint family lands, as suggested by the eldest brother Ballav, plaintiff No. 1 stayed at Jyotipur and

cultivated the lands of Adipur and Sadangi, while plaintiff No. 2 looked after the cultivation of the lands at Bhimapur, and Ballav himself was in

charge of the cultivation of the lands in village Bada Amuni and so far as the lands in village Kenduapada are concerned, all the three brothers

looked after them as they were tenanted lands. After some years the plaintiffs started demanding of their elder brother Ballav for partitioning of the

plaint schedule properties, but he evaded it on some pretext or other. In the meanwhile the gift lands of village Bada Amuni (schedule ''Kha/1''

lands) vested in the State Government under the Orissa Estates Abolition Act. In spite of the objection raised by the plaintiffs, defendant No. 1 got

his name solely recorded in respect of the plaintiff ''Kha/1'' schedule lands of Bada Amuni. Hence the plaintiffs were compelled to file the present

suit praying for a partition of the plaint schedule properties, including ''Kha/1'' schedule lands, into three equal shares.

Defendant No. 3 filed a separate written statement supporting the case of the plaintiffs.

The gist of the averments in the joint written statement filed by defendants Nos. 1 and 2 may be briefly stated thus :

After the death of Brajamohan, there was partition of family properties by metes and bounds amongst the three brothers -- Ballav (defendant No.

1''s father), plaintiff No. 1 and plaintiff No. 2 -- about 40 years ago and in pursuance of such partition, plaint ''Kha/1'' schedule lands situated in

village Bada Amuni were allotted to the share of Ballav, whereas the entire lands of village Bhimapur and half of the lands of villages Adipur and

Kenduapada were allotted to the share of plaintiff No. 2 and the entire lands of village Sadangi and Jyotipur and half of the lands of village Adipur

and Kenduapada were allotted to the share of plaintiff No. 1. After such partition the said Ballav (defendant No. 1''s father) acquired plaint

''Kha/2'' schedule lands out of his own earnings and so the same is his self-acquired property and after his death the defendants I and 2 continued

to enjoy the same as the absolute and exclusive owners thereof. As there was already a prior partition of the family properties about 40 years ago,

the present suit for partition i! not maintainable and is liable to be dismissed and that in any event the plaint ''Kha/ 1'' and ''Kha/2'' schedule lands

cannot be the subject-matter of partition.

From the averments in the pleadings, the evidence adduced by the parties, and the arguments advanced at the Bar, the following points arise for

consideration and decision in this appeal:

Whether there was partition of the joint family properties amongst the three branches prior to the date of filing of the suit?

Whether the suit for partition filed by the plaintiffs is maintainable.

Whether plaint ''Kha/ 2''schedule lands of village Bada Amuni are the self-acquired properties of Ballav (defendant No. 1''s father) and

therefore, ought to be excluded from partition?

Even if the suit for partition is maintainable, whether the plaint ''Kha/1'' schedule lands of village Bada Amuni are also available for being

partitioned amongst the three branches?

What reliefs the plaintiffs are entitled to?

Point No. 1: In support of their respective contentions parties have adduced oral and documentary evidence.

Plaintiffs 1 and 2 have examined themselves as P.Ws. 1 and 4 and they have also examined P.Ws. 2 and 3 in support of their case. Defendant No.

1 examined himself as D.W. 3 and two other witnesses D.Ws, 1 and 2 were examined on behalf of defendants 1 and 2. P. W. 3 claims to be a

tenant under the parties in respect of the lands situated in village Kenduapada. He deposed that he used to pay rent in respect of Kenduapada

lands to Ballav (defendant No. 1''s father) during his lifetime and after his death about 15 years ago, defendant No. 1 and plaintiffs used to collect

rent from him. The evidence of P. W. 2 shows that till the date of Ballav''s death about 15 years ago he used to visit village Jyotipur. It is in the

evidence of P. W. 2 that all the three brothers were together staying at Jyotipur and about-30 years ago Baliav had shifted with his family to Bada

