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2018 DIGILAW 554 (ORI)

GUNJARI SAHU v. UDIA SAHU

2018-05-14

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J - This is defendant's appeal against a confirming judgment. 2. Plaintiff-Respondent instituted the suit for partition. Case of the plaintiff was that plaintiff and defendant are the daughters of Dharani Sahu. Kirtan and Tirtha, sons of Dharani, pre-deceased him. After death of her father, she demanded partition of the properties, but then the defendant maintained a sphinx like silence. 3. The defendant filed a written statement stating that after marriage she was staying in her father's house. Her husband was staying with her as illatom son-in-law. The suit properties were partitioned between the plaintiff, defendant and her mother about 17 years ago. By virtue of the agreement, 1/4th share was allotted to the plaintiff, 1/8th share to the mother and rest half to her. The ROR was prepared in the last settlement. Thus the suit for partition is not maintainable. 4. On the inter se pleadings of the parties, learned trial court framed six issues. The parties led evidence. Learned trial court dismissed the suit holding that the suit land has not been partitioned between the plaintiff and the defendant. The plaintiff is entitled to half share. Unsuccessful defendant filed Title Appeal No.28 of 1991 before the learned District Judge, Keonjhar, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2(a) and (b) of the appeal memo. The same are - "a) Whether the learned courts below should have construed the Chuktipatra (marked 'X' for identification) as a document documenting an amicable partition between the parties herein and their mother and the husband of the defendant appellant in view of the clear partition of the properties in an amicable manner. b) Whether the joint recording in the ROR (Ext.1) should have at least been construed as a document evidencing unimpeachable title in favour of the recorded owners, though jointly, particularly when no objection was filed by the plaintiff-respondent. 6. Heard Mr. Ramakanta Mohanty, learned Senior Advocate for the appellant. None appeared for the respondent. 7. Mr. Mohanty, learned Senior Advocate for the appellant submitted that the courts below misconstrued Chuktipatra markedX as document evidencing amicable partition between the parties. Though the suit land was jointly recorded in the name of the plaintiff and the defendant in the ROR, vide Ext.1, but the shares of the respective parties have been noted in the same. 7. Mr. Mohanty, learned Senior Advocate for the appellant submitted that the courts below misconstrued Chuktipatra markedX as document evidencing amicable partition between the parties. Though the suit land was jointly recorded in the name of the plaintiff and the defendant in the ROR, vide Ext.1, but the shares of the respective parties have been noted in the same. There was previous partition of the suit properties. The finding of the courts below that there was no partition is perverse. 8. On an anatomy of the pleadings of the parties, learned appellate court held that the ROR, vide Ext.1, reveals that the suit lands have been jointly recorded in the name of the plaintiff, defendant and their mother. The ROR neither creates title nor extinguishes title. The same is prepared for collection of land revenue by the State. The settlement authorities are not competent to effect partition of the properties amongst the co-sharers. Merely because respective shares have been reflected in the ROR, the same does not prove that there has been partition of the suit properties by metes and bounds. The question of relinquishment of right to the properties by the plaintiff has not been proved. There is no relevant document evidencing relinquishment. The suit properties have not been partitioned between the parties by metes and bounds. There is no perversity in the said finding. 9. Reliance placed on the document marked-X is totally misplaced. The same is an unregistered document. As rightly held by the learned appellate court, relinquishment of share has not been proved. The substantial questions of law are answered accordingly. 10. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs. Final Result : Dismissed