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2018 DIGILAW 376 (ORI)

Dhonar Bhotra v. Sardi Bhotruni

2018-04-09

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. The plaintiff is the appellant against a confirming judgment in a suit for partition. 2. The plaintiff and defendant are brothers. They are sons of Somanath Bhotra. The suit properties are the ancestral properties of the parties. The same fell to the share of their father in an earlier partition between his father and Tularam Bhotra. There was no partition between them by metes and bounds. 3. Defendant filed a written statement stating, inter alia, that there was a previous partition of the suit properties. 4. Stemming on the pleadings of the parties, learned trial court has framed six issues. Both the parties led evidence, oral and documentary, in support of their case. Learned trial court dismissed the suit holding that there was previous partition of the suit properties. Unsuccessful plaintiff challenged the judgment and decree before the learned Addl. District Judge, Jeypore in T.A No.17 of 1989 (T.A No.31 of 1988), which was eventually dismissed. It is apt to state here that during pendency of the suit, the sole defendant died, whereafter his legal heirs have been substituted. 5. The second appeal was admitted on the following substantial question of law; “Whether in the facts and circumstances of the case and the findings recorded by the courts below that some of the suit properties have been jointly recorded in the names of the parties in the settlement record of right of 1966 and that there is no evidence to establish that there was a complete previous partition between the parties, the courts below erred in dismissing the plaintiff’s suit for partition sole on the ground of a previous partition?” 6. Heard Mrs. Rajalaxmi Biswal on behalf of Mr. B.K. Panda, learned counsel for the appellant and Mr. P.K. Das on behalf of Mr. Manoj Kumar Mishra, learned Senior Advocate for the respondents. 7. Mrs. Biswal, Learned counsel for the appellant submitted that the suit properties have been jointly recorded in the names of the parties in the settlement ROR of 1966. The courts below have erred in dismissing the plaintiff’s suit for partition on the ground of a previous partition though it came to a conclusion that there was no evidence to establish that there was a previous partition between the parties. 8. Mr. Das, learned counsel for the respondents submitted that there was a previous partition between the parties. The courts below have erred in dismissing the plaintiff’s suit for partition on the ground of a previous partition though it came to a conclusion that there was no evidence to establish that there was a previous partition between the parties. 8. Mr. Das, learned counsel for the respondents submitted that there was a previous partition between the parties. After partition, the plaintiff shifted to his father-in-law’s house and resided there. In the record-of-right published in the year 1954, vide Ext.4, separate note of possession of the plaintiff and the defendant have been recorded. Further, the plaintiff executed a deed of relinquishment in favour of the defendant for a consideration of Rs.2000/-. Both the courts below concurrently held that there was a previous partition. There is no perversity in the said finding. 9. On a threadbare analysis of the evidence on record and pleadings, learned appellate court held that after marriage, the plaintiff shifted to his father-in-law’s house. The defendant resided in the ancestral house. Parties are in separate mess and separate cultivating possession of the properties. The record-of-right published on 30.12.1954, vide Ext.4, shows the separate note of possession of the parties in respect of different plots. It disbelieved the unregistered document marked as Ext.X. Both the courts concurrently held that there was prior partition. There is no perversity or illegality in the finding of the courts below. The substantial question of law is answered accordingly. 10. 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.