Amuni. D.W. 1 is a U.D. clerk of the Sub-Registrar''s office who was examined to prove Ext.14, an entry in the Copy Register of his office in

relation to a sale deed. D.W. 2 is the only witness examined by D.Ws. 1 and 2 to depose on the aspect of partition. He stated in his cross-

examination that his village is 14 miles away from Jyotipur where the partition had taken place. He further admits that he is in no way related to the

parties nor does he belong to their caste. D.W. 2 does not come out with any acceptable explanation as to how he happened to be present at the

time of partition. D.W. 2 deposed in cross-examination that excepting on the occasion of Brata ceremony of defendant No. 1 he had not visited

their family during these last 40 years. He further admitted in cross-examination that he has no idea of the lands of the parties excepting those

situated at village Bada Amuni. Considering the nature of the evidence of D.W. 2 it is seen that he does not inspire the confidence of the Court

when he deposed that there was partition amongst the three brothers about 40 years ago.

That the joint family of the three brothers (plaintiffs 1 and 2 and defendant No. 1''s father) was having lands in villages Bhimapur, Adipur,

Kenduapada, Sadangi, Jyotipur and Bada Amuni is the case of both the parties. That since several years the family members of Ballav were

looking after the cultivation of the lands at village Bada Amuni while the family members of plaintiffs I and 2 were looking after the cultivation of the

lands at the other villages is not in dispute. That the only point of dispute is, according to the defendants, since the time of Ballav (defendant No.

1''s father) they were in separate possession and enjoyment of the lands at village Bada Amuni in pursuance of a partition which took place

amongst the three brothers about 40 years ago, whereas according to the plaintiffs it was only for the sake of convenient management of the

properties, as suggested by Ballav, the then Karta of the joint family, Ballav was looking after the lands situated at village Bada Amuni, while the

plaintiffs were looking after the lands situated in the other villages. For resolving the dispute, a careful scrutiny of the materials placed on record is

necessary.

Exts.3/1 to3/51 are the rent receipts in respect of the lands situated in villages other than Bada Amuni. Some of these rent receipts issued

subsequent to the alleged date of partition stand in the name of Ballav and others, even though they relate to villages Adipur, Bhimapur, etc., that is,

other than village Bada Amuni. So the recitals in these rent receipts do not support the case of defendants 1 and 2 that there was a partition about

40 years ago amongst the three brothers and that after such partition the defendants'' branch had no concern with the lands situated in the villages

other than village Bada Amuni. Ext. 4 is the Patta of the year 1971 for the lands at village Kenduapada and it stands in the names of all the three

brothers. Ext. 5 is the Khatian relating to the lands at village Adipur standing in the names of all the three brothers. Ext. 6 is the Parcha in respect of

Adipur lands recorded in the names of all the three brothers. Ext. 7 is the Rayati Patta regarding the lands at village Bhimapur recorded in the name

of Brajamohan Panda, the father of the plaintiffs and Ballav. Ext. 2 is the notice dated 25-11-1972 demanding of defendant No. 1 and the plaintiffs

to pay the arrear rent for the lands situated at village Kenduapada. Thus the documentary evidence adduced by the plaintiffs supports the case of

the plaintiffs that there was no prior partition of the suit lands by metes and bounds amongst the three branches. Defendants 1 and 2 have not been

able to adduce any documentary evidence to show that there was a partition of the suit properties by metes and bounds about 40 years ago

amongst the three brothers as alleged by them.

The plaint ''Kha/1'' schedule lands situated at village Bada Amuni being gift lands (Niskar Khewdra-dan) have vested in the State Government

by virtue of the notification dated 30-8-1963 under the Orissa Estates Abolition Act, 1951. Regarding the settlement of those lands there was

dispute between the parties in O.K.A. Lease Case No. 47/9 of the year 1971-72, wherein defendant No. 1 Bhagaban Panda figured as the

petitioner and plaintiff No. 1 Dullav Panda figured as opposite party No. 2 and plaintiff No. 2 Sanatan Panda figured as opposite party No. 1. Ext.

