PADMANAVA BASTIA Vs. PURNA CHANDRA BASTIA AND OTHERS

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned 3rd Additional District Judge, Cuttack in RFA No. 156/12/38 of 2014. By the said judgment and decree, the learned Addl. District Judge having dismissed the appeal has confirmed the judgment and decree passed by the learned 1st Addl. Civil Judge (Sr. Divn.), Cuttack in T.S. No. 249 of 1999 in dismissing the suit of the plaintiff-appellant.

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

(3.) Plaintiff's case is that Narahari Bastia is the common ancestor of the parties. He had two sons namely, Kelu and Hadibandhu. The plaintiff and defendant Nos. 9 to 15 are the successors-in-interest of Hadibandhu whereas defendant Nos. 1 to 15 are the successors-in-interest of Kelu. The suit has been filed for partition of schedule 'B' property comprising an area of Ac.079 decimals covered under seven plots under the Consolidation Khata No. 310 corresponding to Settlement Khata No. 86 of Mouza Nuapada in the district of Cuttack. It is the case of the plaintiff that in Title Suit No. 42 of 1995, their ancestral properties had been partitioned and accordingly final decree had already been drawn on 28.3.1996. However, this property though was the joint family property was not the subject matter of the said suit and that too it was not then within the knowledge of the plaintiff. This came to be known by him after he received notice in Revision Petition Case No. 484 of 1999 from the revisional authority under the . Then having coming know about the property to be the joint family property left out of purview of earlier suit, he demanded a partition of the said property with the defendants and as the same was refused, he filed the suit. The defendant Nos. 1 to 5 while traversing the plaint averments have averred that two sons of Narahari namely, Kelu and Hadibandhu had separated themselves both in mess and estate in the year 1955 during the lifetime of Narahari and since then they were enjoying separate property while staying separately. The jointness as the members of the joint family was no more there. It is further stated that after said separation, Kelu started business of his own and by dint of his own labour with his funds, he purchased the suit land. He was running the business and purchased the suit land from out of his own income derived therefrom. Since the time of purchase, he remained in possession as it was his self-acquired property. It is stated that neither the plaintiff nor his father had possessed the suit land. In the year 1984, the land was thus recorded in the name of Kelu Bastia. It is alleged that the plaintiff in connivance with the consolidation staff during the consolidation operation got his name included in the relevant khata in respect of the suit land and said inclusion was per se illegal. So there was a challenge to the same in Revision Petition Case No. 4884 of 1999 and the illegality has accordingly been set at naught by the order of the revisional authority. The defendant Nos. 6 to 8 wholly supported the case as projected by the defendant Nos. 1 to 5 in their written statement. The defendant Nos. 8 to 12, and 15 while disputing the claim of the plaintiff as regards the partition of schedule 'B' land, they claimed to have equal right, title and interest over the suit properties as that of the plaintiff since the properties though stood purchased in the name of Kelu, it was the joint family property having been purchased by utilizing the joint family income. They assert that the settlement authority had illegally recorded the suit land in the name of Kelu alone and the decision of the revisional authority with regard to the recording of the suit land is binding on them. So they claim to have got share over said schedule land. It is stated that there was an amicable partition of the joint family properties but the suit land was partitioned. It is stated that the tile factory was of the joint family and Kelu was managing it during the lifetime of Narahari and after Narahari as karta of the family, the plaintiff was assisting him in that. However, it is again stated that Kelu and Hadibandhu were separate in mess and estate since the year 1955. After separation Kelu has purchased land out of his own income and so they plead that the plaintiff's suit is liable to be dismissed.