LINGARAJ MISRA Vs. BHUBANESWAR MOHAPATRA

JUDGEMENT

(1.) DEFENDANTS 2, 3, 6, 17, 20 and the legal representatives of defendant No. 1 filed this appeal against the judgment of the learned Additional District Judge, cuttack dated 25-4-59, decreeing the plaintiff's suit. The plaintiffs accordingly were directed to be put in joint possession of the lands in suit with the defendants. Defendants 1 and 2 were directed to remove certain structures constructed by them on the suit lands.

(2.) PLAINTIFFS in their representative capacity on behalf of the Brahmin Lakhrajdars of mouza Ichhabatipur Sasan filed a suit for declaration that they were entitled to joint possession with the defendants and prayed for a permanent injunction, and for a direction to the defendants to remove the structures, if any, over the suit lands within the stipulated period to be fixed by the Court. Defendants are also brahmin Lakhrajdars of the same village. Thus, all the Brahmin Lakhirajdars of ichhabatipur Sasan were jointly recorded in respect of 22 acres of land called kakudi Khamar Chak. The disputed land is three acres in extent out of the aforesaid 22 acres. The entire area of 22 acres is recorded as a common Lakhraj land of Brahmin Mahajans who have got unequal shares therein. Ichhabatipur sasan is admittedly situated in flooded area. There was a proposal about forty years ago that the Brahmin Lakhrajdars should have a planned Basti and that they should shift to the new site. Accordingly, a proposal was made to have a planned basti at Baunspal Chak. Plans were accordingly prepared, but for certain reasons it was not given effect to. Thereafter the Brahmins wanted to shift to Kakudi Khamar Chak. The northern portion of this Chak is 15 acres in extent. A school house had been constructed in that area and it was felt that the northern portion would not be suitable for habitation. Thus, there remained only seven acres of land situated on the southern side of the Chak. The Brahman inhabitants agreed to divide these seven acres among themselves for residential purposes. Since they could not arrive at an amicable decision amongst themselves, they authorised Sri K. C. Singh Deb, the then Sub-divisional Officer of 'kamakhyanagar in the district of Dhenkanal to effect the division of lands amongst them. Accordingly, they executed an agreement (Ex. 2) on July 29, 1952, in favour of Sri K. C. Singh Deb. He made certain attempts in this direction, but before anything could be finalised he was transferred and was succeeded in his office by Sri Suryakanta Mahanty. Sri Mohanty proceeded to make the division of the southern seven acres of land amongst the Brahmins Mahajans. The plaintiffs' allegation is that in doing so, he allotted the best three acres out of that land to the defendants. According to them, exhibit 2 was executed in favour of Sri K. C. Singh Deb in his personal capacity and not in his official capacity as the Sub-divisional Officer and therefore after Sri singh Deb's transfer his successor in office did not ipso facto acquire any right to make the division, and as such the allotment made by him is beyond his authority and is invalid. Plaintiffs further stated that after the allotments were made the defendants put some 'subhakuntha' on the lands allotted to them. Accordingly, the plaintiffs were constrained to file the suit for declaration that the suit-land is joint property of both parties, for recovery of possession of the same and for an order directing the defendants to remove the structures raised by them, presumably the subhakuntha, on the suit land and for a permanent injunction restraining them from making any construction thereon in future.

(3.) THE defence of the defendants in essence was that Sri K. C. Singh Deb was authorised to make the division not in his personal capacity, but in his official capacity and that therefore after his transfer it was within the jurisdiction of his successor Sri Surya Kanta Mohanty to make the division. They further averred that the division by Sri Mahanty was effected with the full knowledge of the plaintiffs. Thus, they contended that the suit is not maintainable in law under the provisions of the Arbitration Act. In any case, the defendants being the co-owners of the disputed land along with the plaintiffs the latter are not entitled to claim the reliefs prayed for by them without bringing in a properly constituted suit for partition.