GOBINDA CHANDRA BEHERA Vs. UCHHABA BEHERA

JUDGEMENT

(1.) THIS second appeal has been admitted on the following substantial questions of law:

(2.) ONE Kulamani Behera, the original appellant (who has been substituted by the present appellants) as plaintiff filed T.S. No. 32 of 2001/172 of 1999 for partition of his share of 6 annas 8 pahis. The suit property constituted an area of Ac. 0. 19 decimals appertaining to Plot No. 254 under Khata No. 101 of mouza Barimunda in the district of Cuttack. Out of several defendants, only defendant nos. 17 to 20 contested the suit and others were set ex parte. The only document relied upon by the plaintiff was the R.O.R. prepared during consolidation operation by the Assistant Consolidation Officer in 1984 based on no order or decision under the Consolidation Act. Prior to that, the suit property was recorded as 'Bebandobasta' in the R.O.R. of 1977 prepared under Survey and Settlement Act. The other two documents filed by the plaintiff were based on the said consolidation R.O.R.

(3.) NO issues were framed on the basis of the additional written statement and out of 6 (six) issues framed, the only relevant issue is whether the suit land is available for partition. After trial, even though the original appellant as plaintiff did not examine himself in the suit, against whom allegations were made and his son as the sole plaintiff's witness admitted that he has no knowledge about the suit land prior to 1984 when the consolidation R.O.R. was prepared and his father can only say about the same, the trial court decreed the suit merely on the basis of the consolidation R.O.R. The trial court further held that the suit is not barred under Section 73 (1) of the O.H.R.E. Act. The respondents preferred an appeal being RFA No. 77 of 2002 before the learned District Judge, Cuttack.