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2018 DIGILAW 79 (ORI)

Mahani Das v. Bansi Das

2018-01-15

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This is plaintiff’s appeal against an affirming judgment in a suit for partition. 2. The case of the plaintiff was that Arta Das was the common ancestors of the parties. He had three sons, namely, Sana, Kanduri and Panu. Banshidhar is the son of Sana. Dulla Dei is the daughter of Kanduri. Plaintiff is the son of Panu. The suit lands were recorded in the C.S.R.O.R. jointly. After death of sons of Arta, the plaintiff and defendant nos.1 and 2 possessed the suit properties separately. There was no partition by metes and bounds. On 7.12.1965, the defendant no.2 sold her 1/3rd share from the homestead land including 21 gunths from her agricultural land to the plaintiff by means of a registered sale deed. In M.S.R.O.R., the name of the plaintiff had been wrongly recorded as son of Kanduri. The plaintiff is the son of Panu. He had claimed 2/3rd share of ‘Ka’ schedule land and 1/3rd share of ‘Kha’ schedule land and 21 gunths of land located at village Sundarpur. 3. Defendant no.1 entered contest and filed a written statement. The case of the defendant no.1 was that Panu died issueless. The plaintiff and defendant no.2 are the son and daughter of Kanduri. The sale deed dated 7.12.1965 is a sham transaction between the brother and sister. The entry in M.S.R.O.R. is correct. 4. On the interse pleadings of the parties, learned trial court struck seven issues. Both parties led evidence, oral and documentary. Learned trial court came to hold that plaintiff is the son of Kanduri and decreed the suit. Assailing the judgment and decree of the learned trial court, plaintiff filed T.A. No.30/75 of 1989 before the learned Additional District Judge, Bhadrak, which was eventually dismissed. 5. Mrs. P. Nayak, learned counsel for the appellant submitted that plaintiff is the son of Panu. In the voter lists, Ext.5 and 5/a, registered sale deed dated 25.4.89 vide Ext.1, the plaintiff has been described as son of Panu. The courts below failed to appreciate the evidentiary value of the voter lists, Ext.5 and 5/a, which are public documents. The witnesses examined by the plaintiff have special means of knowledge about the birth of the plaintiff. The courts have also not considered the evidence in its proper perspective. She further submitted that plaintiff is an illiterate person. The courts below failed to appreciate the evidentiary value of the voter lists, Ext.5 and 5/a, which are public documents. The witnesses examined by the plaintiff have special means of knowledge about the birth of the plaintiff. The courts have also not considered the evidence in its proper perspective. She further submitted that plaintiff is an illiterate person. The courts below laid much credence to the minor contradictions in the evidence. The evidence cannot be viewed by resorting to mathematical calculation. 6. The suit properties are the ancestral properties of the parties. The crux of the issue is whether the plaintiff is the son of Panu ? On an anatomy of the pleading and evidence on record, learned trial court came to hold that the voter lists, Ext.5 and Ext.5/a, plaintiff had been described as the son of Panu. In Ext.5, published in the year 1975, age of the plaintiff was 42 years. In Ext.5/a, published in the year 1983, the age of the plaintiff was 50 years. Both the documents show the year of birth of the plaintiff to be 1933. The M.S.R.O.R., Ext.2, reveals that the plaintiff is the son of Kanduri. The plaint was filed in the year 1984. The age of the plaintiff was 44 years. The plaintiff was examined as a witness in the year 1989. His age was 48 years. The sale deed dated 7.12.1965, Ext.1, depicts the age of the plaintiff as 23 years. All the documents revealed the year of birth of the plaintiff to be around 1941-42. But then in the voter list, his year of birth is 1933. In paragraph 5 of the deposition, the plaintiff stated that Panu died in the year 1930 and Panu’s wife died 15 to 16 years prior to his death. If the evidence of the plaintiff is believed, then Panu and his wife can never beget the plaintiff as a son in the year 1933 or 1941. It further held that according to the plaintiff, Dulla Dei, P.W.2, is senior to him by 20 years. In the plaint, Dulla Dei’s age has been mentioned as 55 years. In the sale deed executed in the year 1965, Ext.1, her age was 36 years. Thus her year of birth is 1929. The plaintiff being junior to P.W.2 by 20 years, his year of birth is 1949. In the plaint, Dulla Dei’s age has been mentioned as 55 years. In the sale deed executed in the year 1965, Ext.1, her age was 36 years. Thus her year of birth is 1929. The plaintiff being junior to P.W.2 by 20 years, his year of birth is 1949. P.W.2 in her deposition stated that she saw the death of Panu and his wife when she was 6-7 years. Thus the plaintiff could not have born to Panu and his wife. There is no perversity or illegality in the findings of the courts below. 7. In the wake of aforesaid, the appeal is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.