Orissa High Court
Menaka Manjari Padhy & Others vs Nilachal Padhy & Others on 1 March, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.467 of 2023
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and decree dated 31.07.2023 &
09.08.2023 respectively, passed by the learned Additional District Judge,
Aska in R.F.A. No.01 of 2021, confirming the judgment and decree dated
24.08.2021 & 06.09.2021 respectively passed by the learned Civil Judge,
Senior Division, Aska in T.S. No.51 of 1997.
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Menaka Manjari Padhy & Others .... Appellants
-versus-
Nilachal Padhy & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- M/s. Ashok Kumar Pradhan,
S. Pattanayak, S. Mishra
(Advocates)
For Respondents - -------
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING :16.02.2024 :: DATE OF JUDGMENT:01.03.2024 D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the judgment and decree dated 31.07.2023 & 09.08.2023 respectively, passed by the learned Additional District Judge, Aska in R.F.A. No.01 of 2021. Page 1 of 9 R.S.A. No.467 of 2023
{{ 2 }} One Bhagaban Padhy, the predecessor-in-interest of these Appellants as the Plaintiff had filed the suit (T.S No.51 of 1997) for partition of the properties described in the schedule of the plaint and other reliefs arraigning the predecessor-in-interest of Respondent No. 1 to 6, namely, Sitaram Padhy and also the Respondent No.7 to 11 as the Defendant No.2 to 6.
The suit stood dismissed. The Appellants as the unsuccessful Plaintiffs had carried an Appeal under section 96 of the Code, which too has been dismissed. Hence the present Second Appeal is at the instance of the Appellants, who have remained unsuccessful in both the Courts below.
It is pertinent to mention here that during pendency of the suit, the sole Plaintiff Bhagaban Padhy having died on 12.09.2017, his legal representatives, who are the present Appellants, came to be substituted in his place and they prosecuted the suit as the substituted Plaintiffs. Similarly, the original Defendant No.1 Sitaram Padhy, having died during pendency of the suit, his legal representatives as stated above have come on record as the Defendants.
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 Suit.
Page 2 of 9 R.S.A. No.467 of 2023
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3. The case of the Plaintiffs is that the suit land belongs to the original Plaintiff and the original Defendant No.1, who are two brothers being the sons of Biswanath Padhy. The suit land has been jointly recorded and the Record of Right has been prepared in their names in the consolidation operation by the Consolidation Authorities. Bhagaban Padhy was adopted by his paternal uncle late Somanath Padhy, brother of Biswanath Padhy. Bhagaban Padhy being the elder brother was looking after the suit schedule property. Usufructs thereof was being divided between Bhagaban and Sitaram acknowledging the joint ownership and possession and the Consolidation Authorities have prepared the Record of Rights accordingly. It is stated that original Defendant No.1, being misguided by his son Nilachal and other family members wanted to alienate the suit properties. When the Plaintiff enquired the fact from the original Defendant No.1, he declared that he is the sole owner of the properties and Plaintiff has no right, title over the same. On 30.06.1997, the Defendant No.1 and his son refused to give any share from out of the suit land to the original Plaintiff and made preparations to alienate the suit property. In fact, during pendency of the suit, the original Defendant No.1 alienated the suit land to Defendant No.2 to 6. The Plaintiffs claim partition of the suit properties into equal half by declaring registered Page 3 of 9 R.S.A. No.467 of 2023 {{ 4 }} sale deeds executed by original Defendant No.1 during pendency of the suit as void and not binding upon him.
4. The Defendant No.1 in his written statement while traversing the plaint averments stated that the original Plaintiff being the adopted son of Somanath, he has no right, title and interest over the properties of his natural father, Biswanath. He has succeeded to the properties of his adoptive father Somanath. This original Defendant No.1 has denied that the suit land belongs to him and the original Plaintiff and that the usufructs were at any time being divided. It is stated that Sitaram on his own right has sold the lands and the Plaintiffs cannot question the same. It is his case that the suit land were originally Inam lands and the OEA Collector after due enquiry and upon observing all formalities had settled the land measuring Ac 1.09 decimal in his name in C.P. No.415/71. Accordingly, rent roll was issued on 19.09.1972 with effect from 11.12.1964. The Plaintiff has never challenged the said order of the O.E.A, Collector, which has attained its finality. During Consolidation Operation, the Assistant Consolidation Officer has passed the order for recording of the land in the name of the original Defendant No.1. The original Plaintiff had filed objections before the Consolidation Officer, which stood numbered as Objection Case No.62/1982 and 66/1982 and those objections have been overruled and cases had been dismissed. The original Page 4 of 9 R.S.A. No.467 of 2023 {{ 5 }} Plaintiff then had filed Appeal before the Deputy Director of Consolidation which was registered as the Appeal Case No.91 of 1983. The Appeal being allowed, the original Defendant No.1 had carried Revision to the Commissioner of Consolidation, which stood allowed and the order of the Deputy Director in the Appeal was set aside in that Revision Case No.169 of 1984. The original Plaintiff then filed writ petition before this Court impeaching the order of the Revisional Authority. The writ petition was dismissed on contest. Basing upon the same, the Tahasildar in Mutation Case No.1186 of 1995 has issued the Record of Right on 31.07.1995 in the name of the original Defendant, which has been holding the filed all along.
