Bhagirathi Mohapatra and Others vs Gajendra Kumar Mohapatra

Sanju Panda, J.—In this appeal. Defendants 1 to 3 as Appellants have challenged the Judgment & decree dated 17.8.1990 & 5.9.1990 respectively passed by the Learned Subordinate Judge, Anandapur in T.S No. 22 of 1986. Respondent No. 1 as Plaintiff had filed the suit for partition.

The brief facts of the case, as narrated in the plaint, are as follows:

In the suit, the Plaintiff prayed for partition of the suit properties morefully described in the plaint schedule Ka, Kha, Kha/1 & Ga between two branches, one headed by him & the other headed by Defendant No. 1. The suit schedule properties were recorded in the names of one Gopal, Gouranga & Paramananda in the Settlement of the year 1990.

For better appreciation, the genealogy of the parties is given below:

GENEALOGY Gananath --------------------------- | | Baida Bhaba Gopal ------------------------ | | Gouranga Paramananda Bhagirathi (D-1) Chaitan ---------------------- Gajendra (plff.) | | Krushna Chandra Satyanarayan

Gopal died issueless. Gouranga & Paramananda possessed the Ka Schedule land jointly by constructing Kutcha house & were residing in the said house. They also jointly possessed other agricultural land described in Kha, Kha/I & Ga Schedules. It may be noted that ''Ka'' schedule land was the "Suar Jagir" land. The Raja of Keonjhar allotted the said land to Shri Shri Dadhibaman Jew (Lord Jagannatha) of Anandapur with respect to the service to the deity. As such, the said land was a service Inam land. No rent had been assessed on the said land. Gouranga & Paramananda had been worshipping the deity & performing the Seva Puja of the deity. Bhagirathi the son of Gouranga possessed the land along with Paramananda, the grand father of the Plaintiff jointly. However, they mutually separated the property i.e. movable & immovable land except the suit schedule properties. Paramananda died intestate leaving behind his only son Chaitan. Chaitan died leaving behind his son the Plaintiff, his widow Srimati Dibya & daughter Laxmi. During Hal Settlement Operation patta was granted. In the said settlement, Kha & Ga schedule properties were recorded in the joint names of Defendant No. 1 & Chaitan. Ka Schedule land was recorded in the name of Bhagirathi. Therefore, Plaintiff initiated a proceeding under the Orissa Estates Abolition Act to settle the Ka Schedule land in his name. However, the said proceeding was dropped. The settlement authorities erroneously recorded adverse possession of some persons in respect of some of the Ka Schedule properties. Hence, those persons had been impleaded as parties. However, the Plaintiff after the death of his father & Defendant No. 1 jointly possessed the suit schedule land & was getting their respective shares of produce from the agricultural land every year. While the matter stood thus, Defendant No. 1 in connivance with others misappropriated the agricultural produce & tried to disturb the Plaintiff. Therefore, the Plaintiff claimed his own half share in the suit schedule properties by intervention of Bhadralokas of the village. However, Defendant No. 1 did not agree for the said settlement of dispute by the village Bhadralokas. As the matter was not settled, Plaintiff filed the suit for partition claiming half share in the suit schedule properties through the process of Court.

Defendant Nos. 1 & 2 contested the suit by filing their written statement on the plea that the allegations made in the plaint are false. As there was a previous partition by metes & bounds, no cause of action arose for the Plaintiff to file the suit. They challenged the genealogy filed by the Plaintiff on the ground that Ka Schedule property being Debottar property of the deity was not subjected to partition. On 12.12.1943 Paramananda resigned from his Suar Sebayatship of the deity & left the suit schedule house. Since then Defendant No. 1 & others are living in Ka Schedule property by remodeling & reconstructing the house. Bhagirathi had been performing the Seba Puja of the deity & enjoying the schedule Ka property since then to the exclusion of Paramananda, Chaitan & the Plaintiff. Therefore, in the Hal Settlement, Patta was granted solely in the name of Defendant No. 1. Hence, Plaintiff is not entitled to possession of any portion of the suit land. O.E.A., Collector dismissed the claim of the Plaintiff to record a portion of Ka Schedule land in his name. Defendant No. 1 had further stated that his residential house is standing over plot No. 4144 in Schedule Ka & some other persons are in possession of the other plots i.e. 4143 & 4145. Kha Schedule land was obtained exclusively by Gouranga while he was living separately from Paramananda by way of Nayabadi Patta. Gouranga died in the year 1924. Therefore, Paramananda had no right, title & interest over Kha Schedule land. Paramananda while living separately got some self-acquired property in his own name.

