NILAKANTHA NAIK v. ANANTA NAIK — 1973 DIGILAW 2 (ORI)

JUDGMENT : B.K. Ray, J. - Defendants 2 to 5 are the Appellants in a suit for partition. The genealogy given below which is admitted by the parties shows the relationship between them. Nari D-1 Madha D-8 Sahadeb D-9 Chinta D-7 Nailakantha D-2 Ananta Daitri P-1 Pandab P-2 Kartik D-6 Kashyap D-3 Gundu D-4 Laxmidhar D-5 2. The case of the Plaintiffs as made out in the plaint may be briefly stated as follows: The properties described in schedule Kha of the plaint were the ancestral properties of the family of the parties recorded in the name of Nari Naik. Some time after Nari?s death in jointness with his three sons the latter namely Defendants 1 and 8 and Kanhei separately possessed the Kha schedule property by mutual arrangement without effecting a partition by metes and bounds. Defendant No. 1 thereafter acquired the properties described in Schedule Ga and Gha of the plaint out of the joint family fund of himself and of Defendants 2 to 7. Defendant No. 2 thereafter out of the joint family fund of the Plaintiffs and of Defendants 1 to 7 acquired the properties described in Schedule Kha 1 of the plaint in his own name; the properties described in Schedule Kha 2 of the plaint in the name of his son Defendant No. 3; properties described in Schedule Ga 1 of the plaint in the name of his father Defendant No. 1 and properties described in Schedules Gha 1 and Gha 2 of the plaint in the name of Plaintiff No. 2. According to the Plaintiffs they are entitled to 1/18th share each in the properties described in Schedule Kha of the plaint and 1 6th share each in the properties described in Schedules Kha/1. Kha/2. Ga. Ga/1. Gha. Gha/1 and Gha/2 of the plaint. The further case in the plaint is that the lands which were in separate possession of Defendant No. 1 by mutual arrangement appertaining to Schedule Kha of the plaint were the subject matter of dispute between the Plaintiffs on one hand and Defendants 2 to 5 on the other in a proceeding u/s 145, Code of Criminal Procedure. These lands were in the custody of a Zamindar who was cultivating the same under orders of the Court. During the proceeding u/s 145 Code of Criminal Procedure the Zamindar deposited 50 maunds of paddy in Court. These lands were in the custody of a Zamindar who was cultivating the same under orders of the Court. During the proceeding u/s 145 Code of Criminal Procedure the Zamindar deposited 50 maunds of paddy in Court. After termination of the proceeding in favour of Defendants 2 to 5, they have taken delivery of the said paddy. The Plaintiffs therefore, claim 1/6th share each in this paddy also which has been included in schedule can of the plaint. 3. Defendants 6 and 7 in joint written statement have supported the case of the Plaintiffs. 4. Defendants 1, 8 and 9 in a joint written statement claim that the properties described in Schedules Ga and Gha of the plaint are the self-acquired properties of Defendant No. 1. In respect of other properties, they support the Plaintiffs? case. 5. Defendants 2 to 5 in a separate joint written statement claim that the properties described in Schedule Kha of the plaint were the self-acquired properties of Nari. Nari bread and brought up Defendant No. 2, his grand son through Defendant No. 1 and gave him in marriage while remaining separate from other members of the family in village Dhanurjoypur. At the time of marriage of Defendant No. 2 Nari out of the properties described in Schedule Kha of the plaint made an oral gift of A. 9.41 decimals of land in favour of Defendant No. 2. Shortly thereafter, Nari executed a plain paper document Ext. D in evidence of the oral gift. Since this gift Defendant No. 2 has been in exclusive possession of the aforesaid A. 9.41 decimals of land as a donee. Alternatively, it is claimed by Defendant No. 2 that if the gift in his favour fails, still he having been in exclusive possession of the aforesaid A. 9.41 decimals of land for more than the statutory period to the knowledge of other members of the family, has acquired absolute title therein by adverse possession. It is also pleaded that all the joint family properties not having been brought to hotchpot, a suit for partial partition does not lie. 6. Defendant No. 1 inspite of filing a joint written statement along with Defendants 8 and 9 claiming the properties described in Schedules Ga and Gha of the plaint as his self acquired properties, has not contested the suit. 7. The trial Court has decreed the Plaintiffs? 