8 is the certified copy of the deposition of defendant No. 1 Bhagaban Panda in the said lease case. In the said deposition defendant No. 1 made

several admissions on which the plaintiffs have relied in proof of their case that there was no previous partition of the suit properties. While

deposing in the case, defendant No. 1 admitted that his father and opposite party No. 1 (present plaintiff No. 2) together came to village Bada

Amuni. The said admission is consistent with the case of the plaintiffs that is the first instance plaintiff No. 2 and Ballav (defendant No. 1 ''s father)

looked after the cultivation of the lands at village Bada Amuni for some years and that subsequently, Ballav shifted with his family to village Bada

Amuni. So the evidence of P. W. 2 that all the three brothers were originally residing at Jyotipur and it was about 30 years back Bailav had shifted

with his family to Bada Amuni sounds true. Defendant No. 1 had admitted in his deposition in the lease case that he got some compensation money

for the gift lands of Bhimpur. If really there was previous partition of the joint family lands as a result of which defendants'' branch was allotted to

lands of Bada Amuni and they had no concern with the lands situated in village Bhimpur, it is difficult to understand as to how at alt defendant No.

1 received some compensation amount in respect of the lands of Bhimpur. Defendant No. 1 had further admitted, while deposing in the lease case,

that last year he had received Rs. 100/- from the tenants of the Dan land (gift lands) of Kenduapada village from out of the total rental of Rs. 300/

- collected from the tenants. It is highly significant that defendant No. 1 admits to have received from the tenant Rs. 100/-, which is one third of the

total rental of Rs. 300/ - due from the tenants and the said admission betrays the falsity of the defendants'' plea that there was partition of the joint

family lands and subsequent to the date of partition they were not interested in the lands situated at Kenduapada. The said admission supports the

version of P.W.3, a tenant in respect of the lands of Kenduapada that he used to pay rent to Ballav Panda during his life time, and after his death

defendant No. 1 and plaintiffs used to collect rent from him. Hence, it is seen that the several admissions made by defendant No. 1 while deposing

in the lease case, which were referred to above, fully support the case of the plaintiffs that there was no partition of the joint family properties.

The defendants have stated in their written statement that 5.15 acres of land under Khata No. 40 in village Bhimpur (Item No. 1 of plaint ''Ka''

schedule) are sikkimi raiyati lands under the possession of Lembu Barik and his descendants. From the evidence of defendant No. 1 it is clear that

the lands of village Kenduapada are all tenanted lands and the tenants pay only cash rent and in one year they paid total cash rent of a sum of Rs.

300/- only. The evidence of the parties disclosed that the landed property at village Bada Amuni is the cream of the joint family properties. So it is

difficult to accept the defendants'' plea-that all the lands situated at Bada Amuni were allotted to their share in a partition while the lands in the other

villages were allotted to the shares of plaintiffs 1 and 2. There is reliable evidence to show that by the date of death of the plaintiffs'' father, the

plaintiffs were quite young and Ballav (defendant No. 1''s father) as the eldest brother, acted as the manager and Karta of the joint family after the

death of his father. So the probabilities in the case also lend support to the plaintiffs'' plea that as proposed by their eldest brother Ballav, the three

brothers were looking after the lands in the different villages according to convenience under an amicable arrangement and that is how the

defendants'' branch came to be in possession of the lands at village Bada Amuni.

Defendant No. 1 deposed in the suit that his father died about 22 years ago and that partition amongst the brothers took place 22 years prior

to the date of the death of his father. From his above evidence it is seen that according to the defendant No. 1, there was partition amongst the

three brothers about 44 years ago and if that version were to be true, the defendant No. 1''s branch must have been in separate possession of the

properties allotted to them since about 40 years. So the statement of defendant No. 1, while deposing in the lease case, that they were in separate

possession of the lands at Bada Amuni since the last 30 years contradicts his statement while deposing in the suit that the partition took place about

44 years ago. Defendant No. 1 states in his cross-examination that his statement in the written statement that the partition took place 40 years

back is no correct. From the above evidence of defendant No. 1 it is clear that he is making prevaricating statements even about the date of

partition and this is another circumstance which would suggest that the plea of defendants 1 and 2 that there is a previous partition of the family

property is not true. Admittedly, no scrap of paper is produced from the side of defendants Nos. I and 2 to show that there was partition of the

family properties as claimed by them.

Admittedly, at one point of time the three brothers Ballav (defendant No. 1''s father), Ballav and Sanatan together constituted a joint family.

Hence, in the absence of proof of division, by metes and bounds the presumption is that the family continued to be point and the presumption is

stronger as they happened to be brothers. On a careful consideration of the relevant material placed on record, as discussed above, agreeing with

the finding of the trial Court, we hold that there is no prior partition of the joint family properties by metes and bounds among the three brothers,

namely the plaintiffs and Ballav.

