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2016 DIGILAW 598 (ORI)

Krushna Chandra Barik v. Chandia Barik

2016-08-05

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Sonepur in Title Appeal No.27 of 2004 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Sonepur in Title Suit No.2 of 1998. The respondent no.1 as the plaintiff had filed the suit for partition of the land described in the schedule of the plaint. The same having been preliminarily decreed, this present appellant and another being the unsuccessful defendants had carried an appeal under section 96 of the Code of Civil Procedure. The said appeal having been dismissed, the move is now before this Court by filing the second appeal under section 100 of the Code of Civil Procedure. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that the suit land stood recorded in his name as also in the name of his brother, the original defendant, who having died during the suit, his legal representatives including the present appellant have been substituted and contested the suit as also filed the appeal and now one of them is pursuing the present appeal. It is the further case of the plaintiff that the lands are the joint family property and as his brother created problem every time, he had to ask for partition. The same having not been paid any heed to, the suit for partition has been filed. The defendant contested the suit pleading that the recording of the suit land in the name of the plaintiff along with the original defendants is erroneous and without any foundation. It is stated that the suit lands are not the joint family properties of the brothers and as such are not liable to be partitioned as prayed for and the plaintiff is not entitled to half share over it as claimed. It is stated that during the consolidation operation, taking advantage of illiteracy of the original defendant, the plaintiff got his name included as one of the recorded tenants in respect of the suit land and that is completely without the knowledge and consent of the original defendant and behind his back. It is stated that during the consolidation operation, taking advantage of illiteracy of the original defendant, the plaintiff got his name included as one of the recorded tenants in respect of the suit land and that is completely without the knowledge and consent of the original defendant and behind his back. It is said that the plaintiff has no right, title, interest and possession over the suit land, which are the absolute property of original defendant, who was in exclusive possession of the same having been acquired by him after partition with the plaintiff. It is also stated that there has been prior partition between the plaintiff and the original defendant and as such they have been in separate mess and estate. It is stated that the original defendant no.1 had purchased the land under plot no.979 measuring Ac.0.490 dec. of land under Khata No.18 at village-Asurgarh from one Harihar Barik for a consideration of Rs.3300/-out of his own income under registered sale deed dated 24.02.1982 and since then he is in possession of the same as its absolute owner. It is next stated that by registered sale deed dated 16.05.1981, the defendant had purchased the land under Plot No.448, Khata No.13 from Bhubaneswar Barik for a consideration of Rs.2500/-and since then he is also in possession of the same on his own right as its owner. So it is said that the above two plots are not at all liable to be partitioned and the plaintiff has no share over the same. In order to non-suit the plaintiff, further stand has been taken that in view of the provision of section 34 of the Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972, the suit as laid is not maintainable. 4. The trial court on such rival pleadings framed as many as six issues. Rightly taking up issue nos.1 and 2 as regards the partiability of properties between the parties and the exclusive right, title and interest over the suit property as claimed by the defendant, on analysis of evidence, both oral and documentary, conclusion has been recorded in favour of the plaintiff. Furthermore, in view of the consolidation record of right published in respect of the suit land, the same has been found to be no more open to challenge in view of the legal bar under section 51 of the Act. Furthermore, in view of the consolidation record of right published in respect of the suit land, the same has been found to be no more open to challenge in view of the legal bar under section 51 of the Act. The technical plea to thwart the suit as offending the provision of section 34 of the Act has also been whittled down. In view of all these, the trial court having preliminarily decreed the suit declaring half share of the plaintiff over the suit properties, the present appellant with the other being the legal representatives of original defendant preferred the first appeal. The lower appellate court as is seen from the judgment and in view of the challenge made before it has gone to examine the sustainability of the findings of the trial court on the above scores. For the purpose again at its level the evidence, both oral and documentary, have been put under the scanner and those having been considered in the backdrop of the pleadings, the lower appellate court has found no other alternative but to affirm the findings of the trial court and thus confirmed the final result of the suit. 5. Learned counsel for the appellant submits that the courts below are not justified in passing the decree for partition when it is hit under the provision of section 34 of the OCH&PFL Act, 1972. It is also his submission that the finding of the trial court as affirmed by the lower appellate court on issue nos.1 and 2 are perverse being not based on due appreciation of evidence as mandated under law. 6. Firstly, it is seen that the courts below have recorded the finding that the suit property is the joint family properties of the parties and as such liable for partition. Next, both the courts below have gone to discard the case of the defendant advancing the claim of having exclusive right, title and interest over the suit land. Thus, there has been the concurrent finding on these above factual aspects. In course of hearing it has not been shown that the courts below have overlooked to consider any material evidence available on record which if would have been taken into consideration in their proper perspective, the finding might have been otherwise. Thus, there has been the concurrent finding on these above factual aspects. In course of hearing it has not been shown that the courts below have overlooked to consider any material evidence available on record which if would have been taken into consideration in their proper perspective, the finding might have been otherwise. It is seen that the courts below have churned the oral evidence of the witnesses and have gone to examine the documentary evidence let in by the parties in support of their rival case and thereupon have arrived at the conclusion in answering the issues. It cannot also be said to be a case that the findings so recorded are based on no evidence. Learned counsel for the appellant has also not been able to satisfy the court that the findings are founded upon any such inadmissible evidence. The next question raised here is that the suit is hit under the provision of section 34 of the OCH and PFL Act. In this partition suit at the stage when the court is called upon to pass a preliminary decree declaring the share of the parties over the suit property as they are found in law to be entitled, the question of fragmentation of the agricultural lands which is sought to be prevented by creating the bar under section 34 of the Act does not get attracted. Therefore, such an objection at this stage is misconceived. 7. For the aforesaid discussions and reasons, this Court being unable to accept the submission of the learned counsel for the appellant as regards existence of any substantial questions of law in the case holds that the appeal does not merit admission. 8. The appeal is accordingly dismissed. No order as to cost.