LAKHANA NAYAK Vs. BASUDEV SWAMY

JUDGEMENT

(1.) Defendants 1 and 2 in a suit for partition are the appellants.

(2.) Plaintiff alleged that when the temple for the Deity was constructed sometimes in 1962, the raiyats of the village were required to render help for the purpose of seva puja and bhog of the Deity. The villagers agreed to give Schedule-A lands for the purpose. A trust deed was created and possession of lands was surrendered and plaintiff being the President of the trust remained in possession of the lands and the usufructs of the lands were being utilized for the purpose of seva puja. The villagers were earlier managing the affairs of these Koth lands through a committee selected by them and the committee had the authority to make alienations in case of necessity. The said committee alienated 66 cents out of plot No. 568 to Magata Nahak and said Magata Nahak had been in possession of the same. The villagers also had alienated some lands to village schools as mentioned in Schedule-C and had set apart lands covered by Schedule-B for the common purpose and, therefore, those lands are not liable to be partitioned. So far as plot No. 99 is concerned, according to the plaint though it is recorded as 3.48 acres but the koth was in possession of only 2.00 acres and remaining 1.48, acres of land belongs to other raiyats and does not belong to the Koth. It is also alleged that some of the lands were given to Deity Raghunath Swamy and the said lands are also not liable to be partitioned. It is the further case that there were 38 shares in respect of the koth lands and 60 persons had been recorded, but by virtue of transfers made to different persons 47 persons owned 38 years (sic) in the koth property. Therefore, leaving the plaintiff 37 other shares were enjoyed by 43 persons. It is also alleged that Ramachandra Nayak who had initiated a proceeding under S.145, Code of Criminal Procedure, though had been declared to be in possession of land appertaining to plot No. 99, but in fact, he was not in possession of the same and the said decision of the Magistrate is not binding on the plaintiff. In paragraph 12 of the plaint, it is alleged that the suit is being filed under Order 1, Rule 8, Code of Civil Procedure. It was prayed that a preliminary decree be passed dividing the suit property into 38 shares and delivering 11/2 shares to defendants 1 and 2 and rest to the plaintiff and defendants 3 to 9 as all other shareholders have transferred their shares in favour of the plaintiff.

(3.) Defendants 1 and 2 contested the suit and denied the allegations made in the plaint. According to their written statement their father Ramachandra and one Khetra got themselves separated from the villagers taking survey No. 99 measuring 3.48 acres towards their share about 30 years prior to the filing of the written statement and possessed the same separately. In a subsequent partition between Ramachandra and Khetra, Ramachandra got 1.60 acres while Khetra got the remaining portion of plot No. 99. It was also averred that villagers had donated their lands to the plaintiff Deity creating a trust deed on 21-11-1963 whereafter the plaintiff was possessing the lands through bhag tenants. So far as the lands covered by Schedules-B and C are concerned, the plaint case was admitted, but according to the defendants survey No. 99 was correctly recorded in the Record-of-Rights and their possession in respect of survey No. 99 declared by the Magistrate was legal and justified. It was also pleaded that they being in exclusive possession of the land had perfected their title by adverse possession. In the written statement a positive stand had been taken that the suit was bad for non-joinder of necessary parties since some of the raiyats had not executed any document of gift in favour of the Deity and yet they had not been made parties to the suit for partition, the raiyats being Patta Debi, Rahas Debi and Chakrapani Sahu.