Point No. 2: In view of our earlier finding that there was no prior partition of the joint family properties, amongst the three brothers, it

necessarily follows that the present suit filed by the plaintiffs for the partition of the joint family properties is maintainable.

Point No. 3 : At this stage it would be convenient to deal with the issue whether the plaint ''Kha/2'' schedule lands of Bada Amuni are available

for partition. It is already found that there is no prior partition of the joint family properties and defendant No. 1''s father was looking after the lands

of Bada Amuni village in pursuance of an amicable arrangement between the parties. According to the defendants Nos. I and 2, the plaint ''Kha/ 2''

schedule properties were acquired by defendant No. 1 ''s father about 40 years ago. From the evidence it is seen that by the relevant date of the

alleged acquisition of plaint ''Kha/2'' schedule property, the three brothers constituted the joint family of which the eldest brother Ballav (defendant

No. 1''s father) was the manager and Karta. Admittedly, the joint family was having substantial landed properties, which were being managed by

Ballav himself by the relevant date. Even according to the defendants 1 and 2, defendant No. 1''s father Ballav was in possession and enjoyment of

16 to 17 acres of land in Bada Amuni village. There is nothing in the evidence to show that defendant No. 1 ''s father had any independent income

of his own apart from the income of the joint family properties. Defendant No. 1 failed to prove anything regarding the source of the consideration

amount for acquring the ''Kha/1'' schedule properties. Even the title deed relating to the acquisition of ''Kha/2'' schedule lands is not produced in

the Court. The evidence on record establishes that on the relevant date the joint family possessed sufficient joint family property which from its very

nature, can be taken to be the nucleus for acquiring the plaint ''Kha/2'' schedule property in question. The defendants 1 and 2 have not adduced

any reliable evidence to show that plaint ''Kha/2'' schedule property is the self-acquired property of their father. In view of the above

circumstances, agreeing with the finding of the trial Court, we hold that the plaint ''Kha/2'' schedule property is also the joint family property of the

parties and the same is, therefore, available for partition.

Point No. 4: The plaint ''Kha/1'' schedule lands of village Bada Amuni were settled with defendant No. 1 Bhagaban on a contest between him

and the plaintiffs in the above referred O.E.A. Lease Case No. 47 of 1971. Ext. C is the certified copy of the order in the said O.E. A. Lease

Case No. 47 of 1971 settling the plaint ''Kha/1'' schedule lands with the defendant No. 1. Relying on Ext. C, the learned counsel for the appellants

Mr. Mohanty contended that even if it is held that the present suit for partition is maintainable, the plaint ''Kha/1'' schedule properties, settled with

defendant No. 1 in the lease case, are not available for partition. The following observations made by the Additional Tahsildar, Keonjhar, in his

order dated 22-1-1974 (vide Ext. C, para 4) while settling the plaint ''Kha/1'' schedule lands with defendant No. 1 would clearly indicate on what

basis the Tahsildar passed the said order:

Taking into consideration the evidence on record and the facts stated in paragraphs 2 to 3 above I am inclined to hold that the petitioner only is in

exclusive possession of A 16.76 of land in village Bada Amuni under Khata No. 1. The objectors possess lands in mouza Bhimapur and the

petitioner possesses Bada Amuni lands by mutual understanding and amicable settlement or arrangement. Settlement of Bada Amuni lands with the

objectors will amount to putting them in a position wherefrom they can reap double benefits to the detriment of the petitioner and against equity

fairness and natural justice. As such, the objectors cannot be treated or held as co-sharers with the petitioner in this case. Their objection petition is

rejected.

