FAKIR SAH Vs. NETRA SAH

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant against a reversing judgment in a suit for declaration of title and recovery of possession of 'B' Schedule property or, alternatively, for partition of 'A' Schedule properties into five equal shares and allotting the plaintiffs' 2/5ths share.

(2.) PLAINTIFFS ' case in nutshell is that the common ancestor Dhubai had six sons, but one of the sons, Kaibalya died issueless. The other five sons are Kara, Hari, Usta, Panchu and Puina. Kara's son is Bhuja and Bhuja's son Fakira is defendant No. 1. Hari's son Netra is plaintiff No. 1 and Panchu's son Bhulku is plaintiff No. 2. It is alleged in the plaint that the entire 'A' Schedule lands were the lands which Dhubai was enjoying by rendering service as Jhankari, a village Police. There had been a partition in the family amongst the five sons of Dhubai, but the Jhankari service lands described in Schedule -A had not been partitioned. But by an amicable arrangement, part of 'A' Schedule lands described in Schedule -B was being enjoyed by Usta and Panchu and thereafter by the plaintiffs. It is also further alleged that the lands attached to Jhankari Service were impartible in nature and in accordance with the custom the eldest member of the family renders the services of Jhankari and even though Kara was the Jhankari after death of Dhubai and after Kara's death Bhuja became Jhankari, but the land which they were enjoying as Jhankari was the joint family property. In a proceeding Under Section 145 of the Code of Criminal Procedure, possession of defendant No. 1 having been declared the plaintiffs filed the suit for the reliefs as already stated.

(3.) UNDER the provisions of the Orissa Offices of Village Police (Abolition) Act (hereinafter referred to as the 'Abolition Act'), with effect from and on the appointed date, all Jagir lands stand resumed and vested absolutely in the State Government free from all encumbrances as provided in Section 3 (1) (e) of the Abolition Act, But under the proviso to the said sub -section, if a person being a Jbankar was immediately before the appointed date discharging the duties of a village priest attached to the office of Jhankar, then he would be entitled to continue to hold fifty per cent of the Jagir lands so long as he continues to discharge the said duties. Section 4 of the Abolition Act provides for settlement of lands. Under Section 4(1), Jagir lands resumed under the Act would be settled with rights of occupancy therein on a fair and equitable rent to be determined in the prescribed manner with the village police officer or with him and all those other persons, if any, who may be holding the land or any part thereof as his co -sharers or as tenants in pursuance of any local custom, usage or practice under him or under such co -sharer to the extent that cash such person was in separate and actual cultivating possession of the same immediately before the appointed date. For better appreciation of the point in issue. Section 4 (1) of the Abolition Act is extracted herein below in extenso : '4. Settlement of land and solatium :