It is next stated that the land under plot no.584 in Khata No.670 is the ancestral property of original Defendant over which, he has constructed a pucca house and the original Plaintiff had no right over that plot of land. The land under plot no.598 measuring Ac 0.034 decimal is stated to be the self acquired property of the original Defendant No.1 which he has purchased under registered sale deed in the year 1960 for valuable consideration and thus is in exclusive possession of the same. On all these grounds, the original Defendant No.1 prayed for dismissing the suit.
Page 5 of 9 R.S.A. No.467 of 2023
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5. The Defendant No.2 to 6 in their written statement have asserted all in favour of the claim of the original Defendant. In stating that the Plaintiffs have no manner of right title, interest in possession of the suit land as original Plaintiff is the adopted son of Somanath, these Defendant No.2 to 6 claimed to have purchased the lands under several sale deeds for valuable consideration and being settled with the possession of the same, they claim to be in peaceful possession of all those lands.
6. On the above rival pleadings, the Trial Court has framed as many as six issues. While answering all those above, upon examination of the evidence both oral and documentary on record and their evaluation, the finding has been rendered that the original Plaintiff had been adopted by Somanath, who happens to be his paternal uncle (father's brother). Having said that it is held that the original Plaintiff had severed all his links with the family of his natural father. Finally, it has been said that the suit lands are not the joint family property so as to be partitioned between the Plaintiffs and Defendant No.1(a) to 1(f). The suit having thus been dismissed and the Plaintiffs thus being non-suited, carried the First Appeal, which too has been dismissed.
7. Heard Mr. A. K. Pradhan, learned counsel for the Appellants at length. Page 6 of 9 R.S.A. No.467 of 2023
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8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.
9. The findings of the Courts below on independent assessment of the evidence both oral and documentary on record in the backdrop of the rival pleadings is concurrent on the score that the original Plaintiff Bhagaban whom these Appellants represent being his legal representatives had been adopted by Somanath Padhy, who is the brother of Biswanath Padhy, the natural father of the original Plaintiff and the original Defendant No.1. This finding has been rendered relying upon the evidence let in by the Plaintiffs as well as the long standing conduct of the parties. It is, also in evidence that the original Plaintiff Bhagaban and original Defendant Sitaram had been residing in separate houses being divided with a wall standing in the middle in between. The Plaintiff's evidence is that he had sold the gold ornaments of his adoptive mother to purchase land in his name. Basing on the evidence, the Courts below have said that the original Plaintiff grew up as the son of Somanath with such representation and declaration. When such is the evidence, in the absence of any sort of infirmity being noticed therein, this Court is of the view that said finding is unassailable. More particularly, when the Plaintiff himself has stated in his plaint to have been adopted by his uncle (elder brother of his natural father Biswanath, namely, Somanath) Page 7 of 9 R.S.A. No.467 of 2023 {{ 8 }} and does not disown that status and also does not state to have not taken all the property of Biswanath. His evidence is that even though he had been adopted by another family, he has a share over the suit property. It has been specifically stated by him that at the age of 4 or 5 years, he had been taken on adoption and he is staying in the portion of the ancestral house allotted to Somanath, which is on the western portion of the house allotted to Biswanath. P.W.2, 3, 4 all have unequivocally stated about the adoption of the original Plaintiff. In view of such overwhelming evidence on record, the Courts below are found to have committed no error at all in holding that original Plaintiff had nothing to do with the properties of his natural father. So with that finding, the original Defendant No.1 has rightly been held to have succeeded to the entire property of Biswanath which now have come to the hands of his legal representatives i.e., Defendant No.1(a) to 1(f).
It further reveals that the Consolidation Record of Right relating to the suit land has attained finality after the matter was set at rest by the order passed by this Court in OJC NO.1513 of 1990 whereafter the lands have been recorded in the name of original Defendant No.1. By such document, title of the original Defendant No.1 over the suit land stands established and so also his possession. The Plaintiff having fought before the Consolidation Authorities during Consolidation Operation have finally lost the battle. Page 8 of 9 R.S.A. No.467 of 2023
{{ 9 }} Therefore, on that ground also, the suit for partition is liable to be dismissed since the Consolidation Authorities having the power to decide the right, title, interest over the suit property, have so declared in favour of the original Defendant and the Record of Right has finally been published in the name of original Defendant No.1.
10. In the wake of aforesaid, this Court feels inclined to dismiss the Appeal finding that there surfaces no substantial question of law for being answered.
11. In the result the Appeal stands dismissed. No order as to cost.
(D. Dash), Judge.
Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 05-Mar-2024 10:57:25 Page 9 of 9 R.S.A. No.467 of 2023