On a perusal of the order of the Additional Tahsildar (Ext. C) it is seen that the same was passed on the finding that the objectors (the present

plaintiffs) cannot be treated or held as co-sharers with the petitioner (the present defendant No. 1) and further on the basis that defendant No. 1

was in exclusive possession of the land in question. From the evidence in the lease case the Additional Tahsildar found that the parties were

possessing the lands of the different villages on mutual understanding in pursuance of an amicable arrangement amongst the parties. The Additional

Tahsildar did not arrive at a categorical finding that there was a partition of the joint family properties amongst the three branches by metes and

bounds. On a consideration of the material placed on record this Court has found, agreeing with the finding of the trial Court, that there was no

partition of the joint family properties amongst the three brothers. In that view of the matter, the finding of the Additional Tahsildar that the plaintiffs

cannot be treated as co-sharers with defendant No. 1 is in conflict with other findings and as such is not sustainable in law. In the lease case

defendant No. 1 admitted that after the death of his father plaintiff No. 1 used to do Gahma Bheti and Pusya Bheti in respect of the plaint ''Kha/1''

schedule land and the significance of this admission was lost sight of by the Additional Tahsildar. The said admission reveals that the plaint ''Kha/1''

schedule lands are always treated as joint family properties, as has already been concurrently found by this Court earlier in this judgment and the

trial Court.

In support of his contention that the settlement of the ''Kha/1'' schedule lands with defendant No. 1 under the order Ext. C does not enure to

the benefit of the plaintiffs, Mr. S. K. Mohanty, the learned counsel for the appellants, relied on Srimati Malati Mishrav. Srimati Basanti Devi

(1988) I OLR 520, a Division Bench decision of this Court. In that case the relevant facts, briefly stated, are :

The petitioner and opposite parties 1 and 2 are daughters of the ex intermediary in respect of the disputed land vested in the State of Orissa in the

year 1962. The Tahsildar settled the land in favour of the petitioner by his order dated 7-7-1976. On 9-7-1976 opposite parties 1 and 2 filed an

objection claiming that the lands should be settled with them also, but the said objection was rejected by the order dated 1-9-1976. As against the

said order opposite parties 1 and 2 preferred an appeal before the S.D.O. which was allowed. Against the order of the S.D.O. the petitioner

preferred a revision before the Collector which was dismissed. Hence the writ application was filed, when this Court upholding the order of the

Tahsildar and quashing the orders of the S.D.O. and the Collector, allowed the writ application.

From the above facts it is seen that opposite parties 1 and 2 filed the objection on 9-7-1976, that is, subsequent to the order of settlement dated

7-7-1976 in favour of the petitioner. This Court found that as the objection by opposite parties 1 and 2 was not filed within the statutory period,

on that score also the appeal before the S.D.O. was incompetent. Then again opposite parties I and 2 did not file any appeal against the order of

settlement dated 7-7-1976, but instead they preferred the appeal only against the order of the Tahsildar dated 1-9-1976 rejecting their belated

objection. Hence on the ground that as the said order dated 1-9-1976 is not appealable under Clause (h) of the Lease Principle, this Court found

the order of the S.D.O. to be without jurisdiction and consequently the order of the revisional authority confirming the order of the S.D.O. also

was held to be null and void.

In the present case, in the lease case itself the plaintiffs had asserted their claim that as the plaint ''Kha/1'' schedule lands are joint family properties

the same ought to be settled with them also. In the above case, the contest was amongst three sisters for the property of their father, whereas

presently this is a dispute amongst the three branches of three brothers in relation to lands which are proved to be the joint family properties of all

the three brothers. The issues involved in both the cases are different and so the above referred decision of the Division Bench is not applicable to

the ''facts of the present case.

It is important to note that even in Smt. Malati Mishra''s case 1988 I OLR 520 (supra), it was held that one of the conditions for entertaining

an application for lease is that the applicant must be he who is entitled to file an application under the Orissa Estates Abolition Act (hereinafter

referred to as ''the Act''). In this context it is relevant to remember the background under which the Government evolved a set of principles for

entertaining and deciding all applications filed by the ex intermediaries. u/s 8-A(1) of the Act an ex intermediary is required to make an application

within the prescribed period from the date of vesting claiming the lands in respect of which he is entitled to settlement. Under Sub-section (3) of

Section 8 of the Act if an application is not presented in time the land in question vests in the State Government. It was found that there were

several ex intermediaries having genuine claims for the settlement of the lands but could not prefer their claims within the prescribed time, as a result

of which their lands vested in the State Government on with the object of protecting the genuine claims of such ex intermediaries, who could not

make an application u/s 8-A of the Act in time, the Government decided that the State would grant fresh lease of the lands to the very persons who

would have been otherwise entitled to retain the land had they applied in time, on realisation of arrear of rent and Salami equivalent to three years''

rent. So the persons who can apply for lease under the Lease Principles are only those persons who would have been entitled to retain the lands

had they applied in time u/s 8-A of the Act. For this reason only under the instructions issued by the Board of Revenue the applicant shall also file a

sworn affidavit that he is not now asking for advantages that would not have been available to him under the provisions of the Act and that no

application of his for settlement of land u/s 8-A of the Act was rejected before.