6. Defendant No. 1 inspite of filing a joint written statement along with Defendants 8 and 9 claiming the properties described in Schedules Ga and Gha of the plaint as his self acquired properties, has not contested the suit. 7. The trial Court has decreed the Plaintiffs? suit for partition in respect of the properties described in Schedules Kha, Ga, Ga/1 and Gha of the plaint after negativing the case of gift made out by Defendants 3 to 5. It has held that the properties described in Schedules Kha/1 and Kha/2 of the plaint are the self-acquired properties of Defendant No. 2 and the properties described in Schedules Gha/1 and Gha/2 of the plaint are the self-acquired properties of Plaintiff No. 2. Regarding the share claimed by the Plaintiffs in the paddy described in schedule one of the plaint, it has disallowed the Plaintiffs? claim. 8. There having been no cross objection or an independent appeal by the Plaintiffs against the decision of the trial Court negativing their claim in respect of the properties described in Schedules Kha 1, Kha 2 and one or the plaint, the same has become final and conclusive. 9. Coming to the merits of this appeal. I would say that the Appellants? case of a gift in respect of A. 9.41 decimals of land appertaining to Schedule Kha of the plaint said to have been made by Nari in favour of Defendant No. 2, has been rightly disallowed. Ext. D. the document which is said to have been executed by Nari as evidence of the oral gift is an unstamped and unregistered document and cannot be admitted as a deed of gift. An oral gift also not being permissible under law, the claim of Defendant No. 2 in respect of A. 9.41 decimals of land on the basis of the oral gift cannot be allowed. The oral evidence led in support of the gift through the mouth of d.ws. 3. 4 and 5 is hopelessly unsatisfactory and contradictory. D.w. 4 says that the description of the lands to be gifted by Nari was noted in a piece of paper and those lands were gifted. But Ext. D does not give any description of the lands alleged to have been gifted. Ext. D comes from the custody of Defendant No. 2. 4 and 5 is hopelessly unsatisfactory and contradictory. D.w. 4 says that the description of the lands to be gifted by Nari was noted in a piece of paper and those lands were gifted. But Ext. D does not give any description of the lands alleged to have been gifted. Ext. D comes from the custody of Defendant No. 2. The material portion of this document is missing and therefore, it is not possible to say in which year this document was executed. Defendants 2 to 5 in their original written statement alleged that the gift in favour of Defendant No. 2 was made in 1936 but subsequently by amendment the year of gift was changed from 1935 to 1926. 10. Ext. 4 is an order dated 15-1-1941 granting mutation of the names of Defendant No. 8 and others in place of Nari Naik in respect of the Kha schedule lands of the plaint. If really Nari Naik had gifted A. 9.41 decimals of land out of these lands in favour of Defendant No. 2, the latter would have certainly objected this joint mutation in the year 1941. As per this mutation Defendant No. 8 and others were jointly recorded in respect of the Kha schedule lands. The explanation of Defendant No. 2 that this mutation was effected by practising fraud has not been established at all. 11. Therefore, in conformity with the finding of the trial Court, I hold that Defendants 2 to 5 have failed to establish their case of gift and hence on Nari?s death these lands devolved on his three sons, namely, Defendants 1, 8 and Kanhei, father of Defendant No. 9 and each of them has 1 3rd share therein. The 1 3rd share in these lands which devolved on Defendant No. 1 became the ancestral properties in his hand irrespective of the fact whether Nari acquired Kha schedule lands as claimed by Defendants 2 to 5 or these lands were the ancestral lands of the joint family in the hands of Nari. That being the position, the share of the Plaintiffs in these lands is 1/18th each. 12. The claim of Defendants 2 to 5 that they have acquired absolute title to A. 9.41 of land out of the land covered under Schedule Kha of the plaint by adverse possession has also, in my opinion, not been substantiated. That being the position, the share of the Plaintiffs in these lands is 1/18th each. 12. The claim of Defendants 2 to 5 that they have acquired absolute title to A. 9.41 of land out of the land covered under Schedule Kha of the plaint by adverse possession has also, in my opinion, not been substantiated. In support of the case of adverse possession, Defendant No. 2 relies upon Ext. C, a report by an Amin who at the instance of Defendant No. 2 demarcated A. 9. 