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2008 DIGILAW 284 (ORI)

SAURI BARIK ALIAS SATURI BARIK v. DHOBANI DEI

2008-04-04

P.K.TRIPATHY

body2008
JUDGMENT : P.K. Tripathy, J. - Heard further argument and the Judgment is as follows: 2. This appeal has been filed by Defendants No. 7 to 13 as against a preliminary decree for partition passed by Learned Subordinate Judge, Jajpur on 31.10.1979 in title Suit No. 66 of 1978. Plaintiffs are Respondents 1 and 2 and Defendants 1 to 6 are Respondents 3 to 8. Defendants 1 to 6 supported the case of the Plaintiffs for partition. 3. Plaintiffs supported by the Defendants 1 to 6 and the Defendants 7 to 13 in their respective pleadings projected the following genealogies linking the parties to the proceeding accordingly. GENEALOGY PROVIDED BY THE PLAINTIFFS Gangadhar Barik --------------------------------------------------------- Bidura Bodhi ---------------------------------------- Babdhu, C.S. Karuni, C.S. = Suki Dama | Kamali Bimali Guna Badi, C.S. | (dead) D.12 D.13 =Hadiani | Dhobani Hemali | P.1 P.2 ------------------------------- Hadi Sauri Puni (dead) (dead) D.7 = Labri, D.10 Haguri Makar D.8 Adara D.9 =Kamali, D.6 --------------------------------------------- Basant Saturi Akhaya Sampati Bhuti D.1 D.2 D.3 D.4 D.5 GENEALOGY PROVIDED BY DEFTS. 7 TO 13 Bharat Bidur -------------------------------------------------------------- Bandhu Karuni Bikal Dama = Fula = Suki DIED unmarried adopted away | | to Sananda | |------------------------------------------- | Kamalia-Giridhari Bimali Guna ---------------------- Hadi @ Souri Puni Krushna = Gula |= Labani Haguri @ Pitabas Makar Adar =Kamali 4. Admittedly, Plaintiffs are the daughters of Badi and grand-daughters of Dama. As it is noticeable from the aforesaid conflicting genealogy of the parties when Plaintiffs state that Dama was son of Bodhi, Defendants 7 to 13 state that Dama was son of Bidura and therefore a full brother of Bandhu and Karuni. Claim of the Defendants 7 to 13, as pleaded is that Dama went on adoption to the family of one Ananda @ Sananda and accordingly, the Plaintiffs' branch have no legal right to claim for partition of the schedule properties in schedules 'Kha', 'Ga' and 'Gha', which has been referred to by Defendants 7 to 13 as 'Ka', 'Kha' and 'Ga' schedule properties. According to the Plaintiffs, Gangadhar was the common ancestor whereas according to Defendants 7 to 13 Bharat was the common ancestor. 5. After the aforesaid introductory on the conflict and the dispute between the parties on the genealogy and the relations, the respective pleadings are as follows. According to the Plaintiffs, Gangadhar was the common ancestor whereas according to Defendants 7 to 13 Bharat was the common ancestor. 5. After the aforesaid introductory on the conflict and the dispute between the parties on the genealogy and the relations, the respective pleadings are as follows. According to the Plaintiffs, they being the heirs and successors of Bodhi, one of the two sons of Gangadhar and the plaint schedule properties being the joint ancestral properties of the parties, therefore, on partition, half share be allotted to them, 1/4th share to the branch of Bandhu and 1/4th share to the branch of Karuni. Defendants 1 to 6 belonging to Bandhu's branch have admitted the aforesaid pleading and the prayer of the Plaintiffs. On the other hand, the other branches of Bandhu i.e. Defendants 7, 8 and 9 and the entire branch of Karuni i.e. Defendants 10 to 13 have contested that prayer on the ground that Dama being adopted by Ananda, his (Dama's) heirs and successors have no legal claim over the suit schedule properties. They also further state that out of compassion, two annas of properties from schedule 'Ka', 'Kha' and 'Ga' was relinquished in favour of Dama and therefore, according to that Panchayat settlement, which was an ancient one, branch of Bandhu is to get 8 annas share whereas the branch of Karuni is to get 6 annas share and the branch of Dama is to get 2 annas share from the schedules 'Kha', 'Ga' and 'Gha' properties. 6. On the aforesaid rival pleadings, the following issues were settled for adjudication of the dispute. 1. Is the suit maintainable ? 2. Have the Plaintiffs cause of action to file the suit? 3. Is the genealogy given in the plaint correct? 4. Was Dama Barik, the paternal grandfather of the Plaintiffs, the natural born son of Bodhi or of Sidur ? 5. Was the said Dama Barik adopted by Anmanda alias Sananda, as alleged by the Defendants 7 to 13 ? 6. Were the shares of Bandhu Barik, Karuni Barik and Dama Barik determined as eight annas, six annas and two annas respectively in any Panchayati ? 7. Are the suit properties liable to be partitioned? 8. Are the Plaintiffs entitled to any share in the suit properties and if so, to what extent? 9. To what relief, if any, the Plaintiffs are entitled? 7. 7. Are the suit properties liable to be partitioned? 8. Are the Plaintiffs entitled to any share in the suit properties and if so, to what extent? 9. To what relief, if any, the Plaintiffs are entitled? 7. Both the parties adduced oral and documentary evidence, Ext.E, E/1 and E/2 are respectively the Records of Rights with respect to plaint schedule 'Kha', 'Ga' and 'Gha' properties, which as noted earlier has been mentioned in the written statement of the contesting Defendants as 'Ka', 'Kha' and 'Ga' properties. Exts. A/2 to D/2, G/2 and H/2 are few Regd. Sale Deeds and the certified copies thereof, which was proved by the Defendants 7 to 13 in support of their contentions of individual dealing with the properties. Plaintiffs examined three witnesses including Plaintiff No. 1 as P.W.1, Defendants 1 to 6 examined one witness i.e. Defendant No. 6 as D.W.1 and Defendants 7 to 13 examined six witnesses including Defendant No. 7 as D.W. No. 2 and Defendant No. 8 as D.W. No. 3. Learned Subordinate Judge took up Issue No. 5 as the first issue for consideration and unhesitatingly he recorded the finding that notwithstanding the claim of Defendants 7 to 13 about the ancient adoption Defendants 7 to 13 signally failed to prove by direct or circumstantial evidence to the plea on adoptions of Dama. Accordingly, he held that the plea of adoption is a myth and Dama was a co-parcener. 