UMAKANTA SARAF Vs. LINGARAJ SARAF

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 3rd July, 1990 passed by a learned Single Judge of this Court in First Appeal No. 123 of 1977 reversing the decree dated 25th March, 1977 of the Subordinate Judge, Bhawanipatna in Title Suit No. 11 of 1975, Defendant No. 2 (Respondent No. 4 in the First Appeal) has filed this Appeal against High Court Order invoking jurisdiction under Clause 10 of the Letters Patent.

(2.) Respondent Nos.1 to 3 as plaintiffs filed the Title Suit with I the prayer for declaration of their right, title and interest over the suit Schedule 'B' properties, for confirmation of possession and in the alternative for recovery of possession, if the plaintiffs were found to have been disposed during the pendency of the suit. It was averred in the plaint that Hari had two sons, namely, Sitaram and Jata. Plaintiffs are the sons of Sitaram; whereas lingaraj and Sadhu, who had died prematurely, are sons of Jata. Lingaraj was the original defendant; whereas Umakanta, son of Sadhu, got himself impleaded as defendant No. 2 in the suit. It was averred in the plaint that in the year 1934-35 Sitaram, the predecessor-in-interest of the plaintiffs, had acquired 25.92 acres of land in village Sarasaguda. In the year 1937 there was a family partition between Sitaram on one hand and Lingaraj as well as Sadhu on the other, in which Sitaram retained the lands in village Chichia and some other lands which he had acquired subsequently towards his share. Defendant Lingaraj Saraf and his brother Sadhu ere allotted lands in village Sarasaguda described in Schedule 'A' to the plaint towards their share. After death of Jata, both his sons were looked after by Sitaram. After the petition, Sitaram remained in possession of the schedule 'B' lands and the defendant remained in possession of schedule 'A' lands. However, during the Settlement operation, taking advantage of the fact that Sitaram was ill and the plaintiffs were minors, Lingaraj got himself recorded in respect of the lands in village Chichia and threatened to disturb the possession of the plaintiffs in respect of schedule 'B' lands. Such causes of action constrained the plaintiffs to file the suit.

(3.) Original defendant Lingaraj filed his written statement alleging that there was no partition in 1937. According to him as Sitaram had no son he adopted Sadhu and on 20.2.1993 executed a deed of partition allotting a share from the entire lands in village Chichia in favour of the defendant and after obtaining approval of the then Rani Saheba, the said lands were recorded in the name of the defendant in the Settlement. According to the defendant, Sadhu was not given any share in the said partition in 1939 as he was adopted by Sitaram and the defendant was in peaceful possession of his share and the plaintiffs were in possession of their lands and therefore the plaintiffs have no right, title or interest over the suit lands.