GOURAHARI MISRA AND ORS. Vs. BIRANCHI NARAYAN MISRA

JUDGEMENT

(1.) HEARD Mr. S.N. Satpathy Learned Counsel for the Appellants and Mr. Mohapatra Learned Counsel for the Respondent.

(2.) THE Defendants are in appeal against the judgment and decree passed by the learned Subordinate Judge, Rairangpur in a suit for partition. The Plaintiff Respondent filed the suit for partition of half share in 'B' schedule properties. The plaint schedule has been admitted. Banamali, the common ancestor had three sons Laxman, Sudarsana and Bharat and were living separately. Sirapani of Laxman's branch died in the year 1911 unmarried leaving Karunakar, Bansidhar of Sudarsan's branch and the Defendants Gaurahari. Aditya and Puma of Bansidhar's branch. According to the Plaintiff Karunakar and Bansidhar being nearest heirs, inherited the properties of Sirapani which included both Lakhraj and Nasilat land. In the settlement record of rights of 1931, the lands were recorded in the name of Sudarsan and Bansidhar. The parties possessed the lands jointly. On abolition of Lakhraj tenure under the Orissa Estate Abolition Act the parties jointly applied for settlement of the land described in items 1. 2, and 3 in Schedule 'B' in their favour and the lands were settled and parties acquired a fresh title over the same and both parties possessed their lands. The Plaintiff demanded a partition by metes and bounds, but nothing having happened, he filed the suit on 17.7.1977. The Defendants, Appellants herein, filed their joint written statement claiming inter alia that Sirapani had disposed of all the properties either by way of sale or by gift before his death. It was specifically pleaded that he had given away Ac. 1.24 decs, of land comprised in plot Nos. 25.27 and 28 in Khata No. 21 to the father of the Plaintiff. He had given all other lands in plaint '8' schedule to Bansidhar. Sirapani died in 1915. He had given all the properties to Bansidhar as the later maintained him for long years. It was further pleaded that the Plaintiff's father remained satisfied with the distribution of properties, but in 1966 for the first lime, raised his voice to record his name jointly with Bansidhar. It was admitted that the settlement; authorities recorded the names jointly. In 1930 settlement also the properties were recorded in joint names. After death of Karunakar the Plaintiff with an ulterior motive approached the Mayurbhanj State authorities in D.R. Case No. 69 of 1936 seeking half share in the said land but the prayer was rejected and the parties were directed to seek their relief in the Civil Court. It was alleged that the Brahmottar rights got abolished in view of the notification under the O.E.A. Act and it was required of the parties to file petition under Sections 6 and 7 of the O.E.A. Act within short time and since the Plaintiff was shrewd and elder than the Defendants, probably by practicing fraud and misrepresentation had filed the joint application. It is claimed that the property in the plaint schedule are not in joint possession and the Plaintiff has no right, title and interest over the suit land except the three plots namely plot Nos. 25, 27 and 28 On the pleadings of the parties, the learned trial Court framed four issues as follows:

(3.) THE Brahmattar Lakhraj properties in items 1. 2 and 3 in Schedule 'B' having undisputedly vested in the State Government free from all encumbrances right of any of the parties got extinguished on such vesting. The said lands were settled in favour of both the Plaintiff and Defendants in the orders, Exts. 6, 7 and 8 and the parties acquired a fresh title from the date this settlement was made i.e. on 10.8.1976. the later order of the O.E.A. Authorities. In that view of the matter, it is clear that the properties in items 1.2 and 3 by 'B' schedule having vested in the State Government free from all encumbrances and the same having been settled jointly in favour of both the Plaintiff and the Defendants the parties have acquired a fresh title to the disputed land and therefore, the contention of the Learned Counsel for the Appellants that in view of the exclusive possession of the Defendants in such land, hostile to the interest of the Plaintiffs, they have acquired the right by adverse possession or right by ouster, is misconceived in law since by the time the suit was feed in July. 1977 a period of 12 years had not elapsed from the date the lands were settled in favour of the Plaintiff and the Defendants by the order of the Estate Abolition Authorities in 1966. In such view of the matter, the finding of the learned trial Court to that effect and that the property was liable to be partitioned half and half has to be affirmed.