41 decimals of land out the lands mentioned in, Schedule Kha of the plaint in the year 1961-1962. There is absolutely no evidence that this (sic) was effected with the densest of other members of the family. It is also admitted by D.w. 2, the Amin that ?it was not his function to note possession in respect of the lands demarcated by him. Therefore, Ext. C is of no consequence. The next series of documents relied upon by Defendant No. 2 is Ext. B series, the rent receipts. They do not show that they relate to A. 9.41 decimals of land claimed by Defendant No. 2. Admittedly Defendant No. 2 is a co-sharer along with other members of the family in respect of the lands described in Schedule Kha of the plaint. Therefore, the mere fact that Defendant No. 2 is paying rent in respect of the lands described, in Schedule Kha of the plaint cannot go to show the exclusive title or possession in respect of the same. 13. The Plaintiffs on the other hand rely upon two documents, Exts. 1 and 1 a. Ext. 1 a is an agreement executed by the sons of Defendant No. 1 including Defendant No. 2 to divide the lands in the two villages, namely, Dhanurjoypur and Sarisua which include the lands described in Schedule Kha of the plaint. Ext. 1 is another agreement executed by Defendant No. 1 which states that the lands appertaining to Khata No. 15 in village Dhanurjoypur with an area of 27 acres were divided amongst the sons of Nari Naik. These two documents, therefore, completely be lie the case of adverse possession of Defendant No. 2. P.w. 2, a common relation of the parties testifies that after the Sudhi of Nari?s wife, the sons of Madhab wanted to divide Kha schedule lands and accordingly Exts. These two documents, therefore, completely be lie the case of adverse possession of Defendant No. 2. P.w. 2, a common relation of the parties testifies that after the Sudhi of Nari?s wife, the sons of Madhab wanted to divide Kha schedule lands and accordingly Exts. 1 and 1 a were executed. There is nothing to disbelieve the testimony of this witness. III these circumstances, in agreement with the trial Court I hold that Defendants 2 to 5 have failed to make out their case of adverse possession also. 14. As has been stated earlier, the finding of the trial Court that the lands described in Schedules Kha 1 and Kha 2 of the plaint are the self-acquired properties, of Defendant No. 2, is not open to challenge in this appeal in the absence of any cross objection by the Plaintiffs. 15. The trial Court, however, has found that the lands described in Schedules Gha 1 and Gha 2 of the plaint are the self acquired properties of Plaintiff No. 2. In view of the case of the Plaintiffs themselves in the plaint that these properties are the joint family properties of Defendant No. 1 and his sons and grand sons, it is strange that the Court below has held that these lands are the self-acquired lands of Plaintiff No. 2. This finding of the Court below has, therefore, to be set aside. In the absence of any claim by Plaintiff No. 2 and in the absence of any evidence ?in support of such a claim, it must be held that these lands are the joint family properties of Defendant No. 1 and his sons and his grand sons in which the share of the Plaintiffs is 1/6th each. 16. In the result, the appeal is allowed in part and it is declared that the lands described in Schedules Gha 1 and Gha 2 of the plaint are the joint family properties of Defendant No. 1, his sons and his grand sons and the Plaintiffs? share therein is 1/6th each, that of Defendants 2 to 5 is 1/6th and that of Defendants 1, 6 and 7 is 1/6th each. The findings of the trial Court in respect of other items of properties in suit are confirmed. In the circumstances, the parties are to bear their own costs of this Court.