DHATAJEE DHARUA Vs. BISWANATH DHARUA AND ORS.

JUDGEMENT

(1.) THE unsuccessful Plaintiff is in appeal against the appellate judgment and decree passed by the learned District Judge. Balangir -Kalahandi, in Title Appeal No. 17 of 1974, confirming the judgment and decree passed by the learned Subordinate Judge, Bhawanipatna, in Title Suit No. 18 of 1969 dismissing the Plaintiff -Appellant's suit for partition instituted against the Respondents as the Defendants in the suit. The Respondent No. 1 is the husband of the Respondent No. 2 and the father of the Respondent Nos. 3 to 5.

(2.) ACCORDING to the Plaintiff -Appellant. Jhillo Dharua alias Gond was the common ancestor of the parties and he was the Gountia of village Dalguma in the district of Kalahandi till the year 1936 when he died. On his death, Chhatrasingh Dharua, the father of the Appellant and the Respondent No. 1 became the Gountia of that village and continued to function as such till the year 1943 when he died whereafter the Respondent No. 1 was appointed to be the Gountia and he functioned in that capacity until the abolition of the Gountia system and the settlement of Bhogra lands on raiyati basis in 1958. There was no partition among the parties. During the current settlement operations, the name of the Respondent No. 1 was recorded in respect of the entire Bhogra lands and 44.13 acres of land were settled in his name, whereas only 3.65 acres of land were settled in the name of the Appellant which the Appellant could knew at the time of the distribution of Pattas in the year 1960. He thus claimed partition in respect of the entire lands mentioned in the schedules to the plaint.

(3.) BY the judgment dated August 19, 1970, passed by the learned Subordinate Judge, Bhawanipatna, the suit was decreed preliminarily for partition. On appeal, the learned District Judge remanded the suit for fresh trial with amendment of pleadings to find out whether the parties were Hindus belonging to the Mitakshara School of Hindu Law and as to whether the suit properties constituted coparcenary properties liable to be partitioned. The learned Subordinate Judge took up the hearing of the suit and dismissed it on the ground that there had been partition between the parties in 1940 and the Respondent No. 1 had acquired the right of occupancy in respect of the Bhogra lands settled with him and therefore, the Appellant was not entitled to claim a share therein. On appeal, the learned District Judge remitted the matter directing the trial court to frame a specific issue, viz., "Whether the Bhogra lands recorded in the name of Defendant No. 1 are coparcenary properties liable for partition after abolition of Gountia system in the area". The learned Subordinate Judge was directed to record his finding thereon' and transmit it to the appellate court for deciding Title Appeal No. 17 of 1974. The learned Subordinate Judge found that there had been no partition prior to the Bhogra Conversion Proceedings and since the Bhogra lands became partible after conversion into raiyati lands, the Appellant was entitled to a decree. The learned District Judge, however, on an independent consideration of the evidence, oral and documentary, adduced by the parties, found in favour of the Respondents that there had been a partition and he also found that after the Bhogra lands were converted into raiyati lands, the properties were not liable for partition. It is thus that the matter has come to this Court in Second Appeal.