Nimai Maharana and Another vs Basudev Maharana and Others

P.K. Mohanty, J.—The second appeal is by the plain tiffs against a decree of affirmance.

According to the genealogy given in the plaint, one Keshaba Maharana had two sons, namely, Madhaba and Madhu. Plaintiff No. 1 Nimai is the son and Plaintiff No. ;2 Laxmi is the married daughter of Madhaba. Madhu had two sons, namely, Arta and Dinabandhu. Defendants 1 and 2 are the sons of Arta while Defendants 3 to 5 are the sons of Dinabandhu. The suit land measuring 0.080 acre appertains to two khatas, namely, 342 and 323. Khata No. 342 comprises of plot No. 1644 with an area of 0.10 acre and plot No. 1644/2607 with an area of Order 20 acre. Khata No. 323 comprises of plot No. 1643 with an area of Order 50 acre. The suit land is a homestead land situated at Hundhebenta Sahi in the town of Puri.

The case for the Plaintiffs was that Madhaba had orally gifted half interest out of his eight annas share in the suit land in favour of Plaintiff No. 2 at the time of her marriage and since then she has been residing with her husband in the house standing on the suit land along with Plaintiff No. 1 and the Defendants. The bahel interest in the suit property having vested in the State Government both the parties applied for settlement of the suit land in their favour and rent schedules were issued in their names jointly. The Plaintiffs claimed partition of eight annas share of their father in the suit land. In the alternative it was contended that even if it is held that the Plaintiff No. 2 is not entitled to any share out of the suit property, the eight annas share of Madhaba might be partitioned and allotted in favour of Plaintiff No. 1 alone.

The suit proceed ex parte against the Defendants 1 and 2. Defendants 3 to 5 filed a joint written statement contending that the Plaintiff No. 1 is not the son of Madhaba, but he is the son of Madhu and that since his childhood he has been given in adoption to one Kulamani Maharana of village Inchal and hence he has no locus standi to claim partition of the suit land. The allegation that Madhaba had orally gifted half interest out of his eight annas share in the suit land was denied. It was also contended that Madhaba died in 1949 while living in a state of jointness with Madhu leaving behind him his widow Rupei and while the said Rupei was living jointly with the Defendants she died in the year 1955 and after her death the entire suit land devolved on the Defendants by survivorship and they are the owners in exclusive possession of the same.

The trial Court on a consideration of the evidence led by both the parties came to the finding that Plaintiff No. 1 is the natural-born-son of Madhu and that he had been given in adoption to Kulamani Maharana and as such he has no interest in the suit land. It also held that the widow of Madhaba died in 1955, that is, prior to the commencement of the Hindu Succession Act and as such Plaintiff No. 2 has no interest in the suit land. But it came to hold that on the basis of the settlement made jointly in favour of both the parties u/s 8A of the Orissa Estate Abolition Act they are entitled to 1/7th share each out of plot No. 1644 and 1644/2607 under khata No. 342. The suit so far as it relates to plot No. 1643 under khata No. 323 was dismissed as the rent schedule in respect of that plot was not produced. On appeal the learned District Judge confirmed the decision of the trial Court.

In this Court the Appellants have produced the rent schedule in respect of plot No. 1643 which appears to have been issued to both the parties and have filed a petition for admitting the same as additional evidence. In paragraph 3 of the plaint the Plaintiffs specifically alleged that after the vesting the suit land was settled in favour of both the parties jointly and that the rent schedules were issued to them. But there was no averment in the written statement either denying of affirming the said allegation. The assertion made in the plaint not having been denied it must be deemed to have been admitted by the doctrine of admission by non-traverse embodied in Order 8, Rule 5, CPC Code. It also appears that Plaintiff No. 1 stated during his examination in-chief that the suit land was bahel land and after vesting both the parties jointly applied for fixation of rent and accordingly rent, was fixed jointly in their names. This statement was not challenged by cross-examination. Both the Courts below overlooked the above evidence while dismissing the Plaintiffs'' claim in respect of plot No. 1643. Though on the above materials on the record this Court can pronounce judgment that all the three plots in suit were settled with both the parties jointly, yet I still consider in the interest of justice that it would be better to admit the rent schedule as an additional evidence so that judgment can be pronounced in a more satisfactory manner. The rent schedule being a revenue record its genuineness is beyond doubt. In view of the above facts and circumstances the learned Counsel appointing for the Defendants did not seriously oppose the prayer for reception of additional evidence. Accordingly, the rent schedule in respect of plot No. 1643 produced by the Plaintiffs in this Court is admitted as additional evidence and is marked as Ext. l/a

It will now be seen that all the three plots were settled with both the parties jointly and they acquired a new and independent title to the same. In the case of Jogendranath Mohanty and Another Vs. Jagannath Mohanty and Others, the Plaintiffs claimed title to the suit land not only on the basis of their purchase under the sale-deed (Ext.1) but also on the basis of the right acquired by them under the settlement from the State Government u/s 8A of the Orissa Estates Abolition Act after abolition of the intermediary interest. The Court held:

...when the intermediary interest in the present case was abolished, the previously existing rights of the intermediaries with whomsoever it rested came to an end, by the settlement under Ext. 3, the Plaintiffs must be deemed to have acquired a new and independent title which is not in any manner connected with or dependent on passing of title or otherwise what might have occurred under Ext. 1.

All the three plots having been settled jointly in favour of all the parties, each of them is entitled to have 1/7th share therein, 8. In view of my above findings, the question as to whether Plaintiff No. 1 is the natural born son of Madhaba or Madhu and whether he had been given in adoption to Kulamani Maharana is not necessary to be decided and it is left open.

In the result, the appeal be allowed and the decision of the Courts below dismissing the suit so far as it relates to plot No. 1643 be set aside. Each of the Plaintiffs is entitled to have his 1/7th share in all the three suit plots partitioned through a Commissioner to be appointed by the trial Court. The Commissioner while effecting partition should maintain the present possession of the parties as far as practicable. The Plaintiffs are entitled to realise the costs of this appeal from Defendants 3 to 5. The costs of the final decree proceedings will be born by the parties according to their respective shares.

Appeal allowed.