CHANDRASEKHAR RAULA Vs. GANGADHAR RAULA

JUDGEMENT

(1.) In this writ petition the petitioner, defendant No, 1 in a suit for partition, assails the orders dated 16-11-94 (Annexure-4) and 22-12-95 (Annexure7) of the Civil Judge (Senior Division), Berhampur, in F. D. T. S. No. 25 of 1976 and the revisional order dated 16-2-96 (Annexure8) of the District Judge, Ganjam Berhampur in Civil Revision No. 8 of 1996.

(2.) The case of the parties is as follows :Opposite party No. 1 filed Title Suit No. 25 of 1976 against the present petitioner and others for partition of the family property. In the said suit a claim was also made for distribution of the usufructs of the Palis performed by the members of the family as Sebayats of deity Chandrasekhar in Berhampur town. A preliminary decree was passed in the said suit defining the respective shares of the parties. The petitioner filed First Appeal No. 300 of 1970 before this Court. While disposing of the said first appeal on 2-11-93, this Court modified the trial Court decree holding that the plaintiff, the present petitioner and his mother (defendant No. 2) had each one-third share in the residential house of the parties. With regard to the 96 days Pali in a year available to the family for Seba Puja of the above deity this Court directed that each of them shall have 32 days of Pali in a year. Thereafter, the plaintiff filed an application for final decree as per Annexure-2. In the said final decree proceeding opposite party No. 1 (plaintiff) filed a petition alleging that the present petitioner was not allowing him to perform the Seba Puja as per the direction of the Court and, therefore, prayed the Court to fix the specific days for performance of Pali. The Court considering the admission of both the parties that their mother, had died during the pendency of the first appeal and that both had succeeded to her interest equally, held that 8 days Pali in a month should be divided half and half. Since the petitioner is the elder brother, the Court allotted the first four days i. e. 9th to 12th days in the month to him and the rest four days i.e. 13th to 16th of the month in favour of opposite party No. 1. The present petitioner being aggrieved by that order dated 16-9-94 filed Civil Revision No. 53 of 95 which was also dismissed by the 2nd Additional District Judge, Berhampur on 25-7-95.

(3.) The main thrust of argument of Mr. Rao, learned counsel for the petitioner, is two fold. Firstly, allotment of equal Pali between the plaintiff and the petitioner (defendant No. 1) by the impugned order is illegal inasmuch is this petitioner did not concede before the Court the distribution of his mother's Pali half and half nor if any such concession was made by the learned counsel appearing for him, the same is not binding on him, and secondly, no preliminary decree can be made enforceable unless a final decree is drawn pursuant to such preliminary decree.Mr. Ratho, on the other hand strenuously urged that the plaintiff has been deprived of the Seba Puja as well as the usufructs received from the said Seba Puja for more than twenty years and this is being appropriated by the petitioner alone. It was further submitted by Mr. Ratho that the order dated 16-11-94 should have been challenged in an appropriate civil forum and this having not been done, it would not be proper for this Court to enter into the disputed facts so pleaded.