While the matter stood thus, the father of the Plaintiff who was working as Mukhtar impleaded his name in respect of the suit schedule property at the back of Defendant No. 1 who was an old & sick person living in the locality. His two sons are living far away from the village at their working place. As such, Plaintiff is not entitled to any share from the suit schedule property & the suit is liable to be dismissed. He had further pleaded that in respect of Ga Schedule property separate possessory rights were indicated in the Hal Settlement in the year 1975 & Ac.0.04 decimals of land described in Ga Schedule land had been obtained as Jyesthamsa by the father of Defendant No. 1. Defendants had given their own genealogy which is quoted below:

GENEALOGY Lata Kusa ----------------------------------------------- | | Lata Baidyanath Lata Gananath --------------------- ----------- | | | | Gobinda Bhaba Gopal Adopted son Late Bhaba ------------------- | | Lata Gouranga Late Paramananda ---------- ------------- | Bhagirathi (D-1) Late Chaitan ---------------------------- | | | | wife Gajendra Late Laxmi Srimati (Plaintiff) Saraswati daughter

Defendants 4 & 5 respectively are the mother & sister of the Plaintiff. They filed their written statement supporting the claim of the Plaintiff. However, Defendants 4 & 5 were set ex parte & other Defendants had been set ex parte without fling their written statement.

On the above facts, the Learned Subordinate Judge formulated five issues for possession of the respective claim of the Plaintiff & the Defendants. Out of which, issue Nos. 2,3 & 4 are extracted below:

Issues

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Are the Defendants are the exclusive owners of Ka & Kha schedule property?

Is the Ga schedule property previously partitioned between the ancestors of the Plaintiff & Defendants & if the same is liable to be partitioned?

Is the Plaintiff entitled to the share claimed in the Ka, Kha & Ga schedule property?

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The Learned Subordinate Judge considering the documentary as well as oral evidence adduced by the parties came to the conclusions that the Ka & Kha schedule properties were not the exclusive properties of Defendant No. 1 & Ga schedule properties had been partitioned earlier. So far as Debotar properties were concerned, the same could be partitioned between the Sebaks for separate possession i.e. for the limited purposes. Therefore, the Plaintiff was entitled to carve out his share from the suit schedule properties & he would get half share of the suit schedule properties along with his mother & sister & Defendant No. 1 alone with his sons & others would get the other half. Neither of the parties would be entitled to transfer his share in Ka schedule property to any outsider. On the said finding the Learned Subordinate Judge decreed suit on contest against Defendant Nos. 1 & 2 & ex parte against Defendant Nos. 3 to 14 without cost & directed to partition the property amicably in 2 equal shares between the parties one share be allotted to the Plaintiff & Defendants 4 & 5 & the other be allotted to Defendants 1 to 3 & the same shall be allotted within 3 months, in default, the shares may be allotted through process of Court by depositing an amount of Rs. 300 towards costs of the commissioner & the commissioner while allotting the same would respect the convenience & previous possession, if any, concerning any of the suit schedule properties. Aggrieved by the said Judgment & decree, the Defendants have filed this appeal.

