SURENDRA KUMAR PATRA Vs. ARJUN CHARAN PATRA

JUDGEMENT

(1.) The order of the Consolidation Commissioner, annexed as Annexure 3, is being challenged by the petitioners in this writ application.

(2.) THE disputed property appertains to Hal Khata Nos. 107, 16, 117 and Anabadi Khata No. 1299. Nabaghan, the common ancestor; had two sons, Baishnab and Adwait. Baishnab's son Surendra is petitioner No. 1 and Surendra's sons are petitioners 2, 3 and 4. Adwait's son Arjun is opp. party No. 1 and Arjun's wife. Ushamani is Opp.party No 2 and their children are opp. parties 3 and 4. Petitioners' case in a nutshell is that in 1945 Baishnab without the consent of his son Surendra executed a deed of gift in respect of the disputed property which was the joint family property in favour of opp. party No, 1 and his brother Ramesh. It is the further case that notwithstanding the gift, petitioner No. 1 and his family members continued to remain in possession over the property and when the consolidation operation started in the village, the petitioners . filed objection to record their names as they are the legal heirs of Baishnab and have succeeded to the entire joint family property of Baishnab and his children. It was also pleaded that the so called gift by Baishnab in favour of Arjun and Ramesh was void. The Consolidation Officer allowed the objection by order dated 11 -8 -1982, annexed as Annexure -1 and directed that the petitioners should be recorded in respect of the disputed property, Opp. parties 1, 2 and 4 being aggrieved by the said order preferred an appeal before the Deputy Director of Consolidation but the appeal was dismissed by order dated 21 -7 -1983, annexed as Annexure -2. The said opposite parties carried the matter in revision. The Commissioner having allowed the revision by his order dated 18 -12 -1986, annexed as Annexure -3, the petitioners have moved this Court.

(3.) MR . Das appearing for the petitioners raises three contentions in assailing the order of the Consolidation Commissioner namely : (i) The gift of the joint family property by the Karta without the consent of the other coparceners is void and the gift being void dons not confer any right on the donees and consequently opposite parties do not derive any right, title and interest on the basis of the gift. (ii) The Commissioner committed' an error in holding that the claim is barred by limitation under Art. 109 of the Limitation Act since the said provision does not apply to the case in hand and (iii) The finding of possession of Arjun and Ramesh is based on no evidence and, at any rate, a case of adverse possession , not having been pleaded, no title accrues in favour of Arjun and Ramesh even if they are found to be in possession and the Commissioner's order is vitiated on that score. Mr. Swamy appearing for the opposite parties submits that opp. party No. 1 Arjun is non else than the natural brother of petitioner No. 1 who was adopted to Adwait. The gift deed was executed both by Baishnab and Adwait & further in a partition between Arjun and Ramesh the properties including the gifted property were partitioned and both Arjun and Ramesh have sold parcels of the lands that had fallen to their respective shares and petitioner No. 1 himself has purchased some of these lands. This indicates that the gift was duly acted upon. Accoding to Mr. Swamy, the father of Hindu Joint Family has the right to make a gift of a reasonable portion of the joint family property in favour of son, daughther etc., and, therefore there is no illegality in the gift deed executed by Baishnab in favour of Arjun in respect of the disputed joint family proparty. Mr. Swamy further contends that the finding of possession of the revisional authority cannot be interfered with by this Court and if the gift is held to be void then opposite parties have acquired title by virtue of their long possession and, therefore, the order of the Commissioner cannot be interfered with.