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2014 DIGILAW 29 (ORI)

Rama Chandra Rana v. Purusottam Rana

2014-01-13

M.M.DAS

body2014
JUDGMENT : M.M. Das, J. 1. In this appeal, the Appellants as Defendant Nos. 1 to 4 in the Trial Court have challenged the Judgment dated 18.9.2008 passed by the Learned Civil Judge (Senior Division), Jajpur in T.S. No. 12 of 1993 filed by the Plaintiff decreeing the suit for partition preliminarily. The Respondent No. 1 as Plaintiff filed T.S. No. 12 of 1993 before the Learned Civil Judge (Senior Division), Jajpur for partition of the suit scheduled properties claiming 1 /4th share for himself as well as Defendant Nos. 16 to 18. At the foot of the pla(sic)t, the Plaintiff- Respondent No. 1 described the genealogy as follows:-- With reference to such genealogy, the Plaintiff stated that one Giridhari Rana was the common ancestor of the parties except Defendant No. 15. Giridhari had two sons, namely, Daitari & Mahi. Out of them, Mahi died leaving behind him his son, widow & three daughters, who are not parties to the suit as they have got no interest in the suit properties. Daitari after the death of his first wife married for the second time. Daitari died in the year, 1951 leaving behind him his two sons, Arjuni through his first wife & Naran through his second wife. Arjuni, during his lifetime had also married twice. He died in the year 1981 leaving behind him his two sons, namely, Gopinath & Rama (Defendant No. 1) through his first wife &, three sons, namely, Rabi (Defendant No. 16), Hari (Defendant No. 17), Purusottam (Plaintiff) & a daughter, Basanti (Defendant No. 18) through his second wife. Gopinath died leaving behind his legal heirs & successors as Defendant Nos. 2 to 8. The second son of late Daitari, namely, Naran, died leaving behind his legal heirs & successors as Defendant Nos. 9 to 14. 2. The case of the Plaintiff is that there was a partition between the family of Daitari & Mahi, who are sons of late Giridhari Rana, in a compromise decree passed in T.S. No. 147 of 1947 filed by Daitari in the Court of Munsif, Jajpur. In the said compromise, the parties admitted that the suit properties are the separate properties of Daitari except one plot, which was kept for common enjoyment. Thereafter, Daitari being the Karta acquired certain properties in the name of his minor sons & other family members. In the said compromise, the parties admitted that the suit properties are the separate properties of Daitari except one plot, which was kept for common enjoyment. Thereafter, Daitari being the Karta acquired certain properties in the name of his minor sons & other family members. The further case of the Plaintiff is that the landlord Choudhury Narasingha Charan Mohapatra filed Rent Suit No. 2642/1.947-48 & obtained a decree & brought the property to auction & to set aside the said decree, Daitari filed T.S. No. 21 of 1948 in the Court of Munsif, Jajpur alleging that the property was his exclusive property though purchased in the name of his family members. The suit was decreed & the said decree was upheld in T.A. No. 286 of 1949, but the decree of both the Courts below were set aside by this Court in S.A. No. 649 of 1950 & ultimately, the suit was dismissed. Therefore, the Plaintiff stated that the suit property was under the joint possession of the parties except Defendant No. 15. It was alleged by the Plaintiff that on 15.6.1992, the Defendant Nos. 1, 3 & 4 threatened to dispossess him from the suit land claiming that they are owners of the property described in Schedule-A of the plaint as Daitari had gifted the same by executing a deed of gift in favour of Defendant No. 1 & Gopinath. After knowing about the same, the Plaintiff obtained the certified copy of the deed of gift dated 10.4.1951 & came to know that the same was a void document. The Plaintiff claimed that the properties covered under the gift deed were the ancestral properties & the deed had not been accepted by the donees as well as the contents of the deed were not read over & explained to the executant. According to the Plaintiff, the deed of gift was executed on 10.4.1951 & as the original deed was not taken back from the office of Sub-Registrar till 28.9.1954, the D.S.R. ordered for destruction. Therefore, the Plaintiff alleged that the deed was not acted upon. It was also pleaded by the Plaintiff in the plaint that Gopinath & Rama Chandra, who are sons of late Arjuni, filed a collusive suit bearing T.S. No. 52 of 1 955 for declaration of right, title & interest on the strength of gift deed & the same was compromised. It was also pleaded by the Plaintiff in the plaint that Gopinath & Rama Chandra, who are sons of late Arjuni, filed a collusive suit bearing T.S. No. 52 of 1 955 for declaration of right, title & interest on the strength of gift deed & the same was compromised. In the said compromise, there was a condition that the Plaintiff shall pay a sum of Rs. 2.800/- to the landlord-Defendant No. 1. The Plaintiff has claimed the property in T.S. No. 52 of 1955 to be the joint family property & his name along with the name of Defendant Nos. 16 to 18 had been fraudulently omitted from the settlement record. 