8. As it is noticed from the above quoted genealogy of the parties, Plaintiffs' claim Dama to be the son of one Bodhi, whereas Defendants 7 to 13 claim that Dama was one of the three sons of Bidura. At the same time, when Plaintiffs claim Gangadhar to be the common ancestor, Defendants 7 to 13 claim Bharata to be the common ancestor. On analysis of the oral evidence on record and in the absence of proof of any documentary evidence in furtherance of such respective pleadings of the parties in support of the correctness of their respective description of genealogy, Learned Subordinate Judge held that Bharata is the ancestor and at the same time, Dama is one of the sons of Bidura. In other words, Bidura had three sons namely Bandhu, Karuni and Dama. He answered Issue No. 4 accordingly. 10. On deciding Issue No. 5, Learned Subordinate Judge had no difficulty, inasmuch as, the entries in Exts. In other words, Bidura had three sons namely Bandhu, Karuni and Dama. He answered Issue No. 4 accordingly. 10. On deciding Issue No. 5, Learned Subordinate Judge had no difficulty, inasmuch as, the entries in Exts. F and F/1 were clear enough to indicate that each of the properties (of Bandhu, Karuna and Dama) being jointly recorded at 1/3rd share in the schedule 'Kha' and 'Ga' properties. At the same time, Learned Subordinate Judge also recorded a finding that the story of determination of eight annas, six annas and two annas shares in favour of Bandhu, Karuni and Dama is not substantiated and not a proved fact. Accordingly, he held for partition of not only schedule 'Kha' and 'Ga' properties but also 'Gha' properties by allotting 1/3rd share of the property to each of the branches of Bandhu, Karuni and Dama and further identifying shares of the different descendants of the said three branches. He found there was cause of action for the filing of the suit, the suit for partition being maintainable and the Plaintiffs being entitled to a share as per the decree. Accordingly, the suit was decreed. In course of laborious argument, Learned Counsel for the Appellants made the best of the efforts to interfere with the findings on fact recorded on issue Nos. 6 and 4 but on perusal of the evidence on record and which has been correctly noted and reflected in the findings portion of the Judgment, it was found by him that virtually their finding is not to be disturbed. In other wards, the finding recorded by the trail Court that Dama did not go on adoption to the family of Ananda is to remain unchanged so also the finding that Dama is one of the three sons of Bidura. 11. Learned Counsel for the Appellants argued that entries in Exts. F and F/1 may not give indication about determination of interest of different branches, but the entry in Ext. F/2 definitely gives indication that in that item of property interest to the extent of eight annas was recorded in favour of Bandhu's branch, six annas to the Karuni and two annas in favour of Dama's branch, Badi being the son of Dama. F/2 definitely gives indication that in that item of property interest to the extent of eight annas was recorded in favour of Bandhu's branch, six annas to the Karuni and two annas in favour of Dama's branch, Badi being the son of Dama. He further argues that in their written statement, Defendants 7 to 13 have specifically pleaded that so far as 'Gha' schedule properties of the plaint, which has been referred to by them in their written statement as 'Ga' schedule property, that land was acquired individually by Bandhu, Karuni and Dama on the basis of plea of aluvion and therefore, the entries in Ext. F/2 substantially corroborate to their plea in the written statement. Contention of the Plaintiffs-Respondents on the other hand is that Bandhu being attending the settlement operation, recording of the land in that manner is possible. Repelling that argument, Learned Counsel for the Appellants argues that entry in Record of Rights, Ext. F/2 and F/2/1 belies such unproved allegation against Bandhu. In other words, he argues that if Bandhu was capable of managing entries in Record of Rights, then he could have got similar entries on the other two Record of Rights. Therefore, on the face of reading of the three Records of Rights, the aforesaid plea of the Plaintiffs is untrue. He further argues that this aspect was not taken into consideration by the Trial Court nor the evidence was appropriately appreciated. The aforesaid argument is found to be substantiated from the evidence on record so also lack of discussions in that manner in the impugned Judgment. Under such eircumstances, on perusal of Ext. F/2 and the entry therein about eight annas, six annas and two annas share respectively indicated in the names of different branches and absence of any denial to the plea of aluvion and acquisition of that property, the finding of the Trial Court to that extent is set aside. In other words, so far as the plaint schedule 'Gha' properties is concerned, share is determined in terms of the entry in the Record of Rights and not 1/3rd interest. But so far as the other schedule properties are concerned that has to be in accordance with the Judgment and decree of the Court below. Therefore, the preliminary decree be modified accordingly. No other point is argued as against the impugned Judgment. 12. But so far as the other schedule properties are concerned that has to be in accordance with the Judgment and decree of the Court below. Therefore, the preliminary decree be modified accordingly. No other point is argued as against the impugned Judgment. 12. In the result, the First Appeal is allowed in part and the Judgment and decree of the Trial Court is modified in the above indicated manner with respect to plaint schedule 'Gha' property. Hearing fee is assessed at contested scale. Parties are directed to bear their respective cost of litigation.