GERUA BISWAL Vs. KSHYAMA BISWAL

JUDGEMENT

(1.) THE present appeal is against the decision of the learned Single Judge of this court confirming the order of the Arbitrator, Hirakud Land Orgarisation, sambalpur, rejecting the objection of the appellant in a land acquisition proceeding.

(2.) THE Respondent and the Appellant are two brothers, the former being the elder. They had about 10 acres of land in village Dhulunda in Sambalpur district. It was admittedly their ancestral joint family property. While they were in joint family status, some years prior to 1936 the appellant shifted to a village named Chalta under Surguja zamindary in Madhya Pradesh, where he had been married. After the appellant's shifting to Chalta, the respondent alone continued to be in possession and enjoyment of the joint family properties at Dhulunda. According to respondent's case, in 1936 partition took place between the two brothers, and in the said partition the lands at Dhulunda were allotted to the respondent and the lands at Chalta were allotted to the appellant. The respondent remained in sole possession of the Dhulunda land. Meanwhile 1. 81 acres of land in dhulunda village was acquired by the State Government under the Hirakud scheme, over which a sum of Rs. 564/-was payable as compensation. The appellant filed an objection claiming 8 annas share in this compensation money. His case was that while the lands at Dhulunda were the joint family properties of the parties, the lands of Chalta were his self-acquisitions, and that there was no partition and allotment as alleged by the respondent, in 1936. An unregistered document Ext. A was relied on by the respondent in support of the said partition and allotment, The appellant's case was that he had not executed the said document.

(3.) THOUGH the respondent's case was that partition took place in 1936, in the evidence stage attempt was made by the respondent to establish, that the partition and allotment had taken place earlier, and that Ext. A was executed in 1936 in recognition of the same. The learned Arbitrator held Ext. A to be genuine. He was of the view that the Chalta lands were not the joint family properties, and that there was no prior partition. According to the learned Arbitrator's finding, the appellant left this place (Dhulunda) and tried his luck at Chalta where his fatherin-law was living. He cultivated his father-in-law's lands and then got a gift of 10 acres from him and got a Parcha in his name for the lands. So he felt that he is now well settled and in a more secure position there. So he has executed Ext. A in april 1936 stating that he would not have any claim in Dhulunda lands and that khyama (respondent) should not claim a share in, Chalta lands. In this way, khyama was in sole possession and enjoyment of the lands in Dhulunda to the exclusion of Gerua (appellant ). According to the learned Arbitrator's finding, the appellant abandoned his right to the Dhulunda lands under Ext. A. The learned arbitrator considered the question of non-registration of Ext. A and was of the view that though by itself it could not effect an extinction of the appellant's claim, it could be used for the collateral purpose under Section 49 of the Registration Act "to prove separate possession, separate dealings and enjoyment of the properties". Though not so categorically stated, the learned arbitrator appears to have upheld the sole title of the respondent to the Dhulunda lands on the basis of adverse possession from 1936.