BISESWAR GIRI Vs. HARAPRASAD BEHERA

JUDGEMENT

(1.) THE disputed lands appertain to plot Nos. 1993, 1994 and 1995 in Sikimi Khata no. 5 in village Mahespur in the district of Balasore. These plots respectively constitute Bari, Ghar and Puruna padia with an area of 0. 26, 0. 10 and 0. 59 acres. Advocates for the parties do not dispute that the suit lands constitute homestead within the meaning of Section 236 (1) of the Orissa Tenancy Act (hereinafter to be referred to as the Act ). One Ambika Prasad Das was the Sthitiban tenant of these lands. He had two sons, Biswanath and Kshetramohan. They transferred the disputed lands to one Radhakrishna by a registered sale deed (Ex. 2) on 24-4-45. Radhakrishna sold the same by another registered document (Ex. 3) to Bhagaban behera and his brother on 17-3-47. Bhagaban and his brother sold the disputed lands to Hadi Behera by a registered sale deed (Ex. 6) on 29-10-49. Hadi Behera sold the disputed lands by a registered sale deed (Ex. 5) to the plaintiff on 10-1 51. Plaintiff's suit is for declaration of title and recovery of possession on the strength of this sale deed. In respect of this land, admittedly one Sebak Das was the sikimi tenant (underraiyal ). Sebak Das had four sons, Parbati, Daina, Balaram and Durgi. Defendants nos. 3 and 4 are the daughters of Parbati, who died in 1942. Defendant No. 7 is the son of Daina. Defendant No. 5 is the daughter of Balaram who died before 1942. Defendant No. 6 is the son of Durgi. In the current settlement khatian, parbati, Daina, Balaram and Bichitra (D/6) were recorded as sikimi tenants. Plaintiff's case is that as Parbati and Balaram died son-less, while living in a state of jointness, Daina, Madhusudan and Bichitra became the owners of the property. In 1942, the house collapsed by a cyclone. The sikimi tenant abandoned the disputed lands and went over to another village Perili where they resided. As the disputed lands were abandoned, the recorded Sthitiban tenants Biswanath and kshetramohan entered into khas possession whereafter they transferred the lands to Radhakrishna as already stated. On 28-11-57, defendants Nos. 3, 4 and 5 transferred by a registered sale deed (Ex. F) Rs. 0-10-8 pies interest in the disputed lands to defendants Nos. 1 and 2 who threatened to disturb plaintiff's peaceful and undisturbed possession. Plaintiff accordingly filed the suit for declaration of title, confirmation of possession and in the alternative for recovery of possession. Defendants Nos. 1 and 2 contested the suit. Defendants No. 3, 4 and 6 supported defendants Nos. 1 and 2. Defendant No. 7 supported the plaintiff's case. The case of the defendants Nos. 1 and 2 is that there was severance of joint status amongst the sikimi tenants Parbati, Daina, Balaram and Durgi. Defendants Nos. 3 and 4 are entitled to Rs. 0-4-0 and defendant No. 5 is entitled to another Rs. 0-4-0. Defendants Nos. 1 and 2 are, therefore, entitled to Rs. 0-8-0 of the disputed property, though by mistake Rs. 0-10-8 pies were sold and they were prepared to surrender the excess of Rs. 0-2-8 pies.

(2.) THE trial Court accepted the plaintiff's version that the sikimi tenants abandoned the disputed lands in 1942 and that Biswanath and Kshetramohan entered into possession of the disputed lands thereafter. He accordingly decreed the plaintiff's suit. In appeal, the learned Addl. Subordinate Judge held that the plaintiff failed to establish abandonment by the sikimi tenants. Though he held that Ex. 5 validly conveyed the occupancv right, he dismissed the plaintiff's suit on the finding that defendants Nos. 3 to 5 transferred the sikimi right to defendants Nos. 1 and 2 under a valid sale deed (Ex. F ). Against the appellate decree the second appeal has been filed.

(3.) MR. Sinha does not assail the findings of the lower appellate Court on the question of abandonment. It must, therefore, be held that the sikimi tenants did not abandon the disputed lands in 1942, as alleged by the plaintiff. Plaintiff's further case that Biswanath and Kshetramohan entered into khas possession of the lands in 1942 and thereafter the successive transferees under Exs. 2, 3, 6 and 5 came into possession was negatived by the learned Addl. Subordinate Judge. Mr. Sinha rightly did not assail this finding.