Duryodhan Naik vs Ratnakar Naik and Others

G.K. Misra, C.J.—One Baladeb Naik had two sons Ratnakar (Defendant No. 1) and Duryodhan (Petitioner). Defendants 2 to 4 are the sons of Defendant No. 1. The suit was for partition of 4 schedule lands consisting of 87.77 acres and B schedule lands with an area of 1.90 acres. The trial Court decreed the suit for partition in respect of the B schedule lands which are raiyati lands. No appeal was filed against decree by the Defendants and so the matter became concluded and final. The Petitioner filed an appeal against the judgment of the trial Court refusing partition of the A schedule lands. Plaintiff�s case is that the A schedule lands were Bhogra lands belonging to the joint family of the parties ever since the time of their ancestors and he is entitled to a moiety by partition. In support of the Petitioner�s case the record of rights (Bhogra Parch a of village Kuarmal - Ext. 1) has been produced. The Petitioner has been recorded as the raiyat in respect of the A schedule lands. The defence case is that the A schedule lands are Bhogra lands belonging to the State. The family of Defendant No. 1 were in possession of the Bhogra lands from the time of their ancestors and after them Defendant No. 1 was acting as the Gountia of the village. In the year ,1961 the Gountia system was abolished and Defendant No. 1 had to surrender die Bhogra lands. According to a Press Communique issued by the State Government these Bhogra lands were distributed in a particular manner and the lands in possession of the co-sharers and other persons were to be settled with them on raiyati basis. In accordance with this arrangement a settlement was made whereunder the Petitioner got 16.14 acres and Defendants 1 to 4 respectively got 19.06 acres, 17.94 acres, 13.56 acres and 11.92 acres; The Grama Sabha was given 4.61 acres. Moreover tenants who were in possession were also settled with some lands. The contesting Defendants got a fresh title by the settlement and the A schedule lands were not available for partition as claimed by the Petitioner.

Both the Courts below have accepted the defence version and rejected the Petitioner�s case for partition in respect of the A schedule lands.

The only point for consideration in this appeal is whether the A schedule lands are partible. In a case of this nature the alternative cases which could have been advanced may be indicated. One class of cases would be that the Bhogra lands belonged to the State and the Gountia of the village was in enjoyment thereof towards his remuneration. In other words, the consideration for the service tenure was the grant of the land. When the service is terminated, the grant is resumed. Resumption means nothing other than taking back what was granted. If the State abolished the Gountia system, then in this case the entire lands would be resumed and the State would settle them as it chooses.

The second class of cases would be where the lands were raiyati lands of the Gountia�s family. They were impressed with the character of Bhogra when the Gountia assumed office. The rent payable by the Gountia�s family for the rayati lands are adjusted towards the remuneration of the Gountia in discharging his duties for collection of rent and other duties. In such a case, on the abolition of the Gauntia system and the service tenure, the resumption would result in assessment of the raiyati land with rent. What was granted in this case was the remission of the rent either in whole or in part and on resumption the rayati lands would be assessed to rent.

The success of the Petitioner would depend upon under what class of cases the present case falls. In the plaint itself the Petitioner did not plead that the disputed A schedule lands were raiyati lands of the family and they were impressed with the character of Bhogra by mere remission of rent during the tenure of the Gountia. The plaint merely averred that the disputed A schedule lands were joint family lands. The assertion that the lands were joint family lands does not sufficiently make out a case that the lands were raiyati lands. Mr. Das for the Petitioner Appellant laid great emphasis on Ext. 1 which shows that in respect of the Bhogra lands comprised in the A schedule the Petitioner was recorded as the raiyat. Doubtless the entry creates some probability that the lands might have been raiyati, otherwise there will be no such entry. But this is sufficiently whittled down by the fact of absence of pleadings and proof in the case that originally these properties were acquired by the family as raiyati lands.

That apart, under the law as prevalent in ex-Gangpur State all the Bhogra lands belonged to the State and no raiyati right could be acquired therein. In Ramadhyani�s Report, Volume III, at page 89 the following statement occurs:

The bhogra land of gaontias as well as ganjhus is not held in ryoti rights and if a gaontia or a ganjhu is evicted, the bhogra land passes to the next holder of the post.

This sufficiently clarifies the legal position that in Bhogra land there is no raiyati right and the alternative proposition which is generally applicable to some of the lands in Sambalpur district has no application to ex-Gangpur State.

Factually also it is remarkable to notice that the Petitioner filed an application when settlement of the Bhogra lands was made by the Collector. He did not object to carving out about 5 acres of land for Grama Sabha as was decided by the State Government. The Press Note No. 89 dated 13-4-1961 shows that about 5 acres of land are to be given to Grama Sabha. It would thus appear clear that the Petitioner consistently did not take the stand that the disputed A schedule lands are raiyati lands. On the footing that Bhogra lands are joint family properties he has been pushing forward his claim. It will appear also from the Gounti Parcha that Bhogra lands are not alienable nor partible.

On the aforesaid analysis we hold that the disputed A schedule lands were not the raiyati lands of the joint family of the Petitioner and Defendant No. 1 and they were Bhogra lands belonging to the State and were resumable by the State once the Gounti system was abolished. The A schedule lands are not partible. The Petitioner would, however, have his full title in 16.14 acres settled with him by the Collector. The observations of the Courts below that it was given to him by grace are not accurate.

In the result, the appeal fails and is dismissed. In the circumstances, parties would bear their own costs throughout.

P.K. Mohanti, J.

I agree.