JAGABANDHU MAJHI Vs. HIRA MJAHI

JUDGEMENT

(1.) The original Appellant, by filing this Appeal under Sec. 100 of the Code of Civil Procedure (for short, 'the Code'), had assailed the judgment and preliminary decree dtd. 2/4/2002 and 16/4/2002 respectively passed by the learned District Judge, Keonjhar in Title Appeal No.43 of 2002. The said original Appellant having died, his legal representatives have come on record and are pursuing this Appeal. The First Appeal filed by the Respondent No.1 (Defendant No.3) under Sec. 96 of the Code, being aggrieved by the judgment and preliminary decree dtd. 1/9/2001 and 6/9/2001 respectively passed by the learned Civil Judge, Senior Division, Keonjhar in T.S. No.67 of 1998, has been allowed and the Trial Court, having decreed the suit holding the Respondent No.1 (Defendant No.3), Respondent No.4 (Defendant No.4), Respondent No.6 (Defendant No.6) and Respondents 7 and 8 (Defendant No.7(a) and 7(b) respectively) to be not entitled to any share in Schedule-B and Schedule-C properties and directing the original Appellant (Plaintiff), Respondent No.2 (Defendant No.1), Respondent No.3 (Defendant No.2), Respondent No.5(Defendant No.5) and Respondnet No.7 (now Respondent 7(a) & 7(n) and Defendant No.8 in the Trial Court to effect partition holding their shares as indicated therein; in the First Appeal all the parties have been held entitled to their shares as stated in the order therein.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

(3.) The original Plaintiff, whose legal representatives having been substituted are now pursuing this appeal, had filed the suit for partition of Schedule-B properties amongst himself and Defendants 1 to 8 as well as partition of Schedule-C properties amongst himself and Defendants 1 and 2 followed by allotment of their shares therein and drawal of the preliminary decree. It is stated that one Biswanath Majhi is the common ancestor. In order to avoid confusion and for better appreciation, said Biswanath, the common ancestor is hereinafter referred to as 'Old Biswanath'. He had two sons, namely, Khetrabasi and Laxman. Khetrabasi died leaving behind his three sons, namely, Jagabandhu (Plaintiff), Shyam (Defendant No.8) and Biswanath as well as two daughters, namely, Hira (Defendant No3) and Basanti (Defendant No.4). It may be stated here that the parties being Santal by caste and as such are members of Scheduled Tribe Community, ordinarily one of the grandsons through son takes the name of the grandfather. Old Biswanath had another son, namely, Laxman, who died leaving his wife Bhabi (Defendant No.5) and as they had no sons but two daughters. This Shyam son of Khetrabasi had been taken on adoption by Laxman being so given by Khetrabasi. Biswanth, son of Khetrabasi died dleaving behind his wife Budhuni (Defendant No.2 since Dead) and they had a son Prema, who died issueless and the other son is NImai (Defendant No.1). It is stated that Schedule-B lands are the ancestral properties of the parties and Schedule-C property was the Padhani Jagiri land in possession of old Biswanath till his death in the year 1929. It is further stated that on his death, Khetrabasi, he being the village headman and continued to serve as such till his death and enjoyed Padhani Jagiri land in Schedule-C. The Plaintiff further states that there was a severance of the joint status between the brothers, Khetrabasi and Laxman during their lifetime and with the death of Khetrabasi in the year 1969, the Plaintiff and his brother Biswanath remained in joint possession of the said lands and Biswanath, being the eldest son of late Khetrabasi, remained in charge of the family affairs of the branch of Khetrabasi. On the date of application of Orissa Merged Territories (Village Offices) Abolition Act, 1963; Khetrabasi was in possession of Schedule- C land as the Padhan of the village but the said lands, instead of being recorded jointly in the name of his two sons on rayati basis, on his death, was recorded by the State only in the name of Biswanath, the husband of Defendant No.2 and father of Defendant No.1. It is the case of the Plaintiff that said settlement of Schedule-C land on rayati basis in favour of Biswanath, however, enures to his benefit too and he is entitled to half share over the same. When the proposal for amicable partition of Schedule-B and C lands were turned down by the Defendants, the suit has come to be filed.