RADHA PANDIANI Vs. SARAT CHANDRA SABAT

JUDGEMENT

(1.) After succeeding in part in a suit for partition instituted by her as the plaintiff with a decree in her favour in respect of the properties other than those set out in item No. 2 of the schedule (for short, the disputed land) appended to the plaint which were held by the trial Court to be the self-acquired properties of the respondent Nos. 1 and 2 (defendant Nos. 1 and 2) and impartible in nature, the appellant challenges the aforesaid finding recorded in favour of these two respondents. Admittedly, the appellant is the daughter and the respondent Nos. 1 and 2 are the sons of the deceased Nityananda Sabat who had acquired the disputed lands from Rani Ratnamala Patamahndevi of Sanokhemedi being the Puo Brahmin of and having been brought up as the foster son by the Zamindar of Sanokhemedi, by virtue of a deed of gift in or about 1927 and had remained in possession thereof until his death in 1962. The Inam lands of which Nityananda was in possession continued to be in possession of the appellant and her brothers who were intermediaries. The disputed lands vested in the State under the Orissa Estates Abolition Act. Neither the appellant nor any of the respondents had applied under Section 8-A (1) of that Act for settlement of those lands in their favour under Section 7 (1) (a) of the said Act. After the lands vested in the State Government under Section 8-A (3) of that Act, the right to make any claim stood extinguished. This position has not been disputed at the Bar at the hearing of this appeal. By the time the Orissa Land Reforms Act (for short, "the Act") came into force the appellant and her brothers had ceased to be co-sharers in respect of the said lands. The respondent No. 2, who was in personal cultivation of the disputed lands as a temporary lessee, made an application for recognising him as a raiyat under Section 4 (1) (h) of the Act and this was allowed in November, 1978, as per Ext. B, in O. L. R. Case number 178 of 1066 by the appropriate authority and he was declared to be a raiyat under Section -I (2) of the Act. As required under Section 4 (3) of the Act he was directed to pay the premium of Rupees 2,297.35 paise and on payment of the premium, as per "Ext. C, he was declared to be an occupancy raiyat under the State Government in respect of the said properties. His case was that this had jointly been acquired by him and his brother (respondent No. 1) who had also contributed a part of the premium. The defendant No. 4, the son of the appellant, made an application on behalf of the appellant to get her name included along with the respondent No. 2 in the settlement records, but this application was rejected, as per Ext. K, by the Revenue Officer on the ground that he had no power to review. The settlement of these properties on the respondent No. 2, thus became final and conclusive. While the case of the appellant was that the entire suit lands were the joint properties of the parties, the case of the respondent Nos. 1 and 2 was that they were not and according to them, the disputed lands were their self acquisitions and were not partible. Both the parties led oral and documentary evidence. The respondent No. 3 who had figured as the defendant No. 3 in the suit, was an alienee in respect of some lands transferred in his favour by his son-in-law (respondent No. 2).

(2.) The learnened Subordinate Judge accepted the case of the appellant and decreed her suit for partition in respect of the ancestral properties only. The case of the respondent Nos. 1 and 2 in respect of the disputed lands was accepted. The learned counsel for both the parties have submitted that the appeal has been preferred by the respondent Nos. 1 and 2 against the decree in part passed in favour of the appellant.

(3.) Mr. Misra, appearing for the appellant, has submitted that on the facts and in the circumstances of the case it would not be said that the disputed lands were the self-acquisitions of the respondent Nos. 1 and 2 and that the settlement of the said lands with the respondent No. 2 under the Act would only indicate that he had held the lands in trust and had acquired the same not out of his own income, but out of the joint family income and thus the lands could not be said to be the self-acquired properties of the respondent Nos. 1 and 2. Mr. Patnaik for the respondent Nos. 1 and 2 has submitted that these contentions raised on behalf of the appellant cannot prevail and the findings recorded by the Court below in favour of the respondent Nos. 1 and 2 are correct and cannot be assailed.