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2017 DIGILAW 1496 (ORI)

Dhruba Pradhan v. Gupta Pradhan

2017-12-22

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff No.3 is the appellant against a confirming judgment in a suit for partition. 2. The following genealogy would show the relationship of the parties. Genealogy Narayan Pradhan (dead) Kahnei (dead) Rama (dead) Laxman (dead) Dana (dead) Nata (dead) Nila (dead) Kalia (dead) Dutia (dead) Eka (dead) Rohini (dead) Chandra (dead) Dhruba (Plf.3) Gupte (Def.) Bhikari (Plff.1) Bairagi (Plff.2) The case of the plaintiffs is that Narayan was the common ancestor of the parties. Narayan died leaving behind him six sons, Kanhei, Laxman, Rama, Dana, Nata and Nila. Plaintiffs are the sons of Kalia and Dutia. Kalia and Dutia are the sons of Kanhei. Eka is the son of Rama. Defendant is the son of Eka. After the death of Narayan, his sons were in possession of the suit land jointly. Kanhei survived to all his other brothers, who died before him and as such, their interest over the suit land devolved on him. After death of Kanhei, the plaintiffs and the defendant are in possession of the suit land. The suit land has been recorded jointly in the 4th settlement. The same had not been partitioned between the parties. 3. Defendant filed a written statement denying the assertions made in the plaint. Case of the defendant is that Narayan was the common ancestor of the parties. After his death, the suit land was recorded jointly in the names of six brothers in the 2nd settlement. Kanhei and Laxman separated. Their share of land was recorded in Khata No.10 during 3rd settlement in the name of Kalia the son of Kanhei. The rest of the lands were recorded in the name of Nata under Khata No.11 in 3rd settlement. 4. On the inter se pleadings of the parties, learned trial court struck five issues. Parties led evidence, both oral and documentary to substantiate their case. Learned trial court came to hold that the suit land appertaining to Khata No.15 is not the joint family property of the plaintiffs and the defendant and as such, not liable for partition. Khata No.21 of village-San Bardakata is not the joint family property. The same exclusively fell to the share of Kanhei and Laxman. The suit lands fell to the share of Rama, Dana, Nata and Nila. The defendant has title over the same. There was a previous partition. Held so, it dismissed the suit. Khata No.21 of village-San Bardakata is not the joint family property. The same exclusively fell to the share of Kanhei and Laxman. The suit lands fell to the share of Rama, Dana, Nata and Nila. The defendant has title over the same. There was a previous partition. Held so, it dismissed the suit. Unsuccessful plaintiff No.3 challenged the judgment and decree before the learned Addl. District Judge, Sonepur in Title Appeal No.65/22 of 1993-99, which was eventually dismissed. 5. The second appeal was admitted on the following question of law enumerated in Ground No.2 of the appeal memo. “2. Whether the omission to consider important piece of the evidence of defendant D.W.1 quoted hereunder “Rohini and Chandra had given their interest in suit land to my father who was possessing them and maintaining Rohini and Chandra all along. Rohini and Chandra had given their respective shares to my father. I have no documents to file” is an error of law and defect in procedure in the disposal of the suit as interest of Rohini and Chandra in suit property in Khata No.15 subsisted till their death after 1963 settlement ROR to devolve as per the law of succession as per 1956 Act, devolving on her husbands heirs brother’s son .” 6. Heard Mr. N.P. Patnaik, learned counsel for the appellant and Mr. S. Ghosh, learned counsel for the respondents. 7. At the outset, Mr. Patnaik, learned counsel for the appellant submitted that the appellant does not deny or dispute the genealogy. He contended that Laxman, Dana, Nata and Nila died issueless. After the death of Nata and Nila, their widows Rohini and Chandra were in possession of the suit land and their names had been recorded in Khata No.15. Rohini and Chandra died issueless. Even if there was previous partition, the share of Nata and Nila devolved on their widows Rohini and Chandra. After death of Rohini and Chandra, their share in the properties will devolve equally on plaintiffs and defendant in view of Section 15 (2)(b) of the Hindu Succession Act, since they are Class-II heirs. 8. Per contra Mr. Ghosh, learned counsel for the respondents submitted that both the courts below concurrently held that there was a previous partition. There was no perversity or illegality in the findings of the courts below. All co-sharers are not parties to the suit. 8. Per contra Mr. Ghosh, learned counsel for the respondents submitted that both the courts below concurrently held that there was a previous partition. There was no perversity or illegality in the findings of the courts below. All co-sharers are not parties to the suit. Thus it cannot be definitely said that the properties of the widows shall devolve upon Class-II heirs. 9. On a thread-bare analysis of the evidence on record and pleadings, both the courts below concurrently held that there was a partition of the suit schedule property. There is no perversity or illegality in the findings of the courts below. 10. The next question crops up as to whether the property shall be devolved upon the surviving co-sharers after death of Rohini and Chandra. All the co-sharers are not parties to the suit. There is no material on record as to whether property allotted to them still exists or not. In the absence of any such material, no such relief can be granted. The substantial question of law is answer accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.