ANTARYAMI BEHERA Vs. DINAKRUSHNA BEHERA

JUDGEMENT

(1.) The unsuccessful defendant no. 1 and 2 as the appellants have filed this appeal challenging the judgment and decree passed by learned Sub-ordinate Judge, Baripada (as it was then) decreeing the suit of the plaintiff. (Respondent No. 1) in part by passing the preliminary decree allotting one fourth share in Schedule - B property to respondent no. 1 (plaintiff), appellant no. 1 and 2 (defendant no. 1 and 2 each and three tenth share from the Schedule - C, D and D-1 properly and further allotting one fourth share from Schedule-B and one tenth share from Schedule-C and D and D-1 properties to the respondent no. 3 (defendant no. 3).

(2.) For the sake of convenience, to bring clarity and to avoid confusion, the parties herein after have been referred to as they have been arrayed in the court below.

(3.) The case of the plaintiff is that the parties are governed by Mitakhara School of Hindu Law. One Haguru Behera is their common ancestor. He died in the year 1970 leaving behind widow Hiramani who died in 1983, and three sons such as the plaintiff, defendant No. 1 and defendant no. 2, two daughters defendant no. 3 and one Damayanti, who shortly after marriage in the year 1973 left her husband's house and went away somewhere having got affected with leprosy and her whereabouts remained unknown for a more than seven years. So she is said to have met civil death, leaving no son or daughter. It is stated that Schedule-B property belonged to Hiramani and it stood recorded in her name; Schedule-C property originally belonged to Mali Bewa, the maternal grandfather of the plaintiff who sold it to the plaintiff by registered sale deed dated 17.03.1948 where-after in mutation case No. 762 of 1948-49, it was so recorded in the name of plaintiff on the strength of the said purchase. Schedule-C property is said to be the joint family property of plaintiff, defendant no. 1, 2 and their father Haguru. Subsequently in mutation case No. 776 of 1953-54 it was recorded in the name of defendant no. 1 and 2 under misconception of the fact as alleged though their names ought to have been recorded along with plaintiff and their father Haguru. Schedule-C property though was recorded only in the name of defendant no. 1 and 2, it was possessed and enjoyed by them alongwith plaintiff and Haguru. It is stated that by the time it was purchased, the plaintiff was carrying on sundry business having good earning and Haguru was a teacher at one Chatasali having little income of his own. When the defendant no. 1 and 2 were minors and the dependent upon the income of the plaintiff, with the help of his hard earned money, the plaintiff constructed a building over the Schedule-B and C land and the building consists of five rooms with front verandah which was completed in the year 1960. It is further stated that two more rooms and kitchen were added and the old latrine being constructed by the plaintiff existing till now with a ring well constructed later on. Schedule-D-1 properties are said to be the paternal property standing in the name of Haguru. In the current settlement, it has been recorded in the name of the plaintiff, defendant no. 1 and 2. The land described in Schedule D-2 of the plaint originally belonged to one Padru Majhi. During life time Haguru purchased it orally from the Padru in the year 1939 on payment of consideration of Rs. 30/- accompanied by delivery of possession and he began to possess the same as of right till his death. After his death, the plaintiff, defendant 1 and 2 are said to in peaceful possession of the same. It has been currently recorded in the settlement wrongly in the name of one Bhunda Majhi, the father and husband of defendant no. 4 and 5 respectively with the note of possession in favour of plaintiff, the defendant no. 1 and 2. Since Bhunda Majhi is dead leaving his son defendant no. 4 and his widow defendant no. 5, they have been included as parties in the suit. But defendant No. 4, 5 and Bhunda are said to be having no right, title, interest and possession over the suit plot. It is further stated that during the year 1955, the plaintiff left his business, and served under State Government, worked under Revenue Department. When dispute between himself and his parents in the year 1956 came to such a height that he was compelled to reside in a rented house at the place of his service. It is also the case of the plaintiff that for the first time in the year 1947-48, he was appointed as bhakta and was given 4-8-12-0 Gunth of land towards bhakta jagir. Those being his separate and self acquired property, he used to cultivate the same. Subsequently with the help of his savings, he purchased a piece of homestead land in Ward No. VII of Baripada town and constructed a house thereon, side by side incurring some loan from Urban Cooperative Bank, Baripada. The aforesaid bhakta jagir land was later on converted to hasilat rayati land in O.A. case No. 38 of 1971. One Hari Behera got it recorded in his name fraudulently without being appointed as bhakta. In Revenue mutation no. 197 of 1958 which was initiated at the instance of the plaintiff that bhakta jagir land again was recorded in his name and at that time the defendant nos. 1 to 3 did not raise any objection. Since then the plaintiff has been performing the duty as a bhakta which has also been so recognized and recorded during consolidation in the year 1976. Further, on the death of Hiramani, the Schedule-B land was inherited by the plaintiff, defendant no. 1 to 3 in three equal shares. In Schedule-C property, the plaintiff, defendant no. 1 and defendant no. 2, they have got ? .. "rd share each since it was not the paternal property But Schedule-D and D-1 properties being paternal property, the plaintiff, defendant no. 1, 2 and 3 inherited those in equal shares. It is stated that the deceased mother of the plaintiff was all along residing with the defendant no. 1 and 2 since 1955 and as she used to love them very much, both of them taking advantage of such relationship obtained a fictitious sale deed with respect to Schedule-B land without payment of any consideration and by excise of undue influence. The aforesaid sale deed is a sham transaction without creation of title in favour of the defendant no. 1 and 2. According to the case of the plaintiff, the mother of the plaintiff did not incur any loan and she had absolutely no necessity for sale of the same. Defendant no. 1 and 2 both were cultivating Schedule-D and D-1 property and maintaining their mother. Over and above, the mother was also collecting house rent from the tenants for the occupation of the building as describing Schedule-D. Further, it is stated that the suit properties have never been partitioned previously. It is the case of the plaintiff that on 26.01.1986; he approached the defendant no. 1 to 3 for amicable partition and as they did not pay any heed to it, he had to so he had to institute the suit.