SIDHARTHA DEV Vs. STATE OF ORISSA AND ANOTHER

JUDGEMENT

(1.) This appeal has been filed by the unsuccessful plaintiff challenging the judgment and decree passed by the learned Additional District Judge, Sambalpur in Title appeal No. 22/17 of 1985/1986 confirming the judgment and decree passed by the learned Subordinate Judge, Deogarh in Title Suit No. 19 of 1984. The trial court having dismissed the suit, the plaintiff had moved in appeal. The lower appellate court while dismissing the appeal has concurred with the findings of the trial court leading to the dismissal of the suit.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) Plaintiff's case is that the paternal grandfather had landed property in village Deogarh, Khanda Dhuan, Mohinipur, Bhaliadihi and Purunagarh in Deogarh Sub-Division in the district of Deogarh. It is stated that most of those lands were 'Kharpos' lands. The grandfather of the plaintiff died in the year 1952 leaving his successors namely, Sashibhusan Dev, Hari Prasad Dev, Hara Prasad Dev, Girij Shankar Dev and Manjushri Dev. They were all separate in mess and estate living in different parts of the country having different avocation of life. It is stated that after grandfather's death, mutation was made and all properties remained joint and their respective shares had been separately carved out on the abolition of the 'Kharpose' grant under the provisions of Orissa Estate Abolition Act, 1951, though each brother has been settled with occupancy right in respect of the lands under respective share and possession. The plaintiff is the son of defendant No. 3 and he had another brother who died in the year 1976. His case is that much prior to the year 1960, he was living at Barbil in the district of Keonjhar carrying on Mining business. Since then he was in all respect separate from his father and younger brother. The younger brother was living with his father till his death. It is, further stated that the land over which the father of the plaintiff had got in his share in the family partition amongst his brothers had also been partitioned and subsequently there was partition between the plaintiff and his father and it was evidenced by a document executed on 25.01.1967. The plaintiff claims to be having separate cultivation of the lands. It is next stated that after coming into force of Chapter - IV of the OLR Act, father of the plaintiff as the owner in respect of his share of land filed the return. So OLR Ceiling Case No. 111 of 1974 was initiated on 20.05.1974. The Tahasildar though had given finding that the plaintiff and defendant No. 3 had separated from each other and so each one was entitled to a separate ceiling holding. In view of that no ceiling surplus land was found out so as to vest with the State, yet it was indicated as open for further verification. Thereafter, on 25.05.1976 without any notice, enquiry was made and the plaintiff and defendant No. 3 were found to be living in joint mess and estate without any partition between them. So, surplus lands were found out to be there in the hands of defendant No. 3. An appeal was preferred challenging the said order before the Collector, Sambalpur. The case was then remanded to the Tahasildar, Deogarh for further enquiry but then also the same finding against the separation was rendered. Accordingly, the final statement was prepared and thereafter notice being given to take over possession of ceiling surplus land, the suit had been filed.