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2000 DIGILAW 244 (ORI)

DHRUBARAJA SINGH v. NILADRI SINGH

2000-05-02

P.K.MISRA

body2000
JUDGMENT : P.K. Misra, J. - Defendants 7 to 18 have filed this appeal against a confirming decision. 2. Pahilman Singh and Balamukunda Singh were the two sons of Hari Singh. One Baliar Singh is the son of Pahilman Singh, whereas Manohar, Laxman, Harihar, Krushna and Jagannath are the sons of Balamukunda Singh. Defendants 7 to 18 represent the main branch of Balamukunda Singh, whereas the heirs of Baliarsingh are Plaintiffs, and Defendants 1 to 6. 3. The disputed 'B' schedule property forms a part of 'A' schedule property. Suit is for declaration of title of Plaintiffs and Defendants 1 to 6 in respect of 'B' schedule property and alternatively, it is claimed that if it is found that there was no partition, the' A' schedule property may be partitioned giving half share to Plaintiffs and Defendants 1 to 6 and balance half to Defendants 7 to 18. The Plaintiffs claim that in a previous partition, apart from other properties, 'B' schedule property had fallen to the share of Baliar Singh. 4. The contesting Defendants (present Appellants filed written statement wherein, while not disputing about the partition in respect of other properties in other villages it is claimed that the entire 'A' schedule property had fallen to the share of Balamukunda Singh. It is further claimed that in the Bhogra Conversion Proceeding, the 'A' schedule property had been recorded in the name of Dhrubaraj Singh and Ors. including Baliar Singh, but the said Baliar Singh having died by the time of such settlement, the branch of Baliar Singh did not acquire any right in respect of 'A' schedule property. 5. The trial could found that in the earlier partition, the properties in two villages and 'B' schedule had also fallen to the share of Baliar Singh. Accordingly, the suit was decreed confirming the title of the Plaintiffs and Defendants 1 to 6 together in respect of " B' schedule property. 6. The said decree has been confirmed by the appellate court. However, the appellate court found that though the other properties had been partitioned, the 'A' schedule property had been jointly recorded in the name of Dhrubaraj Singh and Ors. as well as Ballar Singh, representing the two branches of Pahilman Singh apd Balamukunda Singh in the record-of-rights in the year 1955, as per Ext. 1. However, the appellate court found that though the other properties had been partitioned, the 'A' schedule property had been jointly recorded in the name of Dhrubaraj Singh and Ors. as well as Ballar Singh, representing the two branches of Pahilman Singh apd Balamukunda Singh in the record-of-rights in the year 1955, as per Ext. 1. The appellate court found that after vesting, the property had been jointly settled in the name of Dhrubaraj Singh and Ors. representing the branch of Balmukunda Singh as well as Baliar Singh representing the branch of Pahilman Singh and as such, both the branches had right over the said properties. However, the appellate court also found that the materials on record did not indicate that 'B' schedule had fallen to the share of Baliar Singh through whom the Plaintiffs and Defendants 1 to 6 are claiming. 7. The learned Counsel for the Appellants has contended that Baliar Singh had died in the year 1963 as admitted by the Plaintiffs and p. w. 3 in their evidence and as such, the settlement under the Orissa Estates Abolition Act in favour of a dead person should be taken to be void and no right can be said to have been acquired by the Plaintiffs and Defendants 1 to 6. The learned Counsel further contended that though the present Appellants had filed an application under Order 41, Rule 27, Code of Civil Procedure, for producing the order sheet of the Estate Abolition proceeding as additional evidence, the lower appellate court had illegally rejected the same. A copy of the said order sheet has been produced before this Court. On perusal, it is found that the Estate Abolition Collector had directed that the property should be settled in the names of Dhrubaraj and Ors. in accordance with previous record-of-rights: The previous record-of-rights has been marked as Ext. 1 which indicates that such property under 'A' schedule had been recorded in the names of Dhrubaraj and Ors. representing the branch of Balamukunda Singh as well as Baliar Singh representing the branch of Pahilman Singh. Therefore, the direction of the Estate Abolition Collector was also to settle the property in the name of those persons including Baliar Singh.The appellate court found that the finding of the trial court regarding the partition of 'A' schedule property was not acceptable. representing the branch of Balamukunda Singh as well as Baliar Singh representing the branch of Pahilman Singh. Therefore, the direction of the Estate Abolition Collector was also to settle the property in the name of those persons including Baliar Singh.The appellate court found that the finding of the trial court regarding the partition of 'A' schedule property was not acceptable. In other words, it may be taken that though partition had been effected in respect of other villages, 'A' schedule, property had been recorded jointly in the year 1955; Similarly, under Ext. 'D' produced by the present Appellants, the disputed property had been recorded jointly in the name of Dhrubaraj Singh and Ors. representing the branch of Balamukudda Singh as well as Baliar Singh representing the branch of Pallilman Singh. Even assuming that Baliar Singh was dead by then, in view of the direction of the Estate Abolition Collector, the proporty would have been recorded Jointly in the name of Dhrubaraj SIngh and Ors. representing Baliar Singh as well as the legal heirs of Baliar Singh. Since the record had continued in the name of Baliar Singh it had been so recorded in Ext. D. Moreover, the present Appellants did not challenge Ext. D in any higher forum. In such view of the matter, they cannot derive any advantage even if it is held that Baliar Singh was dead by the time of settlement. Once the property was recorded jointly in the name of two branches, even assuming that there was any defect in the anterior title, on settlement under the O.E. A. Act, a new title was created in favour of the two branches. 8. The appellate court found that the materials on record did not establish that 'B' schedule property had fallen to the share of Baliar Singh. In the absence of such evidence, the decree regarding declaration of title in respect of 'B' schedule property could not have been confirmed. Rather, the alternative prayer of the Plaintiffs that 'A' schedule property may be divided should have been accepted. The Plaintiffs had relied on Ext. 2, a document said to have been executed by Dhrubaraj, where half share of 'A' schedule property was given to the Plaintiffs and Defendants 1 to 6. However, since the others did not execute such document, the trial court rightly had not relied upon such document. The Plaintiffs had relied on Ext. 2, a document said to have been executed by Dhrubaraj, where half share of 'A' schedule property was given to the Plaintiffs and Defendants 1 to 6. However, since the others did not execute such document, the trial court rightly had not relied upon such document. In the absence of any other evidence regarding the partition and in view of the joint recording as per Ext. D (produced by the Appellants) which had not been challenged,it must be taken that the parties continued as co-sharers in respect of 'A' schedule property. Accordingly, in modification of the decree passed by the courts below, it is directed that 'A' schedule property should be partitioned and in such partition half share shall be given to the Plaintiffs and Defendants 1 to 6 together and balance half may be given to Defendants 7 to 18. The parties may amicably partition in accordance with the aforesaid direction, failing which it would be open to any of the parties to initiate final decree proceeding for partition 'of 'A' schedule property. 9. Subject to the aforesaid modification in the decree, the second appeal is disposed of. There will be no order as to costs. Second appeal disposed of.