3. The Defendant Nos. 1 to 4 contested the suit & filed their written statement pleading, inter alia, that the suit is not maintainable being barred by limitation & hit by principle of estoppels & res judicata. According to them, the Plaintiff has no locus standi to file the suit as he & Defendant Nos. 16 to 18 are the issues of one Malati, who is not the second wife but a concubine of Arjuni. Therefore, they pleaded that the Plaintiff & Defendant Nos. 16 to 18 have no interest over the suit properties, which admittedly consists of 14 (fourteen) lots. 4. It was contended by the Defendant Nos. 1 to 4 that the property described in Lot No. 1 of the plaint except Plot No. 121 had fallen to the share of late Daitari in Title Suit No. 174 of 1947 of the Court of Munsif, Jajpur & the same is the joint family property of Defendant Nos. 1 to 14 & is liable for partition among them. So far as the properties described in Lot Nos. 2 to 13 & suit plot No. 121 in Lot No. 1 of the plaint, which were gifted by Daitari Rana in favour of Rama Chandra & Gopinath by executing a registered gift deed dated 9/10.4.1951, are concerned, the Defendant Nos. 1 to 4 claimed that the same are personal properties of Ramachandra, Defendant No. 1 & Gopinath, the predecessor of Defendant Nos. 2 to 8 & they are in exclusive possession of the same. According to them, the properties recorded under Lot No. 5 were settled in favour of both Gopinath & Rama Chandra in Vesting Case No. 16513 of 1963. 2 to 8 & they are in exclusive possession of the same. According to them, the properties recorded under Lot No. 5 were settled in favour of both Gopinath & Rama Chandra in Vesting Case No. 16513 of 1963. They also stated that the properties covered under Lot Nos. 2 to 13 except Lot No. 5 were acquired by late Daitari by his own money in his name & in the name of his children. So far as the property described in Lot No. 14 of the plaint is concerned, the Defendant Nos. 1 to 4 stated that the said property was settled in favour of Gopinath & Rama Chandra under Sections 6 &7 of the O.E.A. Act. In Title Suit No. 21 of 1948, title of Daitari in respect of such property was a/so declared. With regard to the property described in Lot No. 5 of the plaint, the Defendant Nos. 1 to 4 specifically stated that the then landlord Narasingh Charan Mohapatra filed Rent Suit No. 2642/1947 & obtained a decree against Arjuni Rana & put the said property to auction. Thereafter, Daitari filed T.S. No. 21 of 1948 in the Court of Munsif, Jajpur against his sons, Arjuni & Naran, & the then landlord in respect of the property as well as some other properties & got a decree. The landlord Narasingh Charan Mohapatra challenged the said decree in respect of the property in Lot No. 5 of the plaint in Title Appeal No. 286 of 1949, which was lost. Thereafter, Daitari transferred the said property as well as his self acquired property in favour of his minor grandsons, namely, Gopinath & Rama Chandra, who are sons of Arjuni, by way of registered gift deed dated 9/10.4.1 951. Against the said decree of the suit & the appeal, the landlord filed S.A. No. 649 of 1950 before this Court in respect of Lot No. 5 of the plaint. Both the donees on the basis of their gift deed were impleaded as parties in the second appeal in place of Daitari. After hearing Learned Counsel for the parties, this Court allowed the appeal & dismissed the suit in respect of the property described in Lot No. 1 of Schedule-'Ka' of Title Suit No. 21 of 1948 (Lot No. 5 of the present suit) & the title of the then landlord on the same was confirmed. After hearing Learned Counsel for the parties, this Court allowed the appeal & dismissed the suit in respect of the property described in Lot No. 1 of Schedule-'Ka' of Title Suit No. 21 of 1948 (Lot No. 5 of the present suit) & the title of the then landlord on the same was confirmed. Gopinath & Rama after attaining majority filed T.S. No. 52 of 1955 in the Court of Munsif, Jajpur against the Landlord as well as Arjuni & Naran & challenged the decree passed in S.A. No. 649 of 1950. The said suit was compromised & Gopinath & Rama purchased the said land from the then landlord out of their own fund. In this way, they claim that the property described in Lot Nos. 2 to 14 is not liable to be partitioned. 5. The Defendant No. 10 filed his written statement admitting the claim of the Plaintiff. 6. Due to notification under Section 3 of the OCH & PFL Act for consolidation operation in the mouza where the properties described in Lot Nos. 3 & 11 of the plaint situate, the suit was abated in respect of the same. 7. The Trial Court on the basis of the pleadings of the parties framed the following seven issues. "i) Whether the suit is maintainable? ii) Whether the suit properties are liable for partition? iii) Whether the alleged gift deed executed by Daitari is void? iv) Whether Malati is the married wife of Arjuni & whether the Plaintiff & Defendant Nos. 16 & 18 are the sons & daughter of Arjuni through his second wife Malati? v) Whether there is any cause of action to file the suit? vi) Whether the Plaintiff is entitled for partition as prayed for? vii) Whether the Plaintiff is entitled for any other relief?" 