DURYODHAN NAIK Vs. RATNAKAR NAIK AND ORS.

JUDGEMENT

(1.) ONE Baladeb Naik had two sons Ratnakar (Defendant No. 1) and Duryodhan (Petitioner). Defendants 2 to 4 are the sons of Defendant No. 1. The suit was for partition of 4 schedule lands consisting of 87.77 acres and B schedule lands with an area of 1.90 acres. The trial Court decreed the suit for partition in respect of the B schedule lands which are raiyati lands. No appeal was filed against decree by the Defendants and so the matter became concluded and final. The Petitioner filed an appeal against the judgment of the trial Court refusing partition of the A schedule lands. Plaintiff 's case is that the A schedule lands were Bhogra lands belonging to the joint family of the parties ever since the time of their ancestors and he is entitled to a moiety by partition. In support of the Petitioner 's case the record of rights (Bhogra Parch a of village Kuarmal - Ext. 1) has been produced. The Petitioner has been recorded as the raiyat in respect of the A schedule lands. The defence case is that the A schedule lands are Bhogra lands belonging to the State. The family of Defendant No. 1 were in possession of the Bhogra lands from the time of their ancestors and after them Defendant No. 1 was acting as the Gountia of the village. In the year ,1961 the Gountia system was abolished and Defendant No. 1 had to surrender die Bhogra lands. According to a Press Communique issued by the State Government these Bhogra lands were distributed in a particular manner and the lands in possession of the co -sharers and other persons were to be settled with them on raiyati basis. In accordance with this arrangement a settlement was made whereunder the Petitioner got 16.14 acres and Defendants 1 to 4 respectively got 19.06 acres, 17.94 acres, 13.56 acres and 11.92 acres; The Grama Sabha was given 4.61 acres. Moreover tenants who were in possession were also settled with some lands. The contesting Defendants got a fresh title by the settlement and the A schedule lands were not available for partition as claimed by the Petitioner.

(2.) BOTH the Courts below have accepted the defence version and rejected the Petitioner 's case for partition in respect of the A schedule lands.

(3.) THE success of the Petitioner would depend upon under what class of cases the present case falls. In the plaint itself the Petitioner did not plead that the disputed A schedule lands were raiyati lands of the family and they were impressed with the character of Bhogra by mere remission of rent during the tenure of the Gountia. The plaint merely averred that the disputed A schedule lands were joint family lands. The assertion that the lands were joint family lands does not sufficiently make out a case that the lands were raiyati lands. Mr. Das for the Petitioner Appellant laid great emphasis on Ext. 1 which shows that in respect of the Bhogra lands comprised in the A schedule the Petitioner was recorded as the raiyat. Doubtless the entry creates some probability that the lands might have been raiyati, otherwise there will be no such entry. But this is sufficiently whittled down by the fact of absence of pleadings and proof in the case that originally these properties were acquired by the family as raiyati lands.