In Dileswar Patel and Others Vs. Mst. Binodini Patel and Others, , this Court in para 9 of its judgment observed thus:

The legal position is well settled that if settlement is made on the application u/s 8-A of the Act filed by one of the Intermediaries, benefit thereof

would accrue to the co-sharers even though they have not joined in the application. In the case of The State Vs. Madhusudhan Ram, , aDivision

Bench of this Court held that even though one of the co-sharers is found to be in khas possession of the agricultural land on the date of vesting,

such possession shall be deemed to be the possession of the entire body of co-sharers and the land in possession of one of the co-sharers shall be

deemed to be settled not only with him, but with all the shareholders owning the estate. This decision was followed in the cases of Pranakrushna

Pradhan and Another Vs. Harekrishna Pradhan and Others, , Smt. Gita Mohanty v. Gelhimani Betwa (1971) 1 CWR 605 and Banchhanidhi

Panda v. Mini Dibya 40 (1974) CLT 564.

No doubt the above decision deals with the provisions of Section 8-A of the Act, whereas the present matter deals with the grant of lease under

the Lease Principles. But then, under Clase (d) of the Lease Principles while granting the lease, the Tahsildar should satisfy himself that the

applicant is not asking for advantages that would not have been available to him under the provisions of the Act. So the proposition of law that if a

settlement is made on the application u/s 8-A of the Act filed by one of the intermediaries, benefit thereof would accrue to the other co-sharers as

well is of such relevance in the present context also. In the present case it is proved: that the plaint ''Kha/1'' schedule lands werel the joint family

properties of the plaintiffs andi defendant No. 1''s branch by the date of vesting of the said lands in the State Government under the Act. So after

such vesting if any one of the co-sharers, namely, plaintiff No. 1 or plaintiff No. 2 or defendant No. 1 had made an application u/s 8-A within time

for settlement of the lands, his application would have been allowed and the benefit of it would have accrued to the other co-sharers as well. So in

the present case, permitting the defendant No. 1 to exclusively enjoy the lease of plaint ''Kha/1'' schedule land, would be allowing him to enjoy an

undue advantage which would not have been available to him u/s 8-A of the Act and the same would be in violation of the Lease Principles.

Executive instructions were issued by the Government under G.O. No. 14399 dated 2-3-1964 to grant fresh lease of the lands to the concerned

persons who would have been entitled to retain the lands had they applied for in time, on realisation of arrear rent and salami, though under the

provisions of the Act lands in question would be treated as having been vested in the State Government. In the present case the settlement is under

the aforesaid Executive Instructions, which are commonly known as ""The Lease Principles"". As such settlement of the land was not under Chapter

II of the Act, the provisions of Section 39 of the Act are not attracted. If the Tahsildar passes an order settling the land contrary to the instructions

of the State Government, it means that while passing such an order, he had over-stepped his jurisdiction and the same is, therefore, without

jurisdiction. (See Motwali Sk. Kausar and Another Vs. State of Orissa and Others, ).

Hence, in the peculiar facts and circums- tances of the present case, we find that the benefit of the settlement of the lands with defendant No. 1

under Annexure-C would enure to the benefit of the plaintiffs as well ar.d such a rinding is consistent with the letter and spirit of the Lease

Principles.

For the reasons stated above, agreeing with the finding of the trial Court we hold that the plaint ''Kha 1'' schedule land is also available for partition

amongst the parties.

Point No. 5 : - In view of the above findings on the other points raised by the parties, we hold that the plaintiffs are entitled to the preliminary

decree for partitioning of all the plaint schedule properties as granted by the trial Court.

In the result, we find no merit in the appeal and the same is, therefore, dismissed, but in the circumstances of the case, without costs.

S.C. Mohapatra, J.

I agree.