8. In order to substantiate the case, the Plaintiff examined four witnesses including himself as P.W.1. Similarly, the Defendant No. 10 examined four witnesses including himself as D.W. 1 & the Defendant Nos. 1 to 4 also examined four witnesses including the Defendant Nos. 1 & 3 as D.Ws. 5 & 6 respectively. Both the parties also adduced several documentary evidence, which were marked as exhibits. 9. The Trial Court by Judgment dated 18.9.2008 after considering the pleadings of the parties as well as the evidence adduced both oral & documentary decreed the suit preliminarily. 1 & 3 as D.Ws. 5 & 6 respectively. Both the parties also adduced several documentary evidence, which were marked as exhibits. 9. The Trial Court by Judgment dated 18.9.2008 after considering the pleadings of the parties as well as the evidence adduced both oral & documentary decreed the suit preliminarily. The Trial Court came to the findings that the suit is maintainable & the gift deed dated 9.4.1951 executed by Daitari Rana in favour of Gopinath & Rama Chandra is void & not accepted or acted upon & therefore, the suit properties are liable to be partitioned. The decree passed in T.S. No. 52 of 1 955 in favour of both Gopinath & Rama Chandra is not binding on Arjuni as well as the Plaintiff. Malati is the second wife of Arjuni & the Plaintiff & Defendant Nos. 16 to 18 are the sons & daughter of Arjuni through his second wife Malati. The Plaintiff has cause of action to file the suit & he is entitled for the relief of partition claimed in the suit. Challenging the said Judgment, the Appellants (Defendant Nos. 1 to 4) have preferred this appeal. During pendency of the appeal, the Appellant No. 1 has expired & his legal heirs as Appellant Nos. 1 (a) to 1(g) have been substituted in his place by Order Dated 14.7.2011. 10. On perusal of the impugned Judgment, it is seen that though the Defendant Nos. 1 to 4 in the written statement challenged the maintainability of the suit on various grounds, the Court below without discussing anything simply answered Issue No. 1 holding that the suit is maintainable as the Plaintiff has filed the suit for partition. The Trial Court has not taken into consideration the effect of abatement of the suit in respect of part of the suit property under Section 4 of the OCH & PFL Act, 1972 over which there was consolidation operation & the parties contested their rights over the said properties before the consolidation authorities. The Full Bench of this Court in the case of Srinibas Jena & others v. Janardan Jena & others, AIR 1981 Orissa 1, authoritatively held that consolidation authorities have been vested with exclusive jurisdiction to decide right & interest of the land during the consolidation operations & the civil Court's jurisdiction has been taken away. The Full Bench of this Court in the case of Srinibas Jena & others v. Janardan Jena & others, AIR 1981 Orissa 1, authoritatively held that consolidation authorities have been vested with exclusive jurisdiction to decide right & interest of the land during the consolidation operations & the civil Court's jurisdiction has been taken away. The Court below also failed to notice that with regard to the claim of title of the Plaintiff over the properties which went under consolidation operation was decided by the consolidation authorities & the said final order passed in the revision case under Section 36 of the Act was exhibited as Ext. BB/4. It appears that in the impugned Judgment, the Court below came to the finding that the deed of gift dated 9/10.4.1951 executed by Daitari Rana in favour of Gopinath Rana & Ramachandra Rana is void, not accepted or acted upon &, therefore, the suit properties are liable to be partitioned. It may be mentioned here that the order of the Joint Commissioner of Consolidation, Cuttack passed in Consolidation Revision Case No. 40 of 1993 wherein the aforesaid registered deed was accepted as a valid gift deed, was challenged by the Writ Petitioners, who are Defendant Nos. 10, 11 & 9 respectively, before this Court in OJC No. 2946 of 1999. This Court by Judgment delivered today has upheld the said finding & interpreted the said registered document dated 9/10.4.1951 to be a valid gift deed under which title has been passed over the disputed properties in favour of donees, who are predecessors of the Appellants in this appeal. 11. In view of the above finding of this Court in the said Writ Petition, finding of the Trial Court that the said gift deed dated 9/10.4.1951 is void & has not been accepted or acted upon cannot be sustained. As a consequence, therefore, the properties under the said gift deed cannot be subjected to partition at the instance of the Plaintiff. Hence, this Court finds that the Trial Court has acted contrary to law & facts in decreeing the suit filed by the Plaintiff- Respondent No. 1. In the result, therefore, the impugned Judgment & decree of the Trial Court passed in T.S. No. 12 of 1993 is set aside & the suit stands dismissed. Accordingly, the RFA is allowed. The parties shall bear their respective cost.