The Learned Counsel for the Appellants contended that it is the admitted fact of the parties that the Ga schedule property was jointly acquired by grant of Patta to Gaurang & Padmanava who amicably divided the same as per Ext.B series during current settlement operation in the year 1975. However, the Court below did not give any finding on the said fact & came to a conclusion that the said property was the joint family property & liable for partition & held that the said property had not been partitioned earlier. So far as Ka schedule properties are concerned, the said property belongs to the public deity having intermediary interest & the same vested with the State with effect from 6.9. 1969. The claim of the Plaintiff to settle the said property in his name was rejected by the Collector under the Estates Abolition Act ignoring the bar of jurisdiction of the civil Court & without considering the same, the Learned Civil Judge illegally decreed the Plaintiff''s suit holding that he was entitled to half share in the suit schedule properties. The land belongs to public deity & was also not partible. So far as Ext.A is concerned which was the order of erstwhile Ruler of Keonjhar in the year 1943, the same was marked as exhibit without objection of the Plaintiff. The Court below should not have discarded the same as it was not document was marked as exhibit without objection. From the pleadings & the evidence adduced by the parties, it is clearly proved that Ka & Kha schedule properties are separate properties of Defendant No. 1''s father & the same was mutated in the name of Defendant No. 1 after the death of his father through the mother-guardian as he was a minor at that time. Ga schedule land was recorded in the name of the minor Defendant No. 1 along with Paramananda, the grand father of the Plaintiff. Therefore, joint recording of Ga schedule property in the names of Defendant No. 1 & Paramananda could not be held that the properties are joint in character when the parties are in possession of the same separately for convenience for more than 60 years. On the above grounds, the Learned Counsel for the Appellants submitted that the impugned Judgment & decree are liable to be set aside.

Respondent-Plaintiff filed his written note supporting the finding of the Trial Court & admitted the fact that he had filed a proceeding under the Orissa Estates Abolition Act for Ka schedule property which was rejected & the same property belongs to the public deity having intermediary estate. The same vested with the Sate & was dedicated to the deities & the same was enjoyed by the ancestor of the parties. In view of the same, the Respondent is entitled to half share in the said properties which are homestead land. Since Kha & Kha/1 suit land are joint properties of the parties, there was no specific evidence according to the records to establish that the same were separate properties of Defendant No. 1 ''s father. Therefore, he is also entitled to the said properties.

On the above submissions, this Court has to examine whether Debotar property i.e. Ka schedule property is the absolute property of the deity & the same was Inam property & the person who is doing Seva Puja is entitled to get the same, whether, if the properties already adjudicated by the competent authorities alter abolition of the O.E.A. Act, the said question can again he raised in the Civil Courts & whether, if the parties have already separated the properties for convenience & possess for more than last 40 years, whether the same property shall be partitioned again.

Exts. E, F, G, H, J & K, the R.O.R & the Sabik Patta show that the parties are in possession of the land since 1915. In the case of Dukhi Dibya and Others Vs. Landi Dibya and Another, while holding that there was no partition by metes & bounds, basing on the materials available on record, this Court was inclined to agree that there was separation of status. Living in the same locality, the three branches separated in residence, the shares were ascertained in the Revenue papers, they started carrying on separate money-lending business, several properties were acquired in the names of different members of the family branch-wise. From the fact that such conduct continued over a period of about forty years, it can be inferred that there had been separation of status among the branches.

Considering the said principle, in the present case since the parties are in possession of the land separately & their names have been recorded in the Sabik Patta & the ROR separately since 1915 i.e. more than 60 years, this Court is inclined to hold that there was separation of status among the parties.

So far as Schedule Ga property is concerned, admittedly the same is Debottar property & it was recorded in the name of the deity. After enactment of the Orissa Estates Abolition Act, the Plaintiff filed an application before the authority to record his name in OEA Proceeding No. 361 of 1976-77 which was rejected by the Tahasildar, Anandapur, the certified copy of which is marked as Ext.P. As per Section 39 of the Orissa Estates Abolition Act, 1951, there is a bar to the jurisdiction of Civil Courts in certain matters in respect of the order passed under Chapters II to VI of the Act. Here, the order passed by the authority is under Chapter IV to VI. As per Ext.P, under Chapters II to VI the same has not been challenged by the Plaintiff in the higher forum. Hence, the same is confirmed. The said question cannot be re-agitated in the present suit. The finding of the Trial Court, in respect of Ga schedule property that the Plaintiff along with his mother & sister would get 1/2 share of the suit schedule properties & Defendant No. 1 alone with his sons & others would get the other half, is set aside.

The first appeal is allowed accordingly. No costs.