NABEEN CHANDRA SAHU Vs. DEBASIS SAHU

JUDGEMENT

(1.) These two appeals arise out of the order dated 15-2-2000 passed by the learned Civil Judge (Senior Division), Aska partly allowing the plaintiff's prayer for injunction . Misc. Appeal No. 226 of 2000 is by the defendant against the partial injunction whereas Misc. Appeal No. 136 of 2000 is by the plaintiff who is aggrieved by the partial refusal of his prayer.

(2.) In order to appreciate the contention raised at the bar, it is necessary to note the short facts of the case. The plaintiff's case in short is that the defendant is his only son born through his first wife late Snehalata Sahu who died in 1976. The plaintiff married for the second time and begot a daughter through her, but since the second wife also died in August, 1993 on the advise of his father and other family members and friends, he married for the third time on 1-12-1993 and the wife is presently working at Umaguda in Koraput district. The defendant, being the only son he was given good education and he ultimately got a job as Personnel Officer in a Cement Company at Rajaganpur and he is staying there. The plaintiff however, stays at Amaguda with his serving wife, but was making frequent visits to his native place and other villages and to Berhampur to look after his family and property affairs and to look after his father Joginath Sahu who decided to stay mostly at Aska or Berhampur. Late Mani Sahu was the original ancestor who had three sons, Kalu, Siba and Khetrabasi. Kalu had three sons, namely Biswanath, Radhasyam and Anatryami, Khetrabasi is the father of Joginath who is the father of the plaintiff. Kalu, Sibha and Khetrabasi died long back and Siba died issueless. Joginath Sahu, father of the plaintiff is the eldest son and the other son is Uma Charan Sahu. Hema Sundari, Kumudini, Santilata, Malayarani and Pramila are the five daughters of Joginath. There was an amicable partition and division of all joint family properties between the two branches of Kalu and Joginath about 50 years back. Joginath got a vast extent of landed properties and several houses situated in different villages, but in course of time he had sold many of the land. Uma Charan Sahu who was then a minor represented by mother Baidehi as his guardian, filed a partition suit on 7-10-1955, in the Court of the Munsif , Aska, T.S. No. 126 of 1955 against Joginath and the brother Nabin Chandra Sahu who were minors represented by his father guardian Joginath Sahu in respect of joint family lands and houses. However, the suit ended in a compromise decree. It is alleged that the suit was a collusive suit at the instance of father Joginath to avoid O.L.R. ceiling proceedings and as such, the compromise decree was never acted upon and the parties continued to live joint and enjoy all the properties. Joginath having become old and the mother having died, there was misunderstanding between Uma Charan Sahu and the plaintiff, but with the co-operation of their agnetic uncle Biswanath agreed to act as an arbitrator for amicable settlement between the brothers, but there having un-usually delayed the plaintiff withdrew his consent in March, 1992. However, since the partition through mediator failed, Joginath, the father of the plaintiff and Uma Charan took the initiative to settle the dispute between the two brothers and ultimately, an amicable family settlement was reached between the plaintiff, Uma Charan and their father Joginath on 26-4-1992 which was reduced into writing and signed by all the parties. It is alleged that in terms of the family settlement and arrangement both the brothers i.e. the plaintiff and Uma Charan accepted and acknowledged the settlement. It was agreed by the parties to retain all the moveable properties with them and the father Joginath declined to accept separate share for himself in the moveable properties. However, decided to keep a deposit of Rs. 2,00,000/- each brother contributing Rs. 1,00,000/- for the father. Other terms and conditions were laid down in the settlement. It is thus claimed by the plaintiff that he has become the absolute and exclusive owner in possession of all the moveable and immovable properties described in the plaint Schedule 'A', 'B', and 'C' . It is further pleaded that the plaintiff was having lucrative practice as an advocate having a good income was paying income tax till 1993. The plaintiff having good professional income, acquired two houses, one at Chandra-sekharpur and the other Tankapani Road Pandab Gumpha, Bhubaneswar and they are the absolute exclusive and self-acquired properties of the plaintiff over which the defendant has no right, title and interest in any manner. But since the plaintiff is staying at a distance place, the defendant son was to collect the rent of the house on his behalf, Joginath suddenly died at Berhampur on 25-8-1997 and he performed the ceremonies of the deceased father. Joginath having declined to have any share in the erstwhile joint family properties in terms of the family settlement dated 26-4-1992 question of executing any wilnama or testament in favour of defendant did not arise. Plaintiff having asked the defendant to give a detail account of his collection of rent in respect of the separate houses of the plaintiff at Bhubaneswar, he got wild. According to the plaintiff the defendant does not contribute anything and make unnecesary expenditure for which he was constrained to demand for an amicable partition of the suit properties, but the defendant evaded. Subsequenlty the plaintiff having information that the defendant was making clandestine arrangements to alienate some of the suit land, the suit was filed for partition and division of the properties into two equal shares.

(3.) The defendant-son has filed a written statement denying the plaint averments and refuting the claim of the plaintiff. It is the case of the defendant that he has got his sister married since the plaintiff did not take any care of her and provide any financial help, even the plaintiff did not attend the marriage. In the partition suit T. S. No. 126 of 1995 each of the parties i.e, late Joginath Sahu, the plaintiff and his brother Uma Charan got their respective shares of land and other properties as per the decree. After the decree the parties possessed their respective shares. It is however, stated that the plaintiff and his brother being minors, their properties were looked after by their parents representing them in the aforesaid suit. The allegation that partition was effected to avoid ceiling proceeding and that it was collusive has been denied to be false. The defendant pleaded that in accordance with the partition the lands and other properties were recorded separately in the names of the parties. In view of the partition the lands in separate possession of those persons was taken into consideration for calculation of the ceiling area under the O.L.R. Act. Plaintiff even though was aware that the parties were separate in all respect took an unimaginable stand to get some more properties for himself as Jyesthansa and made an attempt for re-partition of all the properties which was not permissible under law since there was an earlier partition. It is stated that the present suit is not maintainable in law and hit by the principle of res judicata. The further partition after the decree in T.S. No. 126 of 1955 said to be completely false. It is alleged that after the plaintiff had started living with his third wife did not bother for the defendant or the daughter and the defendant was looked after by his late grand father and out of love and affection towards the defendant and in view of the prevailing circumstance late Joginath has got a will scribed under his signature on 12-7-1996 and signed it on 29-1-1987 in presence of attesting witnesses and got it duly registered. The said will is in respect of some of his properties consisting of those which had fallen to his share, the land and house purchased by him subsequently and other immovable properties which belonged to him and in absolute possession. After the death of Joginath the defendant became the rightful owner and is in possession of all the properties mentioned in the will on his own right. After having come to know of the will the plaintiff has filed the suit on the false and fabricated averments. It is specifically averred that the land described in schedule 'B' are those mentioned in the will and the lands which fell to the share of late Joginath in partition and those acquired by him subsequently to the said partition are mentioned in Schedule 'X' in the written statement and the rent of the land in Schedule 'B' and the house mentioned in Schedule 'A' were undisputedly in sole possession of late Joginath. But being unable to challenge the validity of the will the plaintiff has taken false plea that the lands are fallen to his share and has claimed partition of the land described in schedule 'B' of the plaint.